State v. Mallan

950 P.2d 178 (1998)

86 Hawai'i 440

STATE of Hawaii, Respondent-Appellee,

v.

Lloyd MALLAN, Petitioner-Appellant.

No. 15608.

Supreme Court of Hawai`i.

January 30, 1998.

*179 Linda C.R. Jameson, Deputy Public Defender, on the briefs, for petitioner-appellant.

Lori S. Nishimura, Deputy Prosecuting Attorney, on the briefs, for respondent-appellee.

Before MOON, C.J., and KLEIN, LEVINSON, NAKAYAMA and RAMIL, JJ.

RAMIL, Justice, with whom MOON, Chief Justice, joins.

We granted certiorari to review the memorandum opinion of the Intermediate Court of Appeals (ICA) filed on May 10, 1993. The central issue before us is whether the express right to privacy located in article I, section 6 of the Hawai`i Constitution [1] encompasses a right to possess and use marijuana [2] for recreational purposes. Because we believe that the right to privacy does not include *180 such a right, we affirm the ICA's decision.

I. BACKGROUND

The facts of this case are not in dispute. On October 20, 1990, at approximately 10:15 p.m., Petitioner-Appellant Lloyd Mallan was arrested in the parking lot of the Waikīkī Shell after Honolulu police officers, attracted by the odor of burning marijuana, found a partially burnt marijuana cigarette in Mallan's automobile. Mallan was charged with promoting a detrimental drug in the third degree, in violation of Hawai`i Revised Statutes (HRS) § 712-1249 (1993). [3]

Mallan does not deny that he broke the law on the night in question:

[MALLAN:] I have a deep interest in music and I'd just seen the Honolulu Symphony concert and went back to my car and listened to the—turned on the radio and listened to a jazz tune that I hadn't heard for years, by Keith Jarrett....

And I had a little bit of, of marihuana with me. And I thought as commemoration of my listening to Keith Jarrett, I would smoke a joint or whatever I had left, which was minimal.

And I was pursuing my sense of happiness and that it would enhance my appreciation of the music....

... I thought I was in privacy. Nobody was around. It was after the concert and I had no place to go, really. And a voice [inside my head] said, "Don't do it," but I did it anyway.

Before trial, however, Mallan filed a motion to dismiss. In support of the motion, Mallan argued, inter alia, that the right to smoke marijuana is protected by the Hawai`i Constitution's right to privacy. At a subsequent hearing on the motion, the parties stipulated to the testimony of Mallan's expert witnesses. The witnesses would have testified that, in their opinion, marijuana is not addictive and that there is no proof that the use of marijuana is harmful to the user or to others. However, the witnesses would also have testified that the effects of marijuana have been the subject of debate. The experts would have further testified that, in their opinion, the studies concluding that marijuana has harmful effects are speculative and flawed. After oral argument on the motion, the trial court rejected Mallan's contentions. The trial court ruled that "possession and use of marihuana ... is not protected under our right of privacy." The trial court ruled that "the possession of marihuana... does not rank as any kind of fundamental freedom" and that the statute need only be supported by a rational basis, not a compelling state interest. The trial court noted that the question whether marijuana has harmful effects is a controversial area. The trial court noted that, according to the stipulated evidence, some literature supports the conclusion that marijuana is harmful, while other literature supports the conclusion that it is harmless. Consequently, the trial court ruled that, in applying the rational basis test, the statute is constitutional.

The case then proceeded to trial, and the court found Mallan guilty. Mallan was sentenced to a fine of $50. Mallan filed a timely notice of appeal, and the case was assigned to the ICA. The ICA based its decision on our prior case law holding that the possession of marijuana for personal use is not protected by the right to privacy. See State v. Bachman, 61 Haw. 71 , 595 P.2d 287 (1979); State v. Renfro, 56 Haw. 501 , 542 P.2d 366 (1975); State v. Baker, 56 Haw. 271 , 535 P.2d 1394 (1975). The ICA noted that Renfro and Baker were decided before article I, section 6 was added to the Hawai`i Constitution. The ICA further noted that, although Bachman was decided five months after article I, section 6 was ratified, the appellate briefs in Bachman were filed before ratification. Nevertheless, the ICA felt obligated to follow *181 Bachman and, therefore, affirmed Mallan's conviction. Mallan subsequently applied to this court for a writ of certiorari, which we granted.

II. STANDARD OF REVIEW

The scope of the right to privacy under article I, section 6 of the Hawai`i Constitution is a question of constitutional law. "We answer questions of constitutional law by exercising our own independent constitutional judgment based on the facts of the case. Thus, we review questions of constitutional law under the right/wrong standard." State v. Arceo, 84 Hawai`i 1, 11, 928 P.2d 843, 853 (1996) (internal quotation marks and citations omitted).

