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Introduction: The Role of State Constitutions Amending the Constitution Summary of Hawaii State Constitutional Conventions Pros and Cons: Reasons for and Against ConCon

INTRODUCTION The Role of State Constitutions The preface to State Constitutions in the Federal System prepared by the Advisory Commission on Intergovernmental Relations in 1989 says the American federal system rests on two constitutional pillars: the fifty state constitutions and the United States Constitution. Metaphorically speaking, if one pillar is cut down in size or raised too high, then the federal system becomes unbalanced. In many respects, this is what has happened to our federal system. This report suggests that the U.S. Constitution is incomplete. "It is predicated on the continued existence and vitality of state constitutions. Unlike many constitutions in Europe and elsewhere in the world, the Constitution of the United States is silent, or mostly silent, on such fundamental constitutional matters as local government, finance, education and the structure of state and local government. These and other constitutional matters are left to the states to resolve, in keeping with their own needs, preferences and traditions. Thus the complete American constitution includes both the Constitution of the United States and the constitutions of the fifty states – both as they are written and as they are implemented and interpreted by judges and other government officials." The US Constitution delineates the powers which were originally relegated to the federal government. These powers were relegated by representatives of the original 13 states to the first U.S. Constitutional Convention where our Constitution was drafted. State constitutions limit the powers of the state government. Quoting from the above report, "Generally speaking, because of the necessity to enunciate specific limitations on the otherwise virtually unlimited governmental power, state constitutions contain much more detail. They contain long articles on taxation and finance, two of the most important functions of any government. These provisions restrict state government taxing and spending in a range of ways that is unfamiliar in the federal government." State constitutions allow for more citizen involvement in its drafting and amendments. They are easier to amend. It is suggested in State Constitutions in the Federal System that the stability of the U.S. Constitution has been made possible in part because of the capacity of the states to adopt new constitutions or to amend their constitutions to meet changing social economic conditions. In State Constitutional Conventions: the Politics of the Revision Process in 7 States, the authors say, "The most frequently stated normative prescriptions for written constitutions are they be relatively brief documents that set forth the structure of governments, and they state clearly the major limitations placed upon government." Governments are said to function more effectively under constitutions that contain a simple digest of fundamental principals rather than a series of long and detailed statutory provisions. Most of the original state constitutions were noted for their brevity, but through the years, as the political, social, and economic changes took place, states have, through amendments and wholesale revision, ended up with rather lengthy documents cluttered with detail, whereas the federal constitution has been adapted to a changing society chiefly by a more liberal interpretation of the various provisions. According to many authors, one contributing factor to the lengthening of state constitutions has been the erosion of the trust citizens have in their state governments. With perceived and real abuses of power by state officials, the citizens have resorted to adding more limitation on their powers.

Amending the Constitution Amendments Proposed by Legislatures The most common of the methods of constitutional change has been amendments proposed by legislatures. In the1992-93 biennium, 201 of the 239 amendments submitted to voters by states nationwide had been legislative proposals. According to the 2006 edition of The Book of the States, a publication of the Council of State Governments, between 2001 and 2005, there were 515 legislative proposals for amendments on the ballots of the various states; 391 of these were adopted by voters for an adoption rate of 76%. For reasons such as cost and fear of loss of political power, legislators have opted for this piecemeal revision of the state charters rather than convening a constitutional convention. In Hawaii, the legislature has proposed constitutional amendments almost every year for some time now. In our state, as in thirteen other states, the constitution mandates the placement of the call for a constitutional convention on the ballot. Constitutional Conventions and Commissions Constitutional conventions and commissions are usually thought of as institutions for accomplishing wholesale constitutional reform. The constitutional convention is the oldest and most traditional method for extensive revision. According to the 1994 edition of the Council of State Government's Book of the States, as of January 1, 1992, 233 conventions, including the 1982 convention in the District of Columbia had been held in the U.S. No convention had been held since 1986 until the Louisiana Legislature called itself into session as a convention in 1992 to resolve fiscal problems, but the amendments proposed by the convention were turned down by voters. In Hawaii, for the last 20 years, calls for a ConCon have been routinely turned down by voters. Several states, however have been considering conventions. In Oklahoma, there is a bill going through their legislature calling for one to be placed on the ballot in November. It's a long bill that includes enabling legislation so that the people know exactly what they're voting for. Voters in Illinois will also be voting on the question this November. Commissions are generally appointed to review a state constitution and suggest revisions. In almost all of the states that use commissions to review their constitutions, the proposals go to the state legislatures which decide which proposals to present to the people for ratification. In Florida, the proposals of the commission go directly to the people for approval. Constitutional Initiative The popular initiative form of constitutional amendment available in 18 states, (Massachusetts and Mississippi have indirect initiative), had met with relatively little success at the polls until the '90s. However, according to the Book of the States, during the 1991-93 biennium, the constitutional initiative generated 34 proposals nationwide, a record high as measured by biennium averages during the past 60 years. Of these constitutional initiatives, 21 were approved by voters, a 62% rate compared to the average rate of 33% for approval ratings of constitutional amendments before then.

