Honolulu Weekly

The constitutional convention question won’t appear on your ballot next week, but it’s none too soon to come to terms with the one decision we’ll make this fall that may prove even bigger than rail–Hawai’i voters will decide whether to call for a con-con this year for the first time since 1978.

It’s a choice we’d be unwise to make lightly. That 1978 convention looms as a seminal process in the creation of modern Hawai’i. A generation of local politicians and other leaders got its start at the last con-con, in which former Gov. John D. Waihe’e and former Honolulu mayor Jeremy Harris both served as delegates. Moreover, the 1978 process instituted fundamental changes in governance. The Office of Hawaiian Affairs was born, term limits instituted for the Governor and Lt. Governor and the state’s Intermediate Court of Appeals created. Ka ‘lelo Hawai’i was restored as an official state language, and Hawaiian-language immersion programs got their start. Lesser known achievements include the creation of the Commission on Water Resource Management, Hawai’i’s resign-to-run rule and the Judicial Selection Commission, which was designed to remove back-room deal-making from that process.

The constitutional convention also made appearances in 1950 and 1968, but despite its rich legacy, it’s still a somewhat murky presence in local politics. David Callies, professor at the University of Hawai’i’s Richardson School of Law, understands the confusion and explains that the question is somewhat misunderstood by voters. “People sometimes say, ‘if it isn’t broken, don’t fix it.’ That doesn’t quite get at the issue here. It’s not that the constitution is broken,” Callies says. “It’s the idea that, in some areas, our political process might be.”

Callies explains that state constitutions like Hawai’i’s are very different documents than the United States Constitution with which many are more familiar. “The federal government can only do what the Constitution says it can do. The state governments can generally do anything not prohibited by their constitutions.” And yet state government can seem to bog down in a chaos of competing voices and interests. Callies says that’s where constitutional reform can be a powerful tool. “It’s not just a matter of the constitution being broken,” Callies says. In a state where at least the perception of special interest control over the legislative process is strong, “Are there things people and groups want addressed that the political system can’t or won’t address?”

Callies and Jon Van Dyke, a professor of constitutional law at the Richardson School of Law, suspect that this year, there may be. Various groups and leaders have mentioned ballot initiative at the state level, increased home-rule for Hawai’i’s four counties, community development agreements and water regulations as ripe for improvement.

So who stands where? James “Duke” Aiona called for the con-con question to be put to voters this year, as is the Lieutenant Governor’s right every 10 years under state law. Others in Gov. Linda Lingle’s administration, including Attorney General Mark Bennett, have echoed Aiona’s position.

Democratic state Senator Gary Hooser has been a vocal opponent of the con-con and has expressed concern that forces supporting greater home rule might use the convention to weaken the Department of Education and erode Native Hawaiian rights. The Democratic Party of Hawai’i has not yet taken a positon on the question but is scheduled to address it on Sept 13. O’ahu County Democrats approved a position opposing a constitutional convention at their Aug. 23 meeting. The OHA Board of Trustees will address the issue on Sept 24. The question goes before voters in the Nov. 4 general election.

If voters do approve a constitutional convention, the decision will set in motion events that will lead to a convention, likely to meet sometime between 2010 and 2012.

Van Dyke, for his part, believes the time has come to stir the pot once again. “It’s been 30 years,” since the last time Hawai’i addressed its constitution, he says. “The world has changed, and Hawai’i has changed. It’s healthy to have a look at the fundamental issues.” Callies says voters should bear in mind that once a convention is approved, everything will be on the table, but thinks it may be worth doing. Aiona’s plan has been estimated to cost $15 million, a number some observers have balked at. “My reaction,” Callies says, “is, ’so?’ That’s not a very big number given the number of people I see who are disgusted with the legislative process. A convention will allow us to address some of those issues.”