III. DISCUSSION

Initially, we note that although our prior cases addressing the constitutionality of our marijuana possession statutes did address the right to privacy, see Bachman, supra ; Renfro, supra ; Baker, supra, those cases did not directly address article I, section 6. Thus, the specific question whether article I, section 6 encompasses a constitutional right to possess and use marijuana has yet to be answered by this court.

A. Our Prior Privacy Case Law: Mueller, Kam, and Baehr

1. Two Approaches

To date, our case law interpreting article I, section 6 has apparently established two distinct approaches to the right to privacy. [4] The first approach was applied by this court in State v. Mueller, 66 Haw. 616 , 671 P.2d 1351 (1983), and later by the plurality in Baehr v. Lewin, 74 Haw. 530 , 852 P.2d 44 , reconsideration granted in part, 74 Haw. 650 , 875 P.2d 225 (1993). Under this approach, "only personal rights that can be deemed `fundamental' or `implicit in the concept of ordered liberty' are included in this guarantee of personal privacy." Mueller, 66 Haw. at 628 , 671 P.2d at 1355 (quoting Roe v. Wade, 410 U.S. 113, 152 , 93 S.Ct. 705, 726 , 35 L.Ed.2d 147 (1973)) (citations omitted). In determining which rights are fundamental, we must look

to the "traditions and [collective] conscience of our people" to determine whether a principle is "so rooted [there] ... as to be ranked as fundamental." ... The inquiry is whether a right involved "is of such a character that it cannot be denied without violating those `fundamental principles of liberty and justice which lie at the base of all our civil and political institutions'...."

Baehr, 74 Haw. at 556 , 852 P.2d at 57 (quoting Griswold v. Connecticut, 381 U.S. 479, 493 , 85 S.Ct. 1678, 1686 , 14 L.Ed.2d 510 (1965) (Goldberg, J., concurring)) (alterations in original). If a right is determined to be fundamental, it is "subject to interference only when a compelling state interest is demonstrated." Comm. Whole Rep. No. 15, in 1 Proceedings of the Constitutional Convention of Hawai`i of 1978, at 1024 (1980). See also Mueller, 66 Haw. at 627 , 671 P.2d at 1359 . In the absence of a fundamental right, however, a statute need only satisfy the minimum rationality requirements of due process, i.e., it must have a "rational basis." Id. at 628 , 671 P.2d at 1359 .

In the past, we have applied the Mueller/Baehr approach in rejecting claims that certain acts are protected by the right to privacy. In Mueller , our first case directly addressing the scope of article I, section 6, we held that prostitution is not protected by the right to privacy because the decision "to engage in sex for hire at home" is not a fundamental right nor is basic to ordered liberty. Id. at 628, 630 , 671 P.2d at 1359, 1360 . Similarly, in Baehr , the plurality held, in an opinion written by Justice Levinson:

*182 [W]e do not believe that a right to same-sex marriage is so rooted in the traditions and collective conscience of our people that failure to recognize it would violate the fundamental principles of liberty and justice that lie at the base of all our civil and political institutions. Neither do we believe that a right to same-sex marriage is implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if it were sacrificed. Accordingly, we hold that the [plaintiffs] do not have a fundamental constitutional right to samesex marriage arising out of the right to privacy or otherwise.

Baehr, 74 Haw. at 556-57 , 852 P.2d at 57 .

It should be noted that, in applying the Mueller/Baehr approach, we have tended to focus on "personal decisions relating to marriage, procreation, contraception, family relationships, and child rearing and education." Mueller, 66 Haw. at 627 , 671 P.2d at 1359 (quoting Carey v. Population Servs. Int'l, 431 U.S. 678, 685 , 97 S.Ct. 2010, 2016 , 52 L.Ed.2d 675 (1977)) (internal quotation marks and ellipses omitted). A report from the 1978 Constitutional Convention's Committee of the Whole, "reflecting the consensus of the assembly," id. at 625, 671 P.2d at 1357 , stated that the right to privacy "is similar to the privacy right discussed in [federal] cases such as Griswold v. Connecticut, 381 U.S. 479 , 85 S.Ct. 1678 , 14 L.Ed.2d 510 (1965), Eisenstadt v. Baird, 405 U.S. 438 , 92 S.Ct. 1029 , 31 L.Ed.2d 349 (1972), Roe v. Wade, 410 U.S. 113 , 93 S.Ct. 705 , 35 L.Ed.2d 147 (1973), etc." Comm. Whole Rep. No. 15, 1 Proceedings, at 1024. Griswold and Eisenstadt both involved contraception and Roe dealt with abortion. See Griswold, supra ; Eisenstadt, supra ; Roe, supra . Accepting the reasoning in Mueller , Justice Levinson wrote in Baehr : "We ultimately concluded in Mueller that the federal cases cited by the Convention's committee of the whole should guide our construction of the intended scope of article I, section 6." Baehr, 74 Haw. at 552 , 852 P.2d at 55 . Therefore, "[w]hile the outer limits of this aspect of privacy have not been marked[,]" Mueller, 66 Haw. at 627 , 671 P.2d at 1359 (quoting Carey, 431 U.S. at 685 , 97 S.Ct. at 2016 ), it is clear that the framers of article I, section 6 and our own decisions have emphasized protection of intimate personal relationships such as those concerning marriage, contraception, and the family.