Summary of Hawaii State Constitutional Conventions Hawaii has had three constitutional conventions since our annexation. The 1950 Constitutional Convention was held before Hawaii achieved statehood. According to Anne Feder Lee's The Hawaii State Convention - A Reference Guide published in 1993, "The underlying motivation for adopting this course of action was to remove all congressional doubts about Hawaii's qualifications for statehood. With a completed constitution ready to implement, Congress would be convinced by its advance adoption that the people of Hawaii accepted American values and were ready to be a part of the Union." The 1950 Hawaii Constitution was praised in part for its brevity (14,000 words). According to Lee, The National Municipal League applauded it for setting "a new high standard in the writing of a modern state constitution by a convention: and for resisting "virtually all temptations and pressures to include the kind of restrictive and legislative details that has so encumbered most of the constitutions of the older states." In 1964, the U.S. Supreme Court ruled in "Reynold v Sims" that both chambers of a state legislature must be apportioned on the one person-one vote principle. When the Hawaii State Legislature could not come up with a satisfactory apportionment plan, the Federal District Court ordered the Legislature to place a question of calling a constitutional convention on the 1966 ballot so that a convention could propose a permanent districting plan. This resulted in the convening of the 1968 convention. The 1978 convention was held with 74% of the voters approving the holding of a convention in 1978 versus 26% opposing. The "question" had been placed on the ballot in the 1976 election in compliance with a provision in the Hawaii constitution which mandates the question every 10 years. No one issue demanded attention --just a general dissatisfaction with government. There was a general consensus that there should be grassroots involvement. Only 2 incumbents and 2 former legislators who ran were elected. Citizen groups, including the League of Women Voters, were very much involved in preparing the citizenry for this convention and in identifying the issues that needed to be addressed. Quoting from Lee's book, "Starting as a relatively short, simple, and highly praised document, Hawaii's constitution has become longer and more detailed. The Statehood Constitution contained about 14,000 words, making it one of the shorter state constitutions. The current document stands at around 17,500 words, placing it midrange among state constitutions. In defense of this greater girth, many of the amendments have added to the rights of Hawaii's citizens and have contributed to making the constitution fairly progressive. With respect to its provision relating to ethnic Hawaiians and their culture, it stands out as unique. Many of the amendments, particularly those authored by the 1978 convention, introduced significant new responsibilities to be undertaken by government. Yet the Hawaii constitution still succeeds in avoiding much of the excessive detail found in some of the other state constitutions." In 1986 when the question on whether to hold a ConCon was placed on the ballot, over 50% of the voters rejected a convention. In 1996, the question drew 163,869 “yes” votes, 160,153 “no” votes, and 45,335 blank and spoiled ballots. The State interpreted this to mean that we would have a ConCon, but, this was challenged by the AFL-CIO in court, and the Hawaii Supreme Court ruled in March of 1997 that the blank and the spoiled ballots counted as “no” votes, and so the call for a ConCon had been defeated. (The “yes” votes must be at least 50% of all of the ballots cast in the election including the blank and spoiled ballots.) A group of ConCon supporters then appealed that decision to the Federal District Court here in Honolulu, and Judge David Ezra ordered another vote on the question within 60 days. Among other things, he felt that voters had the right to know before they voted, how their votes were going to be counted. The State appealed Judge Ezra's ruling with the Ninth Circuit Court of Appeals. A three-judge panel granted a stay on the District Court ruling, and in March of 1998, reversed that ruling. While the 9th Circuit was considering the plaintiffs' appeal for a rehearing en banc (meaning the whole court), the Hawaii State Legislature passed a bill providing for a second vote in November of 1998, and with the governor's signature in June, the question before the 9th Circuit Court was moot. In the 1998 Election, voters rejected a ConCon 59.3% to 34.1%.

Reasons for and Against ConCon The following responses are from our interviews and survey questionnaires. The public is invited to send in any other arguments pro or con they would like us to add to this list.
