Why shouldn't we hold a ConCon?

[Peter Kay]

Some say holding a ConCon might make things worse than they are. Others say it will cost too much (which I personally believe is a red herring to avoid a ConCon altogether).

I'd like to see some sensible reasons as to why we should not have a ConCon.

[Ben]

Hi Peter,

You pose the question of why we should not have a Con Con (other than cost). To address this, it's important to ask what a constitutes a constitution. I think most provisions in a constitution are divided into two distinct groups: provisions articulating the structure of a state government and provisions articulating the rights of people living under the constitution. What makes our constitution different from other states and certainly different from the federal constitution has a lot to do with the latter group--our rights. We enjoy expansive and distinct rights under our state constitution, many of which have been targeted by law enforcement and other groups for amendment over the years. Some examples include the right to live in a clean environment, Art. XI, sec. 9, the right to privacy, Art. I, sec. 6, and the right to collective bargaining, Art. XIII.

These rights afford more protections for the people of Hawai'i from the power of the government. The wider protection for Hawai'i's people appears to be a counterweight to the many powers expressly provided by the State in the same constitution. Many civil liberties groups fear that a Con Con would nix these rights. Where does this fear come from? Most civil liberties are implicated in criminal prosecutions. Like the federal constitution, our constitution spells out many rights for the accused and clearly limits the power of the executive in investigating and prosecuting crime. Over the years, constitutional amendments have been advocated by the Attorney General and the Prosecuting Attorney for the City and County of Honolulu. They have amended the constitution to essentially reverse Hawai'i Supreme Court opinions that have ruled against them and preserve the civil liberties expressly provided in the constitution. On a similar note, the federal constitution has been interpreted over the past thirty years by a majority of justices who view that they are not in the position to formulate policy and that they must set the bare minimum in the realm of civil liberties. In response to this position, states have been encouraged (even by the US Supreme Court at times) to step into the void and provide these protections when the federal government drags its heels. Hawai'i is a shining example of what has been dubbed New Federalism. At a Con Con, we run the risk of curtailing this independence and aping the federal constitution to ensure federal interpretations of civil rights--the bare minimum. This issue should appeal not only to "liberals" but to "libertarians" too.

That, Peter, is one reason why we should not have a Con Con.

[Peter Kay]

Thank you Ben for your thoughtful and dense reply. It's much appreciated.

If I understand your position, it's that certain civil rights guaranteed by the constitution might be lost.

But doesn't this imply that groups advocating expanded civil rights would not be present? Why, for example, would it not be possible for civil rights to be expanded?

I've spoken to other groups, e.g. Hawaiian, who fear they may lose constitutional protection. But my response is the same them as it is to you:

Why is it that the assumption is that things will be lost? Why cannot those interests be even further expanded?

For example, your reference to a Art XI sec 9. Is it fair to say that perhaps this needs to be a little stronger in light of the fact we still get sewage spills in Kailua (is not my right to a clean environment being violated?) yet no one is held accountable?

I looked @ your referenceed Art. I and Art. XIII and would be interested in hearing specific concerns you believe might threaten them.

Also I looked up "New Federalism" (gosh you gotta love Wikipedia!) and don't understand why a ConCon could not strengthen our powers over the Federal govt.

Please help educate me!

[Ben]

Hi Peter,

I agree that a Con Con could expand our rights as people of Hawai'i. It could result in more duties on the part of the State. It could define our rights independently from the federal constitution and further the cause of New Federalism. But that's all in theory.

The fears that people have, I think, is that while a Con Con could theoretically do these things as it did in the 1960s and 1970s, the political landscape has changed. Please remember that when Jack Mizuha chaired the Bill of Rights Committee for the 1968 Con Con, the country (and Hawai'i) was a much different place. It was before a generation of conservatives took control of the federal government, before the War on Drugs (which lead to US Supreme Court decisons that have gradually eroded the meaning of much of the Bill of Rights), and before the United States Supreme Court held a majority of justices rolled back the philosophy and holdings of the Warren Court.

