Hawaiʻi ʻ78:  Where We Went and Where We Go From Here

By Melody Kapilialoha MacKenzie, Professor of Law and Founding Director

Over the last few months, Ka Huli Ao has partnered with other units at the University of Hawaiʻi, led by Hawaiʻinuiākea School of Hawaiian Knowledge, to put together a four-part discussion series exploring the genesis of and changes instituted by the 1978 Constitutional Convention (ConCon). Ultimately, the question to consider is whether Hawaiʻi should have another constitutional convention to review and propose amendments to the State Constitution. That question will be on the ballot in the November 2018 election.

Although the speakers have changed throughout the discussion series, the one constant has been former Governor John D. Waiheʻe III, a 1976 graduate of the William S. Richardson School of Law. Governor Waiheʻe is widely acknowledged as one of the most influential delegates at the 1978 ConCon. In these discussions, he has helped to provide the background and context for the events leading up to the ConCon and how Native Hawaiian issues became such an integral part of our current Constitution. As he explains it, he was part of a small hui of delegates not aligned with any particular party or group at ConCon. Without the hui’s support, however, no majority could be achieved at the ConCon. Governor Waiheʻe credits Aunty Frenchy De Soto, a strong community activist from the Waiʻanae coast, for being the glue that held the small hui together and who was visionary in her advocacy for the Hawaiian community. As a result of the efforts of Aunty Frenchy and Governor Waiheʻe, this small hui became a major force in the 1978 ConCon.

The first panel in the discussion series, hosted by Ka Huli Ao at the Law School in February, focused on ʻĀina and the amendments in the 1978 Constitution relating to ʻāina. The speakers evaluated the successes and the failures resulting from the amendments. Among those amendments was the recognition that the Government and Crown lands of the Hawaiian Kingdom are held by the state in trust for native Hawaiians and the general public. Another provision established that a pro rata portion of the revenue from these lands, the public land trust, should go to the newly established Office of Hawaiian Affairs (OHA) for the benefit of the Hawaiian community. The Legislature subsequently set the pro rata share at twenty-percent. One of the points emphasized by Gov. Waiheʻe, however, is that OHA has not been receiving that pro rata share but instead receives a set amount of $15.1 million annually. The $15.1 million dollar figure, set in 2006 by the Legislature as a result of a series of court cases, is far from the actual amount that OHA should be receiving, which recently was calculated to be approximately $35 million annually – over twice as much!

The second panel in the series, held at Windward Community College in March, centered around the theme of Moʻomeheu or culture. Recent issues in the courts on interpreters for ʻōlelo Hawaiʻi speakers and a case pending at the Hawaiʻi Supreme Court on the right to be educated with ʻōlelo Hawaiʻi as the medium, sparked a rich discussion around the purpose of the ʻōlelo Hawaiʻi and educational provisions in the Constitution. It highlighted the immense growth in the use of ʻōlelo Hawaiʻi in both the home and at schools, but also how much more must be done to ensure that our native language not only survives but flourishes. In looking at the Constitution’s provisions relating to water, the panel saw the impetus for the water amendments directly related to the difficulty that kalo farmers in Kahaluʻu, Waiāhole, and Waikāne had sustaining kalo cultivation when vast amounts of water were diverted from Oʻahu’s windward valleys to the plantations on the central plains.

The most recent discussion took place earlier in April at the Hawaiʻi Judiciary Center examining the ways in which the 1978 Constitution affected Ola or life and well-being. The panel began by recognizing the enormous contributions of Aunty Frenchy De Soto at the 1978 ConCon – her determination to seek specific provisions to improve the well-being and life of the Hawaiian people, her efforts in advancing self-determination for the Native Hawaiian community, and her concern for the environment and future generations – were groundbreaking at the time and are still groundbreaking today. Panel members hailed provisions in the Constitution recognizing that the State’s public lands and water resources are held in trust for the people, acknowledging the vital importance of agricultural lands, and articulating the right to a clean and healthful environment. In addition, panelists pointed to the lack of funding and personnel for crucial agencies tasked with environmental protections as failures in implementing the constitutional provisions.

The final panel in the discussion series will address Ea or sovereignty and will be hosted by Hawaiʻinuiākea School of Hawaiian Knowledge on May 10, 2018.

In each of the panels, the question of whether to have another convention was considered. In thoughtful and varied answers, the panelists expressed optimism that another convention could act as a catalyst for further progress and provide the next generation with an opportunity to shape not only the constitution, but Hawaiʻi’s future. On a more cautionary note, panelists raised concerns about possible threats to Hawaiʻi’s forward looking and progressive constitution given the national political climate and the unprecedented use of well-financed outside lobbying forces to influence important issues.

Governor Waiheʻe noted that at the 1978 ConCon, the youngest delegates were tasked with drafting the preamble to the Constitution in recognition that the Constitution would have the most profound impact on their generation. As the highlighted language below demonstrates, the new preamble built upon the earlier one, but added important provisions recognizing Hawaiʻi’s unqueness as an island state and emphasizing the significance of both ʻāina and pono actions.

We, the people of Hawaii, grateful for Divine Guidance, and mindful of our Hawaiian heritage and uniqueness as an island State, dedicate our efforts to fulfill the philosophy decreed by the Hawaii State motto, “Ua mau ke ea o ka aina i ka pono.”

We reserve the right to control our destiny, to nurture the integrity of our people and culture, and to preserve the quality of life that we desire.

We reaffirm our belief in a government of the people, by the people and for the people, and with an understanding and compassionate heart toward all the peoples of the earth, do hereby ordain and establish this constitution for the State of Hawaii.

While all of us consider whether it is time to have another constitutional convention, we should keep in mind the words added to the 1978 Constitution’s preamble, words uttered by Kamehameha III in 1843 when sovereignty was restored to the Hawaiian Kingdom after a five-month period under British occupation:

Ua mau ke ea o ka ʻāina i ka pono.

The sovereignty and life of the land continues through pono actions.