PRO YES TO CONCON It is always healthy to reexamine our governing structure periodically. After 30 years, it is time to involve our public in reevaluating our priorities and making improvements to our governing system. In 30 years, our values have changed. It is time to do a comprehensive review holistically instead of amending it piecemeal by legislatively proposed amendments. Each generation should have the chance to revise the constitution based on their own understanding of the role of government. We need to rewrite the entire constitution. Many people are not even aware of our state constitution. This is a good opportunity to educate the public on our governing document and our government structure. ConCon would introduce a new group of citizens into the governmental process and encourage new faces in the Legislature. ConCon would be a source of new leadership. Issues coming before the legislature not always resolved. We need longer sessions and fewer bills introduced each session to allow for better deliberation of policies. Despite increased risk of having more departments and agencies adopted (OHA in last ConCon), and risk that special interest groups will dominate the convention, it is still important to have one. We need to review the roles and powers of the executive and legislative branches and strike a balance of powers between them. We need an elected Attorney General. The number of senate districts should be reduced to 12, with two senators elected from each district with the Lieutenant Governor serving as tie breaker. This will implement the policy of the House members representing the local precincts and the senators taking a broader view on state issues. We need to move to multi-member districts. There is a need for structural changes in the legislative branch such as term limits and a change to a unicameral legislature. The legislative process is not very transparent. The legislature does not meet long enough, so it is difficult for the public and the media to keep track of legislative bill changes and outcomes. A longer session would help increase transparency. This could be addressed without a ConCon, but a ConCon may be seen as a more likely route to more transparency. We should allow smaller and more locally autonomous governing bodies. We need to review the roles of state and counties giving stronger home rule authority to the counties. Too many decisions affecting the neighbor islands are being made in Honolulu, which becomes a barrier to citizen participation in the enactment of policies. The neighbor islands are growing in population and require greater decision-making authority by those most affected by those decisions. The county governments should be able to determine the future of their respective counties according to their vision of what the future should hold. We need to give greater taxing authority to counties. Formation of smaller government entities with their own taxing abilities should occur in order to release creativity, responsibility and authority necessary to bring local accountability. ConCon is the only way we can achieve public funding of election campaigns – the reform that makes all other reforms possible. Right now we have legalized bribery and 99% of us are not playing the game. Recently adopted amendments, such as the marriage amendment, need review. Current provision in our Bill of Rights giving the legislature the right to ban same sex marriage should be removed. Civil unions should be recognized. A Department of Aging needs to be established. We need provisions for universal health care, including long-term care. We need to address affordable housing. Need to review independent boards and commissions created by the legislature. We need provisions for initiative and referendum. The Legislature will never support this. The structure and functions of DOE and BOE need to be reviewed. The structure and functions of the State Department of Transportation should be reviewed. A total reorganization of the Department of Education is needed. There is a need for local school boards. The people in the school districts are most familiar with their problems and needs. We need adequate support and funding parity for charter schools. Articles X, Section 6 needs to be amended to remove the word “exclusive” from the sentence “The board (Board of Regents) shall have the power, as provided by law, to formulate policy, and to exercise control over the university through its executive officer, the president of the university, who shall be appointed by the board; except that the board shall have exclusive jurisdiction over the internal structure, management and operation of the university.” There needs to be a degree of oversight by the legislature as well as an appeals process. There is a need for a more independent Reapportionment Commission. Different appointing authorities should be considered. We need to secure the permanency of the Office of Information Practices by codifying it in the constitution. Included should be enforcement powers. There is a need for the power of optional referendum -- the right of the people to overturn laws just enacted they deem unfair and/or unwise, by gathering required numbers of signatures of citizen and placing the question on the ballot in the next election or special election. We need to provide for the restructuring of OHA through privatization. The structure and functions of the State Department of Transportation should be reviewed. The Akaka bill will probably be signed in 2009, and in place and our constitution needs to anticipate and allow for native Hawaiian rights negotiations.	CON NO TO CONCON The constitution needs to be a set of principles and not require constant revision. It should be broad enough to allow for flexibility on the part of legislators to meet changing demands. There are no glaring deficiencies or problems with the constitution and the alternative process of working through the legislature seems to be working fine. Our constitution is well-written and except for bio-prospecting issues, there have been no other issues that have arisen causing a need for change. There are no urgent problems with our constitution and the cost in dollars will be too great. Our constitution is an instrument that defines our state and provides for the operation and functions of our government. The constitution should not be used to legislate on issues. No issues of constitutional importance are pending. If we have one [a ConCon], people with their own agendas will try to make changes for their own purposes. Have little confidence in members of the public getting elected and getting actively involved in the process. I have no confidence that ConCon delegates might not support terrible though