Yes, a Con Con could strengthen and encourage New Federalism, but many believe that this is not likely. Perhaps the most convincing evidence that a Con Con would not play out to the benefit of civil libertarians would be the record of constiutional amendments since the 1978 Con Con. Again, law enforcement politicizes interpretations by the Hawai'i Supreme Court to ensure a constitutional amendment that curtails rather than expands the rights of the accused. The amendments have all been curtailments rather than expansions. For example, the constitution was amended so that prosecutors could charge the people of Hawai'i with a crime without having to resort to a grand jury. The right to a grand jury indictment in felony cases has been lost by amendment. Then there is the entire provision in Article I pertaining to the registration of sex offenders. The amendment is necessary because it obviously conflicts with the express right to privacy. These battles have shown that people, when engaging in the debate with law enforcement, are less receptive to the significance of civil rights. A Con Con would allow wholesale curtailment of civil rights. Sure, there may be delegates who would take a contrary position, but if history is an indicator, those in favor of stronger prosecutorial powers and less rights for the accused, have the upper hand.

Moving away from criminal prosecutions and convictions, there are other rights and duties that could be seen as unfashionable and out of step with this new political landscape. This would include the right to collective bargaining. Unions fear that if their hard-earned right to collective barganing would be stricken or amended considerably. It's not entirely irrational. Many view unions as a burden to employers. They feel that they've become obsolete, corrupt, and unnecessary.

Sure, all of these rights could (and ought to) be expanded. The worker's right to organize could be supplemented with the right for unions to communicate freely with its workers at the workplace. There may even be a place in our Hawai'i constitution for an express "right to know." The progressive position, however, is unpopular thanks to the long-term effects of conservative dominance in the 1980s and today. Hawai'i has, in large part, been a haven for progressive ideas and positions and we have the Hawai'i Constitution to thank for it. After almost five decades since Statehood, however, I think we're starting to "federalize" our laws and become less independent in searching for political identity as the people of Hawai'i. This diminishes somewhat our support for native Hawaiians, labor unions, and civil liberties--all of which have been part of the political development of Hawai'i.

And then there are provisions in our constitution that have yet to be utilized! Look no further than Art. XI, sec. 9. We do have a right to a clean environment. This breathes a new life (no pun intended) in the State's crackdown on smoking in public areas. Suddenly the county bans have a possible constitutional demension. Yet, this right is seldom invoked, let alone mentioned. It's up to the advocates, their lawyers, and the government to use these constitutional rights. Why reexamine it when we haven't even used our rights to their full potential?

Many in support of a Con Con, so far, have not been a friend to civil rights and progressive politics. That said, I think people who care about their civil rights and their liberty are hestitant to take a position on whether to have a Con Con or not. If it's a go, however, I predict a strong push from these people to get in there and defend what they've achieved in Hawai'i and advocate for more.

[Peter Kay]

Thank you AGAIN for articulating such a clear position.

So if I understand you correctly: Progressives are concerned that the current shift towards a more Conservative tendency might lead to rollback or loss of previously hard fought battles.

Is that a reasonably accurate summary?

[Ben]

We should be careful not to reduce the constitutional concerns to a matter of right-wing v. left-wing. I think it's more significant than that. For example, the issue of whether to create an initiative and referendum in the State of Hawai'i may not necessarily cut on ideological lines. One need not look further than the Save Sandy Beach fiasco about twenty years ago in which environmentalists attempted to amend the land use laws through voter initiative only to have the Hawai'i Supreme Court invalidate it. I'm not sure how the court did it and whether the constitution was invoked. In any event, there you had "liberal" activists pushing for voter initiative. A more recent push for voter initative came with school vouchers on Kauai, which is considered "right-wing" or "conservative." The issue, in determining whether voter initiative should be part of the constitution, is whether voter initiative is a shared value. It's not even whether a majority of the people want it, which I'll get to later. Let it suffice for now that political labels are kind of crude for a complicated discussion about our constitution.