The second approach, adopted by this court in State v. Kam, 69 Haw. 483 , 748 P.2d 372 (1988), is ultimately based on the United States Supreme Court's decision in Stanley v. Georgia, 394 U.S. 557 , 89 S.Ct. 1243 , 22 L.Ed.2d 542 (1969). In Stanley , the Court held that the right to read or view pornographic material in the privacy of one's home is protected by the First Amendment. Id. at 565 , 89 S.Ct. at 1248 ("If the First Amendment means anything, it means that a State has no business telling a man, sitting alone in the privacy of his own house, what books he may read or what films he may watch."). In Kam , we accepted the reasoning in Stanley , but additionally based the right to read or view pornographic material within the home on article I, section 6. Kam, 69 Haw. at 493-94 , 748 P.2d at 378-79 . We held that the right "to read or view pornographic material in the privacy of one's home must be afforded the protection of the Hawaii Constitution article I, section 6[.]" Id. at 493 , 748 P.2d at 378-79 . Furthermore, we extended the principles in Stanley to include the "correlative right to purchase [pornographic] materials for ... personal use [at home]." Id. at 495, 748 P.2d at 380 (emphasis added). We reasoned that "[i]t is obvious that an adult person cannot read or view pornographic material in the privacy of his or her own home if the government prosecutes the sellers of pornography... and bans any commercial distribution." Id. at 495 , 748 P.2d at 379 . Thus, under the Stanley/Kam approach, the right to privacy located in article I, section 6 encompasses the right to read or view pornographic material in the privacy of one's home, as well as the correlative right to purchase such materials for use in one's home. The State cannot interfere with these rights unless a compelling state interest is demonstrated. Id.

It should be noted that there are two significant aspects of the Stanley/Kam approach. First, the approach focuses squarely on the home as the situs of privacy. Rather than focusing on intimate relationships, as in the Mueller/Baehr approach, the Stanley *183 /Kam approach is tied to a specific place. Stanley repeatedly referred to the privacy of one's own home:

Moreover, in the context of this case — a prosecution for mere possession of printed or filmed matter in the privacy of one's home —that right takes on an added dimension.... He is asserting the right to read or observe what he pleases—the right to satisfy his intellectual and emotional needs in the privacy of his own home. ... Whatever may be the justifications for other statutes regulating obscenity, we do not think they reach into the privacy of one's own home. ... As we have said, the States retain broad power to regulate obscenity; that power simply does not extend to mere possession by the individual in the privacy of his own home.

Stanley, 394 U.S. at 564, 565, 568 , 89 S.Ct. at 1247, 1248, 1249 (emphases added). "The Constitution extends special safeguards to the privacy of the home, just as it protects other special privacy rights such as those of marriage, procreation, motherhood, child rearing, and education." United States v. Orito, 413 U.S. 139, 142 , 93 S.Ct. 2674, 2677 , 37 L.Ed.2d 513 (1973). "The protection afforded by Stanley v. Georgia, 394 U.S. 557 , 89 S.Ct. 1243 , 22 L.Ed.2d 542 (1969), is restricted to a place, the home. In contrast, the constitutionally protected privacy of family, marriage, motherhood, procreation, and child rearing is not just concerned with a particular place, but with a protected intimate relationship." Paris Adult Theatre I v. Slaton, 413 U.S. 49 , 66 n. 13, 93 S.Ct. 2628 , 2640 n. 13, 37 L.Ed.2d 446 (1973). It is true that Kam extended the principles in Stanley to include the buying and selling of pornographic materials, and such commercial activities do not take place in the home. However, we also stated in Kam that the right to purchase pornographic materials is a "correlative right" to the right established by Stanley . Thus, even though the material may be purchased outside the home, it still must be purchased for personal use within the home. Therefore, a crucial factor in the Stanley /Kam approach is its emphasis on the home.

The second aspect of the Stanley/Kam approach is that freedom of speech and freedom of the press are strongly implicated. Pornography and obscenity deal with printed or filmed matter and, consequently, raise First Amendment concerns. Stanley was based on the First Amendment, as applied to the states through the Fourteenth Amendment. Stanley, 394 U.S. at 568 , 89 S.Ct. at 1249 ("We hold that the First and Fourteenth Amendments prohibit making mere private possession of obscene material a crime." (Emphasis added.)). Although Kam subsequently grounded the right to read or view pornographic material within the home on article I, section 6, we cannot ignore the fact that freedom of speech and freedom of the press are essential factors in the Stanley /Kam analysis.

