Chapter 2: The Hawaiʻi State Constitution

She raised herself up from working as a janitor at the State Capitol to serving as the head of the most powerful state offices, through a constitutional amendment that benefited all Hawaiians in the state. Meet Adelaide Keanuenueokalaninuiamamao “Frenchy” DeSoto, 1978 Constitutional Convention delegate and the first Chair of the Office of Hawaiian Affairs.^[1]

Quick historical context: The Hawaiian population suffered a sharp decline in numbers and political power after the overthrow of Queen Lili’uokalani and the establishment of, first, the Republic of Hawaiʻi, and second, the Territory of Hawaiʻi.^[2] Hawaiʻi later became a state in 1959. Prior to Hawaiʻi’s acceptance as a state, it was required to adopt a prospective state constitution, which it did in 1950. That constitution, which became active when Hawaiʻi became a state in 1959, had a provision that required there to be a vote on a constitutional convention at least every 10 years.^[3]

During the territorial days and the early years of statehood, Hawaiian culture and language were suppressed, with schools trying to stamp out the use of the Hawaiian language.^[4]  But by the 1970s, the Hawaiian people and the Hawaiian culture were on the uprise, in part from the escalating number of local land-use conflicts like Kalama Valley, Kahoolawe, and Ohta Camp.^[5] Hawaiian music and Hawaiian culture were also on the rise in the 1970s.

It is with this resurgence in mind that Puwalu, Hawaiian community groups, began to enumerate a list of the rights that it wanted to see restored to the Hawaiian people.^[6] These discussions were in preparation for the potential 1978 State Constitutional Convention. A constitutional convention is a group of elected members of the public, called delegates, whose job it is to review the whole constitution, not just individual portions of it, and propose changes, which are voted on by the electorate (the voters). Changes to individual sections of the constitution can be proposed at any legislative session (and later ratified by the voters), but for a wholesale review of the constitution, a constitutional convention needs to be called.

The first Hawaiʻi Constitutional Convention was held in 1950 to adopt the first state constitution, the one that became effective when Hawaiʻi was made a state in 1959, and the second (the “1968 ConCon”) was approved by the voters in 1968. The third (the “1978 ConCon”) was authorized in the special Hawaiʻi legislative session of 1977. It provided for the election of 102 delegates, their compensation, submission of the convention’s work to the people, and other convention preparations. The delegates were chosen in a special election held May 20, 1978. Only 4 delegates had held political office before:^[7] this was truly a people’s convention. The 1978 Con Con delegates started work in July 1978 with the goal of proposing the amendments to the voters at the November 1978 regular election.

There were many subcommittees that heard proposals in specific areas, such as Education, Public Health, and the Environment.^[8] Frenchy De Soto was selected as the chair of the Hawaiian Affairs subcommittee of the convention. At the time, Hawaiian issues were not considered that important, and the Con Con chair called this a “sleeper” committee.^[9] Nevertheless, Frenchy put forward all of the ideas that had been brought to the convention relating to native Hawaiians, including from the Puwalu. Here’s a short video clip from a speech she made at the convention about her committee’s work.

Frenchy and her subcommittee shepherded numerous amendments benefiting the Hawaiian people and they were all passed by the public in the ratification vote of November 1978. Frenchy was elected to the first Board of Trustees to the new Office of Hawaiian Affairs (OHA) in 1980 and served as its first chairperson.^[10] She resigned to run for State Senate and then was elected again to OHA in 1986 where she served until 2000.^[11]

What can we glean from this story?

To “glean” is to gather, as in harvest, and we will use this term in this and the following chapters to indicate the heart of the story. First, what surprises some people when they read the story is the discovery that we have a State Constitution. It is in addition to the US Constitution. Next, even for those who know about it, the impression is that the State Constitution is set in stone and rarely changed, similar to the way that the US Constitution is rarely changed, with only 27 amendments added in 233 years. One of the things to gain from Frenchy’s story is that not only is the State Constitution has been amended much more often than its federal counterpart, but that at times we review the whole constitution and make sometimes radical changes across the whole document. The State Constitution itself provides that there should be a vote at least once every 10 years for a constitutional convention,^[12] and now you know how powerful a Con Con can be.

Another piece of information to glean from the story is the fact that regular people with a vision can be the ones making those changes. There is sometimes a misconception that legislators are superior beings gifted with a dazzling intellect. In fact, legislators come from the people and have the same range of knowledge and abilities as everyone else.  Frenchy served as the guiding voice for the native Hawaiian community who met in the Puwalu to try to organize to improve life for Hawaiians. She did it not because she was expecting to become OHA chairperson; as you can see from her video clip, she was concerned that the suggestions of her committee would be attacked. She did what she did because she thought it was the right thing to do.

