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Do you know of any other State that
does go as far as the proposal offered here
in this amendment?
THE CHAIRMAN: Delegate Mitchell.
DELEGATE MITCHELL: Yes. I think
the other states which I think we have
cited. I think our language carries with it
more weight of interpretation with the
federal and state courts, but I would think
that civil rights mentioned in Hawaii's
Constitution have been interpreted by the
courts to include public accommodations,
the right to purchase and own property,
the right to travel freely from state to
state, and the -whole group of personal
rights which this section of the constitu-
tion is intended to cover.
THE CHAIRMAN: Delegate Hostetter.
DELEGATE HOSTETTER: But none do
include discrimination by the State or a
state action clause. Is this correct?
THE CHAIRMAN: Delegate Mitchell.
DELEGATE MITCHELL: Although the
words "the state" are not used, it is a
state constitution, and it is the prohibition
in each of these sections of these various
state constitutions that go to the state.
Mr. Smith of our research staff has sug gested that I convey this information to
you, Delegate Hostetter, that these are the
new state constitutions which have been
elected and in each case, they have included
the act of discrimination language. But in
the old New York Constitution for years
there has been this language: "No person
shall, because of race, color, creed or reli-
gion, be subjected to any discrimination in
his civil rights by any other person or by
any firm, corporation or institution or by
the state or any agency or subdivision of
the state."
Now, we believe that, as the courts have
interpreted it, state action includes all of
the language there in the words "by the
state".
THE CHAIRMAN: Delegate Hostetter.
DELEGATE HOSTETTER: Which con-
stitution of the state of New York was
this?
THE CHAIRMAN: Delegate Mitchell.
DELEGATE MITCHELL: This was the
old New York Constitution — well, the pres-
ent New York Constitution, because the
new constitution failed of passage.
THE CHAIRMAN: Delegate Hostetter.
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DELEGATE HOSTETTER: And the date
of that was what, if you know?
THE CHAIRMAN: Delegate Mitchell.
DELEGATE MITCHELL: It is 1938.
THE CHAIRMAN: Delegate Scanlan.
DELEGATE SCANLAN: Delegate Mitch-
ell, is it not fair to say that the problem
of where state action ends and the private
sector begins, that you were discussing
with Delegate Hostetter, would remain un-
der your language as well as the equal
protection language?
In other words, whatever language is
used, whether the protection is only one
that speaks in terms of the equal protec-
tion clause or whether it speaks in terms
of the more specific language that you
recommend, the courts are still going to
have the problem of marking out where
state action ends and where the truly
private sector begins.
So in that sense, your amendment does
not change that problem one way or an-
other, does it?
TIHE CHAIRMAN: Delegate Mitchell.
DELEGATE MITCHELL: That is correct.
THE CHAIRMAN: Are there any further
questions of the minority spokesman ?
Delegate Morgan.
DELEGATE MORGAN: Mr. Chairman,
this colloquy this afternoon has prompted
me to ask Delegate Mitchell a question. Is
this supposed to be a limitation on the Gen-
eral Assembly to legislate in this field, or is
it supposed to say what the General As-
sembly cannot do?
THE CHAIRMAN: Delegate Mitchell.
DELEGATE MITCHELL: No. I think
this is in the way of a mandate to the
General Assembly, to act in this area, and
I do not think this is any limitation on
what the General Assembly can and should
do in response to the needs of the State.
THE CHAIRMAN: Delegate Morgan.
DELEGATE MORGAN: And if the Gen-
eral Assembly would find it essential at
some time in the future to legislate in
what you might call the private sector of
the economy, there is nothing in this lan-
guage which would prevent them from doing
so?
THE CHAIRMAN: Delegate Mitchell.
DELEGATE MITCHELL: No, I do not
believe so, because I believe there is some
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