A constitution is neither progressive nor conservative, and it should not be characterized in those terms. A constitution sets out the structure of our state government by articulating its powers and duties. At the same time it limits the abilities of our government by articulating our rights as the people of Hawai'i (e.g. the bill of rights). Our constitution today expresses a great deal of powers and duties that are not found in other constitutions (e.g. expressly stating the number of state agencies, the duty to reaffirm and protect native Hawaiian customary and traditional rights). Its counterweight is an equally broad expression of our rights as a limitation of the state's power. It is a great disservice to think that a great articulation of the rights of the people is a progressive tactic while reserving rights or curtailing rights is a conservative move.

A Con Con, if we're going to have one, should not be about political stances, but about our shared interests and values. How are the principles of we, the people of Hawai'i, articulated? What freedoms and duties do we expect in Hawai'i that are not necessarily shared by other states or the federal government? The answers should lie in our constitution. That's why we have a unique constitution. It's the product of our history. So to say that it's about progressives fearing a rolling back of hard-fought battles from the past is not quite right. It's more of a question of whether we still hold these principles in the face of opposition in national politics and in changing times. I think we still value privacy, the right to organize, a recognition of native Hawaiians, our environment, and other principles reflected in our constitution.

Another principle is at work and, ironically, it's a conservative one (in Edmund Burke's sense). There are those who feel that a Con Con may not be prudent. Not because of any particular issue or because certain people are in favor of having one or because the idealogical winds have shifted. Underlying the reluctance to have a Con Con is this idea that a constitution is, well, important, and it should not be tampered with too often and too rapidly. Amendments are one thing, wide-scale change would be most distressing to people like Burke who view a healthy government as a long-standing build up of tradition.

You're right if you think that this is a bit, well, undemocratic. It is. However, it's not necessarily wrong. After all, the preamble of our constitution states that the power to make a constitution is derived from the people of Hawai'i. This does not mean a majority of the people of Hawai'i, but the entire whole. This includes minority views as well as the dominant ones. To review a constitution merely because a majority of people at this time wish to is not exactly the will of the whole (even if the constitution itself provides a renewal clause that allows us to reexamine whether to have another Con Con every ten years). This defeats the purpose of a constitution in the first place. Principles are made to last. They're not made to be thrown out with every new generation. This "classical conservatism" came as an English response to the French Revolution in which everything, including the way the French measured time itself, was reexamined and refitted for the new government. While a Con Con is not nearly as dramatic as the French Revolution, it still proposes a new form of government. Of course there's a natural reservation to plunge into this new world.

That said, here's how I summarize what's going with regard to Con Con:

The people that have been in favor of it at this stage are those that want to see a wide-spread change in Hawai'i. Many who seek tax reform, smaller government, a way to stick it to the "old boy" network, and a way to parallel the federal government are all in favor (Though I can't help but point out that in spite of the federal constitution being shorter, more vague, and older than our current state constitution, it still manages to serve as the foundation for our sprawling federal bureaucracy!). If voters approve of a Con Con, however, I think you'll see those who want to ensure that the principles articulated in the constitutions past--principles that have traditionally defined the soverign State of Hawai'i--will continue in the new government and join in the discussion.

[Peter Kay]

I like your style. You raise a few interesting points and they chime in with what others say that the Constitution is a "Framework" document and should not be subject to significant swings or changes.

And from my limited knowledge of government structure, I would agree.

But as you also point out, our Hawaii Constitution spells out a lot of details and it longer than our federal one.

And I will also point out that the ConCon question is on the Hawaii Constitution. If there are legitimate concerns about the dangers of ConCons, then why did the "founding fathers" put that on the Constitution?

I've been told by an "old hand" that the ConCon clause was put in there as a compromise to avoid things like referendum and recall. I don't know if its true but it makes sense to me.