The power of the Hawaiʻi Constitution

Some people have the misconception that state constitutions are a junior version of the United States Constitution; in other words, that the federal constitution came first and trumps all state constitutions. However, all of the original 13 colonies had their own constitutions years before the new United States of America adopted the US Constitution.^[13]. The US Constitution was ratified in 1788^[14] with this in mind and it was understood from the start that it was not claiming superiority over the existing state constitutions except in specific enumerated areas, such as the right to coin money, establish a national post office, and provide for the national defense.  Powers not specifically provided to the federal government remained with the states, as specified in the 10th amendment to the United States Constitution: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”^[15]

The Hawaiʻi State Constitution is the supreme law of the state. It prevails over state and county legislation. The constitution is interpreted and applied by the courts, and the Hawaiʻi Supreme Court’s interpretation of the state constitution prevails over lower court’s interpretations of it.

What is in the Hawaiʻi Constitution?

It is not possible to provide anything more but a partial glimpse of the Hawaiʻi Constitution in this book. A recent PDF of the current Constitution with its accompanying material is 62 pages, and the bare text (no cases or notes) is included in the Appendix to this book. Therefore, this will be a look at a few key provisions, a guide to what the Constitution covers, and an invitation for you to seek out additional sections of particular interest to you.

Organized under a traditional format, each major section of the Hawaiʻi Constitution is broken up into a larger group of one or more provisions called an “article.” The articles are assigned Roman numerals (I, II, III, etc. instead of the more usual Arabic numbers (1, 2, 3, etc.).  Each article contains multiple parts, called “sections.”

The Hawaiʻi Constitution starts off with 3 aspirational sections within Article I. The first establishes the rights of the people:

This is both a promise and a warning. This is a promise to the people that their government realizes that the political power ultimately resides in them. However, it also cautions that people have the responsibility for wisely exercising their political power, and for most people this starts with voting, which includes the need to educate themselves on the people and issues that they will see each election. A just government doesn’t run itself. As the local slogan goes:

The second provision of the Hawaiʻi Constitution reads,

Again, while this recognizes our individual rights, there is clearly a warning that we must recognize our corresponding obligations and responsibilities if we want to continue to enjoy all of these rights. This starts with the people of Hawaiʻi educating themselves on the people and the issues and taking the time to vote.

Then, unlike the United States Constitution, which contained no individual rights when initially enacted, the Hawaiʻi Constitution lists key individual rights for the citizen. If you are familiar with the US Constitution, you will see that a number of the section are lifted intact from the Bill of Rights, but section 3 covers a topic that is not yet included in the US Constitution, even though it was first proposed to Congress over 50 years ago. Article I, section 3 is the Equal Rights Amendment, which provides:

While this section is currently listed as having been adopted in the 1978 Con Con, Hawaiʻi was actually the first state in the nation to ratify the proposed federal equal rights amendment, passing it on March 22, 1972,^[19] and adding it to our constitution in 1972 as Article I, section 21. States have the right to provide greater protections than the federal government does, so even though the validity of the Federal Equal Rights Amendment, which would be the 28th Amendment, is still being challenged by some,^[20] Hawaiʻi has those rights firmly in place.

A number of the subsequent amendments use identical language as the US Constitution, such as the sections on freedom of speech, religion, and the press and protection against unreasonable searches and seizures. In some instances, Hawaii provides greater protection than the US Constitution, and one of these ways is by having an explicit right to privacy. Many people are unaware that our United States Constitution does not guarantee us the right to privacy. Instead, the United States Supreme Court has gathered several specific amendments that describe what it calls a “penumbra” of privacy.^[21] A penumbra is a glow that shows the existence of something that is itself not visible. It is used most often to describe a solar eclipse:

This federal “penumbra” of privacy is problematic because what the Supreme Court gives us in the interpretation, it can also take us away, and currently, as of June 2022, the US Supreme Court issued its opinion in the case of Dobbs v. Jackson Women’s Health Organization,^[22] that removes the right to have an abortion from the protection of federal constitutional privacy protection, which it gained in the famous Roe. v. Wade case. This currently leaves a woman’s right to have an abortion to her state legislature. However, having the right to privacy explicitly stated in the state constitution means that privacy rights cannot be interpreted away by the Hawaiʻi Supreme Court as they are in the Dobbs opinion. 

Article I, section 6 of the Hawaiʻi Constitution reads:

After the Article on individual rights, the rest of the constitution is divided into an additional 17 sections. Here is a brief description of each:

Article II, Suffrage And Elections: “Suffrage” does not relate to the word “suffer’; it means the right to vote. Article 2 covers who gets to vote and how elections will be carried out. This section includes who has the right to vote, how long someone has to be a state resident before they are entitled to vote here, under what circumstances you can lose and then regain your right to vote, and whether students or military members who are out of state are still entitled to vote in Hawaiʻi.