2. The Present Case

In the present case, Mallan argues that the right to privacy in article I, section 6 encompasses the right to possess marijuana for personal use. We disagree. Applying the Mueller/Baehr approach, it is clear that the right to possess and use marijuana cannot be considered a "fundamental" right that is "implicit in the concept of ordered liberty." We cannot say that smoking marijuana is a part of the "traditions and collective conscience of our people." In Hawai`i, possession of marijuana has been illegal since 1931. See 1931 Haw. Sess. L. Act 152, § 12, at 155-56. In the rest of the United States, the possession and/or use of marijuana, even in small quantities, is almost universally prohibited. [5] Therefore, tradition appears to be in *184 favor of the prohibition against possession and use of marijuana. Additionally, we have no reason to believe that the collective conscience of the people supports the possession and use of marijuana under the circumstances of this case. Furthermore, we cannot say that the principles of liberty and justice underlying our civil and political institutions are violated by marijuana possession laws. We dare say that liberty and justice can exist in spite of the prohibition against marijuana possession. Therefore, the purported right to possess and use marijuana is not a fundamental right and a compelling state interest is not required.

Because the right to privacy is not implicated, HRS § 712-1249 need only survive the rational basis test.

Generally, where no fundamental rights or suspect classifications are involved, there is a due process violation only if there is no rational basis to sustain the challenged statute.... Under the rational basis test, we inquire as to whether a statute rationally furthers a legitimate state interest. Our inquiry seeks only to determine whether any reasonable justification can be found for the legislative enactment.

Estate of Coates v. Pacific Engineering, 71 Haw. 358, 363-64 , 791 P.2d 1257, 1260 (1990) (citations omitted). Furthermore, we have long held that: "(1) legislative enactments are presumptively constitutional; (2) a party challenging a statutory scheme has the burden of showing unconstitutionality beyond a reasonable doubt; and (3) the constitutional defect must be clear, manifest, and unmistakable." State Organization of Police Officers (SHOPO) v. Society of Professional Journalists—University of Hawai`i Chapter, 83 Hawai`i 378, 389, 927 P.2d 386, 397 (1996) (citing Pray v. Judicial Selection Comm'n, 75 Haw. 333 , 340, 861 P.2d 723, 727 (1993)). See also Kam, 69 Haw. at 496 , 748 P.2d at 380 ; Mueller, 66 Haw. at 626-27 , 671 P.2d at 1358 . Thus, in the present case, Mallan has the heavy burden of demonstrating that HRS § 712-1249 lacks any rational basis. If Mallan fails to satisfy his burden, the statute is presumed to be constitutional and must be upheld.

We believe that Mallan has failed to satisfy his burden. The stipulated evidence provided by Mallan's expert witnesses certainly support his argument that marijuana is not harmful. However, those experts *185 would also have testified that the question whether marijuana has harmful effects is still controversial and that there are studies supporting the other side of the debate. "It is well settled that when a substance has been proscribed as harmful, the presumption of constitutionality applies although there are conflicting scientific views as to its harmful effects." State v. Baker, 56 Haw. 271, 276 , 535 P.2d 1394, 1397 (1975). Thus, insofar as a genuine controversy exists and scientists have not reached a consensus as to the harmful effects of marijuana, we cannot say that Mallan has sufficiently rebutted the presumption of constitutionality attached to HRS § 712-1249 and that the statute lacks any rational basis. See id. at 278, 535 P.2d at 1398 ; State v. Renfro, 56 Haw. 501, 503 , 542 P.2d 366, 368 (1975) (holding that a marijuana possession statute's presumption of constitutionality had not been sufficiently rebutted). [6] It is not our role to make an independent legislative determination as to the harmfulness of marijuana. Our role is to determine whether Mallan has overcome the presumption of constitutionality and has proven that the statute is not supported by any rational basis at all. This we cannot say.

It is also clear that the Stanley/Kam approach does not support Mallan's purported right to possess and use marijuana. The record indicates that Mallan was not in the privacy of his own home when he was arrested for possession of marijuana. Rather, he was sitting in an automobile parked in a public parking lot. Additionally, this case involves the possession of marijuana, not the possession of pornographic material. Therefore, neither of the two elements required under the Stanley/Kam approach have been met, and the right to privacy does not apply on this basis.

However, we note that because Mallan relies on Kam in arguing this case, he is apparently suggesting that we extend the Stanley/Kam approach beyond the home and beyond pornography. We decline to do so. Stanley itself limited its application to cases implicating First Amendment concerns. The Court noted:

What we have said in no way infringes upon the power of the State or Federal Government to make possession of other items, such as narcotics, firearms, or stolen goods, a crime. Our holding in the present case turns upon the Georgia statute's infringement of fundamental liberties protected by the First and Fourteenth Amendments. No First Amendment rights are involved in most statutes making mere possession criminal.

