Take the time now to understand the ‘Con Con’ question
We are routinely taught to defend our fundamental political rights, such as various free speech and voting rights.
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We are routinely taught to defend our fundamental political rights, such as various free speech and voting rights. To be sure, defending these rights is vital. But we are not taught to defend the one right that undergirds them all and is thus the most fundamental and precious — our right to meaningfully reform our constitution.
This right of reform, aka our “unalienable” right to alter our form of government, is featured in the U.S. Declaration of Independence and in the bill of rights of 37 American states. But it is ignored in popular discourse, especially the deeper question of what role the sovereign (“the people”) should play in constitutional reform if our form of government is to survive and thrive.
Fortunately, the Framers of Hawaii’s Constitution recognized the importance of a meaningful right of reform, which must include a mechanism to bypass the state Legislature’s gatekeeping power over constitutional reform. The specific bypass mechanism they bequeathed to us was the periodic (once-a-decade) referendum to call a Constitutional Convention.
On Nov. 6, this constitutionally mandated question is next on the ballot. Hawaii has convened state constitutional conventions in 1950, 1968 and 1978.
Since America’s founding in 1776, the basic idea behind the state Constitutional Convention — of which America has had 236 — is that the Legislature shouldn’t have exclusive power over constitutional amendment because it would have an institutional conflict of interest in exercising such power: specifically, in proposing reforms related to legislators’ incumbency advantages, the power of competing government branches, and the rights retained by the people. The convention was viewed, in short, as an essential feature of America’s checks and balances system of government.
Some scholars have even described America’s invention of the state Constitutional Convention — which was part and parcel of its invention of the modern written Constitution — as its greatest contribution to the development of democracy.
Unfortunately, however, the average citizen no longer understands the Constitutional Convention’s essential role in our system of government. This misunderstanding can partly be attributed to recent Hawaii convention referenda. In the weeks leading up to them, convention opponents have spent millions of dollars asserting that Legislature-initiated constitutional reform is not only a perfect substitute for calling a convention but one that is less costly and risky. In short, rather than presenting the constitutional convention as a vehicle to preserve and enhance Hawaiian democracy, it has been demonized as its greatest threat.
How the Legislature and the various groups that thrive influencing it have been successful in demonizing the Framers’ vision for constitutional reform is a remarkable story. On the one hand, we live at a time of exceptionally low trust in Hawaii’s Legislature, including the Legislature’s willingness to democratically reform itself.
On the other hand, convention opponents — when behind in the polls — have spent bottomless sums attacking the institution the Framers gave the people to address such problems. One result: Convention proponents now believe their cause is hopeless, so don’t even try.
The strategy of attacking the Framers’ vision has worked partly because Hawaii voters have become so cynical of current politics that they don’t believe the democratic process can be improved. Such defeatism is dangerous because it is self-fulfilling. To counter it, we must be reminded of our most fundamental and precious of all political rights as a sovereign people: our right to meaningfully reform our government.
What urgently requires attention (e.g., current candidate elections and minor referenda) is rarely fundamental. But what is fundamental (e.g., fixing our broken government) is rarely urgent. Thoughtful debate on the Nov. 6 referendum should begin now; waiting until the fall is too late.
J.H. Snider is the editor of The Hawai‘i State Constitutional Convention Clearinghouse.