Perhaps it's time to have a final ConCon, add some important language, like referendum and recall, and perhaps take out a lot of micromanaging details, like spelling out whether or not we can have a nuclear power plant, and then close the door permanently by striking the concon clause itself.

If I look at this situation from a structural engineer's point of view, I would say right now the constitution is flawed in that it has clauses that go far beyond a "framework" charge, including the ConCon clause itself.

Perhaps it's time to correct that. Once and for all.

[Ben]

Hi Peter,

If proponents of a Con Con have a list of corrections for the current constitution, then wouldn't amendments be better suited? I agree that not every provision in the Hawai'i Constitution is a good one. In fact, there are some provisions that I don't think are necessary to have in a constitution (e.g. the state moto and flag). I'd even offer that our preamble is in need of revision.

Then of course is the renewal provision. Its very existence arguably detracts from the importance of every other provision in the constitution. It suggests that the constitution can be revamped and redrafted every ten years no matter what anything in it says.

But these arguments do not go toward a Con Con. They go toward an amendment to constitution.

A Con Con creates an entirely new constitution. In doing so, it automatically dissolves the old one. And while many provisions are carried over to ensure a seamless transition, the constituting of a new government cannot be avoided. That's a big deal! To provide that a new government can be established as often as every ten years suggests instability. A constitution that articulates our rights, imposes limitations on government, and sets up a framework to government should be made to last.

A Con Con is something more than a new set of amendments. Con Con proponents have not really explained their need for a new government. Yes, I think everyone--whether they want a Con Con or not--can agree that there are specific provisions in serious need of amendment. But what fundamental disfunction in our current government requires us to tear it down and start all over again?

The Con Con of 1958 came as a demonstration to the rest of the country that we were ready for statehood. The 1968 Con Con came about for a very specific purpose--to fix provisions that were in violation with the US Supreme Court's holding that representative government must be based on one person one vote (the '58 Constitution had a tiered system in electing officials). The 1978 Con Con was the first real rexamination of values and reconstituting a new Hawai'i. It happened twenty years after statehood, and among a vibrant cultural renaissance mingling with an incipient environmental movement.

If the movement for a Con Con now is just a bunch of corrections, why can't there be a storm of amendments? Isn't that what an amendment is for? An amendment does not dissolve the old constitution and set out to create a new one. There is no immediate need to fix a conflicting provision with the federal constitution as there was in 1968 (it was even debatable whether to have a Con Con instead of an amendment). Finally, there certainly is no proof of legitimacy for citizenship as there was in 1958.

Perhaps our time can be compared with 1978 because the people of Hawai'i are imbued with a new sense of identity. That may be so, but the evidence is not as abundant as it was in the '70s. So what are the compelling reasons to dissolve our current state government and start anew? I cannot help but wonder what, if any, movement would carry the Con Con of 2008.

Please note that I'm not in favor of nor against a Con Con. That said, I have not found the arguments for or against a Con Con persuasive.

[Peter Kay]

Excellent writeup, as usual. Not sure if you read my blog post about the ConCon 101 event that Della facilitated but I really wish you were there.

The president of the '78 ConCon was present, and he voiced a resounding "Yes!" to holding a new ConCon.

The essence of your question is good: why not just have a collection of Constitutional Amendments? No need ConCon, right?

Based on what I learned that evening, my response would basically be this:

I think that most people would agree that our current government is broken (i.e. unable to provide various key services to its customers) in several key areas. These deficiencies have been known for many, many years, some of them since statehood.

Yet here we are with the problems still present.

A ConCon is powerful because yes, it is a "remodeling" of our government, but to me, most importantly, a ConCon's delegates can be those outside the current political system (like the '78 one) and therein lies the seed of the solution.

If anything has been demonstrated by 50 years of single party rule, it's that a political system is essentially unable to fix itself. Self-reform is an oxymoron.