Stanley, 394 U.S. at 568 n. 11, 89 S.Ct. at 1249 n. 11. Thus, by its own terms, Stanley rejected any application to drug possession cases. Furthermore, by attempting to sever Stanley and Kam from the concept of privacy within the home, Mallan appears to suggest that the right to privacy should protect a defendant any time he subjectively feels that he is "in privacy." In the present case, Mallan thought that he was "in privacy" when he was sitting in an automobile in a public parking lot. We are not prepared to extend the right to privacy this far. To do so would give "talismanic effect" to the phrase "in privacy"—an approach we have rejected in the past. See Baehr, 74 Haw. at 555 , 852 P.2d at 57 ; Mueller, 66 Haw. at 630 , 671 P.2d at 1360 .

B. Further Approaches to the Right to Privacy

Although, to date, our cases have recognized two approaches to the right to privacy, this does not mean that additional approaches cannot be adopted in the future. In Mueller , we were careful to note that "the outer limits of this aspect of privacy [ i.e., the personal autonomy prong] have not been marked[.]" Mueller, 66 Haw. at 627 , 671 P.2d at 1359 .

The approach taken in Mueller and Baehr was based on federal cases such as Griswold, Eisenstadt, and Roe . Similarly, the approach taken in Kam was based on Stanley , another federal case. Nevertheless, we are not limited to the federal interpretation *186 of constitutional rights and have often extended the protections of the Hawai`i Constitution beyond those of the United States Constitution. See, e.g., State v. Bowe, 77 Hawai`i 51, 57, 881 P.2d 538, 544 (1994); State v. Lessary, 75 Haw. 446, 453-57 , 865 P.2d 150, 154-55 (1994); State v. Quino, 74 Haw. 161, 170 , 840 P.2d 358, 362 , reconsideration denied, 74 Haw. 650 , 843 P.2d 144 (1992), cert. denied, 507 U.S. 1031 , 113 S.Ct. 1849 , 123 L.Ed.2d 472 (1993); State v. Kaluna, 55 Haw. 361, 369 , 520 P.2d 51, 58-59 (1974); State v. Texeira, 50 Haw. 138 , 142 n. 2, 433 P.2d 593 , 597 n. 2 (1967). "As the ultimate judicial tribunal with final, unreviewable authority to interpret and enforce the Hawaii Constitution, we are free to give broader privacy protection than that given by the federal constitution." Kam, 69 Haw. at 491 , 748 P.2d at 377 . Moreover, unlike the federal constitution, our state constitution contains a specific provision expressly establishing the right to privacy as a constitutional right. Thus, our case law and the text of our constitution appear to invite this court to look beyond the federal standards in interpreting the right to privacy.

Consequently, applying the Mueller/Baehr approach and the Stanley/Kam approach to the facts of this case is simply an initial step in the analysis. The question remains whether we should adopt another, completely new approach not based on federal case law. The development of new approaches to the right to privacy will, of course, take place on a case-by-case basis, as different factual situations arise and new legal standards are formulated. [7] However, regardless of the direction in which our privacy jurisprudence evolves, it is clear, at present, that our right to privacy does not extend to the possession and use of marijuana.

"[W]e have long recognized that the Hawai`i Constitution must be construed with due regard to the intent of the framers and the people adopting it, and that the fundamental principle in interpreting a constitutional provision is to give effect to that intent." Convention Center Authority v. Anzai, 78 Hawai`i 157, 167, 890 P.2d 1197, 1207 (1995) (internal quotation marks and citations omitted). Based on the committee reports and debates in the Constitutional Convention, we believe that the delegates adopting the privacy provision did not intend to decriminalize the possession and use of contraband drugs.

Nothing in the committee reports indicates that the delegates intended such a drastic step as the decriminalization of drugs for personal consumption. If the delegates had intended such a result, surely they would have placed an explicit reference in the committee reports. Instead, the committee reports contain no mention of the legalization of illicit drugs. See Stand. Comm. Rep. No. 69, in 1 Proceedings, at 674-76; Comm. Whole Rep. No. 15, in 1 Proceedings, at 1023-24.

A close reading of the convention debates reveals a sincere concern, perhaps even a strong fear, among the delegates that an express right to privacy might further impede the battle against illegal drugs.

Now, what alarms me is that by putting in the language as it is right now—that the right to privacy "is recognized and shall not be infringed without the showing of a compelling state interest"—goes beyond our present statutory law and would in fact hinder law enforcement.... The result would then be that it would be virtually impossible, as I can see it, to stop criminal activity conducted in what can be considered a dwelling.... For instance, if a *187 person were to manufacture cocaine, angel dust or what have you, if it's for the purpose of manufacturing for personal use,... I don't see how anyone can say that there's a compelling state interest to go in there. This language seems to say that it's all right for a person to do anything he wants as long as we cannot show that someone else will be affected.