Article III, The Legislature: This section covers the state legislature, what the different terms are for the representatives and the Senators, what the process is for bills to become a law, and what the legislature’s role is in impeachment.

Article IV, Reapportionment: This article sets up the reapportionment commission whose job it is to review the population every 10 years and redraw the House, Senate, and elected officials’ boundaries so that each representative in a given body represents approximately the same number of people.

Article V, The Executive: This covers the roles of the governor and lieutenant governor, sets out the maximum number of state departments that we can have, and also specifies how each department head is selected

Article VI, Judiciary: This article establishes Hawaiʻi’’s three level court system, specifies who is qualified to be a judge, and sets up the judicial selection commission, which plays a key role in the selection of judges and in the renewal of their terms. It also empowers the Judiciary to adopt court rules.

Article VII, Taxation and Finance: The state obviously has a number of different kinds of taxes, but did you know that there is a tax review commission which is set to evaluate the state’s tax structure and recommend any changes to tax policy every 5 years? See this and more in Article VII.

Article VIII, Local Government: When Hawaiʻi first became a territory in 1900, there were no specific provisions for any governmental body smaller than the whole territory. It was unclear when the first county was being formed in Honolulu whether it would encompass the whole island, or just a portion of it, making it more like a city government. It may be for this reason that the constitution does not only use the word “county” in the Constitution but it refers to counties and “other political subdivisions.” As a practical matter, there are no political subdivisions smaller than the counties, so wherever you read “political subdivisions” in the Constitution, just know that it means counties. This provides for the creation of the counties and also puts a limit on their powers.  This is also the section that transfers the real property tax in functions to the counties, making it the only tax they can apply, unless the legislature delegates specific powers to them. In other words, the county cannot create its own sales tax or general excise tax; It could only do so if the legislature passes a law allowing them to do that. Thus they have a very limited source of income, the real property tax. Read all about this and more in Article VIII.

Article IX, Public Health & Welfare: Hawaiʻi shows its aloha in Article IX, which provides for broad protection of the public, including Public Health (section 1), care of handicapped persons (section 2), economic security of the elderly (section 4), “public sightliness and good order” (section 7), and the preservation of a healthful environment. This also designates “the law of the splintered paddle,” decreed by Kamehameha I, as the “unique and living symbol of the State’s concern for public safety.”^[24]

Article X, Education: Hawaiʻi is unique among all states in placing public education under the state government, rather than the county or city government. The section provides for a statewide system of public schools, a state university (the University of Hawaiʻi system) and public libraries.

Article XI, Conservation, Control, and Development of Resources: Article XI is another aspirational section, which starts off by saying “for the benefit of present and future generations, the state and its political subdivisions shall conserve and protect what is natural beauty and all natural resources bracket.”^[25] The state is required to conserve and protect agricultural lands, promote diversified agriculture, increase agricultural self-sufficiency, and assure the availability of agriculturally suitable lands. The Article also gives the state the power to manage and control the marine, seabed, and other resources located in the waters surrounding the state, and provides that the state has an obligation to protect, control, and regulate the use of Hawaiʻi’s water resources for the benefits of its people.

Most people are surprised to find out that the state also has a specific constitutional amendment stating that there should be no nuclear power plants in the state without prior approval by a 2/3 vote of each house of the legislature. While 11 other states also have restrictions on the construction of nuclear power facilities, Hawaiʻi is the only one to put this prohibition in its constitution.^[26]

Article XII, Hawaiian Affairs: This is the section referred to in the story at the top of this chapter, the one that Frenchy De Soto and her Hawaiian affairs committee was responsible for presenting to the electorate. However, this new article isn’t the only article which contained new material relating to the Hawaiian people. Review the interactive below to find out more information about the many areas in which Hawaiian rights were improved in the 1978 constitutional convention, and which still apply today.

Article XIII, Organization; collective bargaining. This article has only two sections, but it affirms the right of persons in private employment or in public employment to organize for the purpose of collective bargaining. This allows the formation of unions in the state, and in fact, Hawaiʻi is the most highly unionized state in the nation.^[27]

Article XIV, Code of Ethics: The section article has only one section, but it is a detailed one. It starts with the aspirational statement that

The rest of the article establishes a separate ethics commission and specifies what the code of ethics will cover.

