Ka Wai Ola - Office of Hawaiian Affairs, Volume 10, Number 5, 1 May 1993 — News from Washington D.C. [ARTICLE+ILLUSTRATION]

News from Washington D.C.

Mai Wakinekona Mai

by Paul Alexander Washington, D.C. Counsel for OHA

What a constitution ean be

As the Hawai'i state Legislature wrestles with how to provide for a Hawaiian constitutional eonvention, it seems appropriate to discuss what a constitution is, or ean be. Many people use the phrase "organic document" (meaning living and changing) when defining the term "constitution." This is because a constitution provides the basic or underlying contract between a Deoole

and their government. In democratic societies, it is the people who create the government and assign or allow the government certain basic powers, establish conditions for the exercise of those powers, and other-

wise define the scope of that government. In these constitutions the operative concept is that government only has those powers delegated to it; it is not the source of power itself. In other societies, it may be the government or ruling members of the society who set out the eon-

stitution defining the allocation of power between the government and the people. Power is also perceived as being inherent in the govemment. Most modern governments have a written constitution. Nations with a long tradition of govemment, recorded in custom, decrees of the rulers, and decisions of the courts, will refer to their cluster of goveming princinles as an unwritten

constitution. Great Britain's cluster of ruling documents, customs and decrees (such as the Magna Carta, by whieh the monarchy gave up power to the nobility) is one of the more well known "unwritten constitutions"

among modem govemments. Many native govemments have had unwritten constitutions, whieh have guided their govemmental institutions for centuries. Native Hawaiians governed themselves for over a thousand years without reference to a written constitution.

In the late 1800s and again in the 1930s, native governments were encouraged to adopt Western-style constitutions. Oftentimes these "adopted" documents did not reflect the culture or tradition of the native people. In the last several decades, native govemments, particularly Indian tribes, have been revising their constitution to reflect both their cultural/political values and traditions, as well as to provide for effective goveming mechanisms. Constitutions ean be very general and deal in broad fundamental concepts; the Constitution of the United States is a primary example of such a constitution. Generally these constitutions are fairly short and not easily amended. They rely on a delegation of legislative and executive power to governmental entities as the means of dealing with specific applications of broad principles. Other constitutions ean be very specific and contain a great deal of detail conceming the day-to-day operations of the government; many state constitutions are examples of these detailed constitutions. Generally these specific constitutions need to be

fairly easy to amend and are amended with great frequency. Generally the first section of a constitution, the preamble, provides a statement of the purpose of the creation of the particular govemment. For example, "We, the people, in order to form a more perfect union" forms the preamble of the U.S. Constitution. Preambles are often short, concise statements of principles and purposes. Occasionally native governments have utilized the preamble as a plaee to record key historic facts or events that form the eollective history of the native people, including references to eultural values. A key component of any eonstitution is the creation of govemmenlal functions and institutions, such as an executive branch, a legislative body and a judicial body. Various arrangements are possibIe. In the United States, the mode has been separation of powers, in whieh eaeh of the govemmental functions is carried out separately. Separation of powers has not always been the model in native governments. In some tribal gov-

ernments, all functions have been carried out by tribal councils, and there is no separate judiciary or executive branch. The legislative function ean also be organized in many different ways. The first issue eoncems how mueh power is delegated to any legislative body or bodies. Power that is not delegated is usually retained by the people. Delegations are specific, for example, the power to tax, to regulate land use, the power to contract, and so on. In some tribal constitutions, the legislative body may only be granted authority up to a certain point, and decisions beyond that point have to be taken to the people. For example, no natural resource development, leasing or ventures may be entered into without the approval of the full electorate of the tribe. Other limitations may require certain types of contracts to be brought before the full voting membership of the tribe or nation for approval. Next month's eolumn will eontinue to examine how a constitution is drafted.