2 Proceedings, at 629-30 (Delegate Tam). In response, Delegate Hino reassured Delegate Tam that the privacy provision was not intended to hinder law enforcement or protect criminals.

I'd like to allay the fears of law enforcement officials and people connected with law enforcement that this provision will make it a little more difficult for the law to be enforced. This factor was recognized during our committee's deliberations .... [W]e proposed that this privacy provision be put in a separate section, of and by itself, to show that it was not the intent of the committee to upset any kind of precedents on criminal justice or law enforcement procedures; that this privacy provision would refer to and protect the rights of noncriminals.

Id. at 630 (Delegate Hino) (emphasis added).

Other delegates raised similar concerns:

I feel that the greatest benefit in the long run in Hawaii shall be from the criminal element .... I honestly feel from my experience that this right to privacy is a protective device for these so-called professional criminals, who have become so sophisticated in their techniques and their planning.... And this type of right to privacy, as good as it is for all of us, somehow will have an insidious effect on a very serious concern in Hawaii today—the rising tide of crime.

Id. at 632 (Delegate Chung).

[I]f, as the previous delegate has said, smoking marijuana was one of the main reasons this has been proposed, [8] then I am in favor of deleting the committee report —that portion of that.... The cops are having a hard enough time enforcing the state laws. Why make it harder for them and put more restrictions upon them, especially when crime today is the number one concern of the citizens of this State. I feel the present language in the Constitution is adequate to protect the rights of the individual. Let's not make it any more difficult for law enforcement people to do their job.

Id. at 641 (Delegate Kojima).

However, these concerns were allayed by the delegates in favor of the privacy provision, who asserted that the provision would not legalize the use of illicit drugs.

I don't think this amendment will have that much to do with promoting organized crime or drugs. I voted in favor of the privacy amendment previously, and not for the reasons that Delegate Hale evidently introduced it.... I really don't see the previous discussion [about the right to privacy promoting organized crime and drugs] applying in this situation as far as crime is concerned.

1 Proceedings, at 363 (Delegate O'Toole). Furthermore,

Delegate Taira ... emphasized that he saw nothing in the privacy provision that would stimulate or encourage the growth of organized crime or the use of drugs, as had been alluded. If that were so, he added, he would be very strongly against the provision.

Id. Finally:

I've heard a lot of talk about what this amendment could do, what it cannot do, its redundancy, etc. I am a lay person, never having graduated from college. I live with my people, of all ethnic groups, we live together. And this is easier to see, that the right of the people to privacy shall be recognized. It doesn't say that we encourage underworld activity, it doesn't say anything *188 about smoking pakalolo [9] in your bedroom, it just says that the "right of the people to privacy is recognized...."

Id. at 365 (Delegate De Soto). Thus, the delegates who spoke in favor of the privacy provision did so based on their understanding that the right to privacy would neither hinder law enforcement nor further criminal activity. Inasmuch as we are convinced that the delegates who adopted the privacy provision did not intend to legalize contraband drugs, we also believe that the voters who later ratified the privacy provision did not intend such a result.

Therefore, while this court might extend the scope of article I, section 6 in the future by adopting new standards and applying these standards to new situations, it is clear, at present, that the right to privacy in the Hawai`i Constitution does not extend to the possession and use of marijuana for recreational purposes.

C. Ravin v. State

Mallan argues that we should follow the example of the Alaska Supreme Court in Ravin v. State, 537 P.2d 494 (Alaska 1975). In Ravin , the Alaska court held that the express right to privacy in the Alaska Constitution protects the right to possess and use marijuana in the privacy of one's home:

[W]e conclude that citizens of the State of Alaska have a basic right to privacy in their homes under Alaska's constitution. This right to privacy would encompass the possession and ingestion of substances such as marijuana in a purely personal, non-commercial context in the home unless the state can meet is substantial burden and show that proscription of possession of marijuana in the home is supportable by achievement of a legitimate state interest.

Id. at 504 . The reasoning the court applied in reaching this conclusion is highly instructive. The court first examined whether the right to possess or ingest marijuana constitutes a fundamental right that must be supported by a compelling state interest. Id. at 502 . The court concluded that possession and ingestion of marijuana is not a fundamental right. Id. However, the court went on to address "the distinctive nature of the home as a place where the individual's privacy receives special protection." Id. at 503 . The court noted:

The privacy amendment to the Alaska Constitution was intended to give recognition and protection to the home. Such a reading is consonant with the character of life in Alaska. Our territory and now state has traditionally been the home of people who prize their individuality and who have chosen to settle or to continue living here in order to achieve a measure of control over their own lifestyles which is now virtually unattainable in many of our sister states.