popular recommendations. The last convention was a success because except for a handful of legislators, there was an agreement that the politicians who were already in office would not run for delegate to the ConCon. As a result, there was a chance for new ideas and new politically interested candidates to come forward. Indications are that this will not be the case this time. So if you have a ConCon with the present set of politicos, not much would change. Voters elect legislators to represent them, so constitutional issues and amendments should be initiated by the legislators. While it may be true that a ConCon will identify people with leadership qualities who will go on to other elective offices, that is not the purpose for convening a ConCon. It should not be deliberately used as a path to political advancement. For a successful convention, egos should be checked and everyone be committed to a real review with all delegates participating actively to reach consensus on any one issue as much as possible. People are too polarized. Too many hot button issues will probably be introduced -- issues that willpolarize the body and lead to permanent division of the delegates which would present difficulty in reaching consensus on the other issues. Too much money will be used advocating or supporting certain amendments, and disproportionate amounts of money spent by one side on any given issue would probably determine the outcome. Concon will be used to include statutory laws into our constitution, cluttering it with detail, and limiting the legislature's ability to creatively solve some of our problems. Too many people do not understand that you do not legislate through the constitution. Issues of concern to commercial organizations can best be addressed in statutes. Issues of concern to our company (writer’s company) may be properly addressed at state and city executive and legislative levels. Term limits which many people propose are not a good idea. It has kept too many good legislators from continuing to serve. People should have the right to keep people in office or to vote them out. Term limits deprive the institutions of institutional memory which might give critical insight to deliberations on policies. A ConCon could be used to overturn the basic nature of an independent judiciary. A ConCon could lead to rejections of a bicameral legislature which is designed to impede the passage of unwise legislation. There are far too many mischievous or dangerous issues which unfortunately may have considerable public appeal, and if adopted, could make our situation much worse than it is. The provisions in the constitution are broad enough to allow changes. Issues before education are mostly operational and not necessarily in need of constitutional amendment. No Child Left Behind may be leading to the neglect of gifted children. Afraid that clean elections funding and expenses associated with the administering of the program are not well thought out. The 1978 ConCon produced important protections for civil liberties. I fear the erosion or even elimination of gains made in 1978. Our rights enshrined in our constitution have come under serious threat. Constitution should enhance, not diminish fundamental rights. The climate is currently hostile to civil liberties on the local and federal levels, and we should be very concerned about attempts to diminish rights through constitutional amendments. Constitution needs to protect minority rights and ConCon could impose popular will and threaten important protections. The threats to Hawaiian rights are too great to open up the issue. Our natural resources provisions have to be constantly affirmed because of powerful interests trying to wrest control of Hawaii. The Code of Ethics might be eroded. We need to keep it intact. Since Hawaiians are not united on the issue of Hawaiian governance, having a ConCon would raise the risk that OHA could be abolished by the activities of a small group of people with nothing being put in its place. The problem is not with existing laws. The problem is that they are not being enforced. We don't want to open up a process that will allow existing laws to be weakened and eliminated. I would not want to see the militarization of law enforcement. Initiative & Referendum, which is sure to appear on the agenda, does not work. Too many are introduced by special interests, and too much money used to confuse voters. Too often, money determines the winner. Monied interests would have undue influence. Our present system is a good model of representative democracy. Changes to the constitution need to be assessed in terms of their larger ramifications and I'm afraid ConCon would not provide or assure that such broad assessments would occur. When so many amendments are placed on the ballot in any one election as a ConCon might, a balanced discussion on all proposals become impossible. The public will probably not give each proposal the attention it needs, and we will be focusing on the more controversial issues. It works better when we have only a few proposals on the ballot at any one time.
ISSUES OFF THE TABLE ??? When asked, “What issues would you not want reviewed by ConCon?”, quite a few felt that all issues should be on the table. Said one individual, “The closing of topics for consideration would be an unwarranted restriction on the prerogatives of the delegates.” Others valued certain provisions be it in land conservation, environment, civil rights, employee rights and many others , and would prefer that these be off the table. ********************************************************************************************* OTHER ISSUES THAT MIGHT ARISE AS TOPICS FOR REVIEW Renew and define our commitment to universal education The need to expand Article I (Bill of Rights), Section 5. It now protects race, religion, sex, and ancestry. Add color, age, sexual orientation, marital status, and disability. Ethics reform for legislators . More transparency in the legislative process. Conflicts of interest issues involving legislators. Changes in sentencing so victimless crimes do not fill our prisons. Provisions for universal health care, including long-term care. Government’s role in providing affordable housing. We don’t know yet the extent of fallout from current federal administration’s policies, but Hawaii’s continued strategic importance for national security requires us to maintain the strongest shield against federal power during times of crises. The Court system and the way judges are selected Internal federalism of a state with different islands -- whether and how much weighting is adequate or results in over-representation on boards and commissions.

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