Article XV, State Boundaries; Capital; Flag; Language And Motto: The title of Article 16 describes its contents. Perhaps the most interesting is the addition of the state’s motto to the constitution: “Ua mau ke ea o ka aina i ka pono,” a Hawaiian phrase translated as “the life of the land is perpetuated in righteousness.”^[28]  It is interesting to note that adding the motto to the Constitution was considered in the 1968 Con Con, but was declined to be added as the committee in charge of this area determined that “here was no compelling or persuasive reason to add such symbols.”^[29] Yet ten years later, with the rest of the Hawaiian Renaissance sweeping so many other Hawaiian reforms into the constitution, specifying a Hawaiian motto in the Constitution was considered essential.

Article XVI, General And Miscellaneous Provisions: This is a collection of random amendments that don’t really fit in anywhere else. My favorite is the following one which is written in a way that contradicts its meaning:

Article XVII, Revision And Amendment: Article 17 covers amending the constitution, which will be covered in more detail below.

There is also an Article 18, but it is not relevant today: it was the schedule of changes to be made as a result of the 1978 Con Con, such as redistricting, the 1978 senatorial elections, and certain transition provisions.

Accessing the Hawaiʻi Constitution

See the Appendix for a static copy of the Hawaiʻi Constitution as of July 1, 2022.

How to amend the Hawaiian Constitution

Amendments to the Hawaiʻi Constitution may be proposed by constitutional convention or by the legislature.^[30]We saw an example of the constitutional convention (Con Con) process in the story at the start of this chapter. It is more common to amend the constitution one section at a time through the legislature, and this next section describes that process.

The Hawaiʻi Constitution amendment process is similar but not identical to the federal constitution amendment process. Because an amendment needs to be agreed upon by all of the people, there’s a two-step process that starts with:

Step 1: Determination of the text: The legislature drafts the proposed amendment, and it goes through the normal bill passage process that you will cover in a later chapter.

• Either chamber gives the governor at least ten days’ written notice of the final form of the proposed amendment before the final vote.
• Each chamber EITHER  passes the amendment by a 2/3 majority vote if the proposed amendment is to be done in one session, OR, interestingly, by a simple majority if the same proposed amendment is passed in two consecutive sessions.^[31]
• The governor explicitly does not have the authority to veto the bill. Aside from the required notice to the governor, the proposed constitutional amendment bypasses the governor and goes to the people. ^[32]

Step 2: Ratification. The legislature is charged with informing the public of the content for the public’s ratification vote.

The State must do at least this much to notify the public of the proposed change:

• “[The proposed amendment must be] published once in each of four successive weeks in at least one newspaper of general circulation in each senatorial district wherein such a newspaper is published, within the two months’ period immediately preceding the next general election.”^[33]( If the legislature fails to provide this public notice, the amendment will not be placed on the ballot, or, if placed on the ballot and voted on, cannot be validly ratified by the public, as happened in the 2002 election.^[34]
• The proposed amendment is then placed on the same general election ballot as that for the election of legislators, at the next regularly scheduled election, which in Hawaiʻi is every two years (every even-numbered years), unless a special election is called.^[35]
• The proposed amendment must be passed by a majority of people who vote in the election: “The revision or amendments shall be effective only if approved at a general election by a majority of all the votes tallied upon the question, this majority constituting at least fifty per cent of the total vote cast at the election, or at a special election by a majority of all the votes tallied upon the question, this majority constituting at least thirty per cent of the total number of registered voters.”^[36]

While the federal Constitution requires this ratification to be done by 3/4 of the states, in contrast, the state only requires ratification by a majority of the voters. However, even this simple concept has its hidden issues. Under the language in the constitution, there has to be a majority of people who are voting at the election, not just the number of people who are voting on that specific amendment. This is important to know because often people simply skip voting on a constitutional amendment if they were not aware of it before the election.

The average voter who is not familiar with a proposed amendment probably assumes that their failure to vote on it will not be counted as a yes or no vote, just as skipping a vote on an elected official will not impact the election. See screenshot on the right.

However, due to language in the constitution, the Attorney General has determined that a constitutional amendment will only be ratified if it receives a majority vote of all of the voters at that election, including voters who simply skipped that question.^[37] So as shown a screenshot to the left, this 2012 constitutional amendment on retired judges looks as though it passed because 49.6% of the public voted in favor and 39% voted against.^[38] However, when the Office of Elections added the blank votes (no vote cast) and the “over votes” (someone chose more than one answer on this issue so that vote  was discarded for that voter), you will see that it failed by 3215 votes. It also failed to reach the required 50% of the voters in the election.

For this reason, it is imperative for all Hawaiʻi voters to educate themselves on proposed constitutional amendments, and also county charter amendments, before they cast a vote, so that they will have an informed yes or a no vote to cast on every question on the ballot.