The home, then, carries with it associations and meanings which make it particularly important as the situs of privacy.

Id. at 503-04 . Thus, the Alaska court took an approach very similar to our own Stanley/Kam approach and focused on the home as the situs of privacy. The court even cited Stanley as authority for its decision. Id. However, it should be noted that Ravin extends the Stanley/Kam approach beyond pornography to include possession of marijuana.

We reject Mallan's suggestion to adopt the Ravin analysis. Initially, we state the obvious: Ravin is a case from another jurisdiction and is in no sense binding upon us. Furthermore, Ravin was based, at least in part, on social and cultural factors unique to Alaska. In addition, as discussed supra, we are not inclined to extend the Stanley/Kam approach any further than the particular circumstances of Stanley and Kam . Moreover, as far as we can determine, Alaska stands alone in extending the right to privacy to include possession and use of marijuana. Other states that have considered the issue uniformly conclude that possession and use of marijuana is not protected. See, e.g., State v. Murphy, 117 Ariz. 57 , 570 P.2d 1070 (Ariz. 1977); Nat'l Org. for the Reform of Marijuana Laws (NORML) v. Gain, 100 Cal.App.3d 586 , 161 Cal.Rptr. 181 (1979); Kreisher v. *189 State, 319 A.2d 31 (Del.1974); Laird v. State, 342 So.2d 962 (Fla.1977) Blincoe v. State, 231 Ga. 886 , 204 S.E.2d 597 (1974); State v. Kelly, 106 Idaho 268 , 678 P.2d 60 (App.), cert. denied, 469 U.S. 918 , 105 S.Ct. 296 , 83 L.Ed.2d 231 (1984); State v. Chrisman, 364 So.2d 906 (La.1978); Marcoux v. Attorney General, 375 Mass. 63 , 375 N.E.2d 688 (1978); People v. Williams, 135 Mich.App. 537 , 355 N.W.2d 268 (1984); State v. Kells, 199 Neb. 374 , 259 N.W.2d 19 (1977); People v. Shepard, 50 N.Y.2d 640 , 431 N.Y.S.2d 363 , 409 N.E.2d 840 (1980); Miller v. State, 458 S.W.2d 680 (Tex.Crim.App.1970); State v. Smith, 93 Wash.2d 329 , 610 P.2d 869 , cert. denied, 449 U.S. 873 , 101 S.Ct. 213 , 66 L.Ed.2d 93 (1980). Finally, even if we were to adopt the Ravin analysis, Mallan's conviction would still be affirmed. Ravin was expressly based on privacy within the home. The record is clear that Mallan was sitting in an automobile parked in a public parking lot.

D. Response to Dissent

At this time, we take the opportunity to respond to the arguments raised by the dissenting opinion. In effect, the dissent's reasoning decriminalizes the use and possession of virtually all contraband drugs used within the home or wherever a person believes he is "in privacy." The dissent's expansive interpretation circumvents the natural development of the right to privacy in two respects: (1) it removes from the developmental process the voice of the people as expressed by legislative action, and (2) it eschews careful case-by-case development of the right to privacy by the courts. The framers of this important right were mindful that it was not their role to define its reach; therefore, they properly entrusted this task to both the legislature and the courts.

Where possible, we should only state broad principles and goals, and let details develop through statute and case law. For this reason we added, "The legislature shall take affirmative steps to implement this right."

1 Proceedings, at 355 (Delegate Hino) (emphases added). Thus, the reasoning of the dissent conflicts with the intent of the delegates who adopted article I, section 6.

Furthermore, the dissent argues that we have failed to address what it considers to be the core issue in this appeal, namely, the extent of the police power. Dissent op. at 454, 950 P.2d at 192 . We believe that we have implicitly addressed the police power issue through our due process analysis.

The police power of the state has traditionally been described as "extend[ing] to the public safety, health, and welfare." State v. Ewing, 81 Hawai`i 156, 164, 914 P.2d 549, 557 (App.1996). See also State v. Lee, 55 Haw. 505, 513 , 523 P.2d 315, 319 (1974). However, the textual basis for invalidating statutes that exceed the police power is somewhat obscure. Article III, section 1 of the Hawai`i Constitution provides:

The legislative power of the State shall be vested in a legislature, which shall consist of two houses, a senate and a house of representatives. Such power shall extend to all rightful subjects not inconsistent with this constitution or the Constitution of the United States.

(Emphasis added.) Thus, our constitution starts from the proposition that the power of the legislature is extremely broad. The power of the legislature is constrained only if it is inconsistent with the state or federal constitutions. Nothing in the Hawai`i Constitution expressly mentions the police power as a restraint upon the legislature.

However, the Hawai`i Constitution does contain an express Due Process Clause in article I, section 5 ("No person shall be deprived of life, liberty or property without due process of law[.]"). In determining whether a statute conflicts with the Due Process Clause, we have applied two tests. If a fundamental right is implicated, the statute is subject to strict scrutiny. If, however, a fundamental right is not implicated, the statute is subject to the rational basis test.

