This piece originally ran in Honolulu Civil Beat on Tuesday, October 30, 2018 under the title "Protect State Constitution By Voting 'No' On ConCon":
A number of people have asked me why the American Civil Liberties Union of Hawaii is opposed to holding a state constitutional convention. As one of Hawaii’s leading civil rights advocates, some are curious as to why the ACLU is urging people to vote “no.”
Around the country, we see government and special interests participating in the dismantling of labor rights, invasions of privacy, rolling back hard-won protections for sexual minorities, and the advancement of private ownership of once-public spaces, just to name a few. Those same systems of power would like nothing more than a crack at our state constitution.
Hawaii’s constitution provides more civil rights protections than the U.S. Constitution and a ConCon opens the entire document up for revision. The ACLU exists to defend and preserve the individual rights and liberties guaranteed to every person in our state and our country. For the ACLU, the risk of losing some of those rights by holding a ConCon at this time outweighs the possibility of enhancing them through one.
Here’s one timely example of how we have more to lose than to gain by holding a ConCon now.
Roe V. Wade
The Hawaii constitution explicitly includes a right to privacy in its text.
There are many reasons it’s critical for us as a state to protect that right, but here’s one in particular. We all watched the hearings to confirm now-Justice Brett Kavanaugh to the United States Supreme Court. One of the central parts of the debate over Kavanaugh’s confirmation was whether he would provide the fifth vote on the court to overturn Roe v. Wade — the case that established, nationwide, a woman’s right to choose how to control her own body, including the right to abortion.
What some people may not realize about Roe is that the basis for the Supreme Court’s decision in that case was really the right to privacy. And that right to privacy is not specifically drafted in the United States Constitution. Rather, with cases like Roe and — before it — Griswold v. Connecticut (which invalidated a Connecticut ban on birth control on the grounds that it violated the right to marital privacy) — the U.S. Constitution has been interpreted to include a right to privacy.
But the right to privacy is explicitly written into the text of the Hawaii constitution. So even if Justice Kavanaugh provides the fifth vote to eviscerate the right to privacy that has been interpreted to be part of the U.S. Constitution and thereby eliminates a woman’s right to bodily autonomy at the federal level, that right will still be protected in Hawaii because it’s specifically listed in our framing document.
Other Rights
The right to privacy isn’t the only thing at stake. While the U.S. Constitution can and does set one floor for our civil rights — below which no state may go — individual state constitutions can set a different, higher floor. The Hawaii constitution does just that.
Beyond the right to privacy, there are a number of ways people’s individual rights and liberties are explicitly protected in the Hawaii constitution that are not as explicit in the U.S. Constitution. Just a few examples include equality of rights regardless of sex (the equivalent of the Equal Rights Amendment, which still has not been ratified as part of the U.S. Constitution), workers’ rights to organize, the right not to be imprisoned because of debt, the right to keep your partisan affiliation private, protections against segregation in the military, and more.
People on both sides of this issue are sincere and passionate about Hawaii’s future. In a recent Civil Beat editorial, issues like legislative term limits, ballot initiatives, school funding, mail-in voting, and government transparency were listed as reasons to support a ConCon. These issues are complex, and deserve to be debated, but they are already part of ongoing conversations between the public and our lawmakers.
For instance, mail-in voting is actually being tested on Kauai, with an eye to expanding it statewide, and voting access is further strengthened by same-day voter registration, newly available for 2018. So, convening a ConCon is not the only way — or necessarily even the best way — to debate these issues.
Just as important, a ConCon cannot be limited to these issues. Once you open it up, it is wide open. By some counts, the last ConCon saw over 1,000 individual changes to the Hawaii Constitution.
If the people of Hawaii want to change the constitution, there is a way to do so without open-heart surgery on the document. Since 1978 there have been more than 70 amendments proposed to our constitution, over half of which voters have actually passed.
Additionally, many of the changes people suggest don’t need to be changes to the constitution itself. We can change our laws both at the state and county level through advocacy and working with our lawmakers. People need to be aware of and active in our legislative process to make those changes, arguably even more involved than they would be in convening a ConCon.
Some say we need a ConCon because legislators are self-interested, won’t listen to us, and will ignore calls for constitutional amendments or legal changes. But remember that the legislators would have considerable control over the ConCon itself. According to the Office of Elections, the Legislature will decide the number of delegates to the convention, the areas from which they will be elected, and the manner in which the convention will convene. There is also nothing preventing the legislators themselves from running to be delegates to the convention. A ConCon is not the end-run around the legislators some people may envision.
If you want to change government the answer is the hard work of daily involvement in civic discourse: submitting testimony, showing up at the Legislature and the County Council, running for office or working on campaigns, and above all, voting. We have one of the lowest voter turnout rates in the country. A ConCon is not going to fix that. Consistent, active, civic engagement in the normal legislative process is what we need.
Hawaii’s constitution is one of the most progressive in the nation. It needs our care and protection, especially in these turbulent and uncertain times. Once a ConCon is convened, there’s really no limit to the types of changes that can be made. We have a lot to lose by cracking it wide open — and in voting “no” this year, we are standing up to defend it and protect the civil rights and liberties it affords us all.