Or to be put in a "Computer Minute”, if you believe that our government requires significant changes AND has been unable to bring about those changes, then a ConCon is the best way to create an external force that will bring those changes about.

And the external vehicle to apply those changes is a ConCon.

I'd love to hear what you think about that.

[Ben]

Hi Peter,

You say that many believe "the government is broken" because it is "unable to provide various key services to its customers." This position assumes that a government is like any other business entity of which the primary goal is serving a customer in return for its payment (taxes). I question if that is what people expect from their government.

While people do want functioning governmental services, they also expect their goverment to protect their interests and allow them to thrive in Hawai'i. And that's more than a service. Moreover it's more than being a customers. Some in our state cannot afford to pay as much as others. Does this mean they whould be excluded from "services" like the way a business entity would? I don't think people would like to see their government abandon the poor simply because they cannot afford governmental "services."

Unlike business entitites, the government has duties and powers that go beyond any business entity. For example, our state has the power to put a person in jail for the rest of his or her life. It also has the power to regulate businesses to protect people from inherently unfair businesses. Especially in Hawai'i, where we've seen (before the fifty years of statehood) interlocking corporations run the islands as a monopoly. These powers are linked to particular duties recognized in the state constitution. The failure to exercise these powers to fulfill a duty is, more or less, a constitutional challenge.

A Con Con does more than streamline and recompose the structure of our government. It determines which duties are important to us so that the government may exercise its powers in fulfilling them. A Con Con, as many libertarians hope, would also be a good place to limit the powers of the government without imposing duties. This would be a great disservice to people who depen on the government to avoid a strict laissez-faire society that did not work for the middle class and working classes in the 19th century and early 20th (it also lead to world-wide economic depression).

The Con Con in 1978 expressly put forth the State's duties. It also put some limitations on governmental power (the judicial selection committee, term limitations, etc.). This is the balance between rights of individuals (a limitation on the government) and duties of the government (allowing it to exercise power). This discussion on government goes well beyond the providing of services in exchange for taxes. If a Con Con reduces our State government to that bare transaction, then I don't think it would meet people's fundamental expectations of government.

You also mentioned 50 years of Democratic dominance, and that a Con Con would bring in people from the outside. At first I thought you meant people who are normally among the political regulars. In the Con Cons past most were not legislators, and there were many lawyers, activists, and even the chief of police.

I agree that a Con Con would attract a wider cross-section of the community than a normal legislature. However, you also mentioned the need to bring in outsiders was because the Democratic Party has dominated normal politics for five decades. I hope you don't suggest that a Con Con as a way to allow political outsiders--that is, those who wish to be political insiders--to do an endrun on those who happen to be in power. If so, then the only thing that would ultimately suffer would be our constitution.

[Peter Kay]

Aloha Ben,

I love your thoughtful replies; truly a model for the rest of us. Mahalo Nui for that!

I’m going to ask for your forgiveness on my sub-optimal choice of words regarding “Government is broken”. My use of the phrase “services to its customers” was a weak attempt to summarize the general term of “overall performance”.

The key point is that most Hawaii residents would agree that Hawaii’s Government is “broken”. Now I agree that the term “broken” is nebulous but on a general basis I strongly believe if you asked the “man in the street” if they felt our government was broken, they would agree.

My reference to 5 decades of single party rule is to underscore/support the idea that any system is essentially unable to fix significant internal problems. My point is that serious fixes to systems must be performed by entities outside the system.

And that’s where ConCon comes in: it is an external structure that has the potential to apply important changes to an existing system in need of serious adjustment.

Now if you think this is an “endrun on those in power” which would suffer our constitution or if you think Hawaii’s government is not broken, or if a ConCon can’t apply important changes, I’d love to hear why you think so. I’m learning a lot here!

But for me personally, I’m attracted to the idea of a ConCon as a process that is potentially well- suited to making important changes to a system that has so far demonstrated that it cannot apply changes to itself.