We believe that the police power doctrine is based on the Due Process Clause and should be regarded as an aspect of the rational basis test. Under rational basis review, a statute must "rationally further a legitimate state interest." Estate of Coates, 71 Haw. at 363-64 , 791 P.2d at 1260 . A state interest is "legitimate" if it involves the *190 public health, safety, or welfare. Thus, the police power issue is subsumed within the rational basis test. In other words, under minimum rationality due process analysis, a statute must be rationally related to the public health, safety, or welfare. See In re Applications of Herrick and Irish, 82 Hawai`i 329, 349, 922 P.2d 942, 962 (1996) ("To establish [a] ... violation of substantive due process, an aggrieved person must prove that the government's action was clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare."). [10]

However, in applying the rational basis test, courts in modern times have given great deference to legislative enactments. Statutes are subject to a presumption of constitutionality and the burden of demonstrating that the statute lacks any rational basis lies with the challenger. In the present case, Mallan failed to meet his burden. Mallan's own witnesses would have testified that the harmful effects of marijuana are still controversial and that there are studies supporting both sides of the debate. Thus, Mallan could not sufficiently rebut the presumption of constitutionality and could not satisfy his burden of proving the statute lacks any rational basis. [11]

The dissent, however, takes a much different approach. Instead of according HRS § 712-1249 the degree of deference associated with the rational basis test, the dissent scrutinizes the statute in a manner reminiscent of courts in the early part of this century. Rather than presuming that the statute is rationally related to the public health, safety, or welfare, and rather than placing the burden of proof on Mallan, the dissent applies a rigorous "harm to others" test. Dissent, at 509, 950 P.2d at 247 .

The dissent's approach owes more to the approach taken in cases such as Lochner v. New York, 198 U.S. 45 , 25 S.Ct. 539 , 49 L.Ed. 937 (1905), than to the approach taken by modern courts. In Lochner , the United States Supreme Court invalidated a criminal statute regulating the work hours of bakeries. The Court held, based on the Due Process Clause of the Fourteenth Amendment, that the statute infringed upon liberty to *191 contract and was an improper exercise of the police power. Id. at 53, 58 , 25 S.Ct. at 541, 543 . The Court held:

We think the limit of the police power has been reached and passed in this case. There is, in our judgment, no reasonable foundation for holding this to be necessary or appropriate as a health law to safeguard the public health or the health of the individuals who are following the trade of a baker.

....

We think there can be no fair doubt that the trade of a baker, in and of itself, is not an unhealthy one to that degree which would authorize the legislature to interfere with the right to labor, and with the right of free contract on the part of the individual, either as employer or employ[ee].

....

... We do not believe in the soundness of the views which uphold this law. On the contrary, we think that such a law as this, although passed on the assumed exercise of the police power, and as relating to the public health, or the health of the employ[ee]s named, is not within that power, and is invalid.

Id. at 58-61 , 25 S.Ct. at 543-45 . The close scrutiny of legislation that occurred in the Lochner era was eventually replaced by rational basis review, which applies to social and economic regulation unless a fundamental right is infringed. See Williamson v. Lee Optical of Oklahoma Inc., 348 U.S. 483 , 75 S.Ct. 461 , 99 L.Ed. 563 (1955); West Coast Hotel Co. v. Parrish, 300 U.S. 379 , 57 S.Ct. 578 , 81 L.Ed. 703 (1937). The Court discussed its shift away from the Lochner approach as follows:

There was a time when the Due Process Clause was used by this Court to strike down laws which were thought unreasonable, that is, unwise or incompatible with some particular economic or social philosophy. In this manner the Due Process Clause was used, for example, to nullify laws prescribing maximum hours for work in bakeries, Lochner v. New York, 198 U.S. 45 , 25 S.Ct. 539 , 49 L.Ed. 937 (1905), outlawing "yellow dog" contracts, Coppage v. Kansas, 236 U.S. 1 , 35 S.Ct. 240 , 59 L.Ed. 441 (1915), setting minimum wages for women, Adkins v. Children's Hospital, 261 U.S. 525 , 43 S.Ct. 394 , 67 L.Ed. 785 (1923), and fixing the weight of loaves of bread, Jay Burns Baking Co. v. Bryan, 264 U.S. 504 , 44 S.Ct. 412 , 68 L.Ed. 813 (1924). This intrusion by the judiciary was strongly objected to at the time, particularly by Mr. Justice Holmes and Mr. Justice Brandeis. Dissenting from the Court's invalidating a state statute which regulated the resale price of theatre and other tickets, Mr. Justice Holmes said,

"I think the proper course is to recognize that a state legislature can do whatever it sees fit to do unless it is restrained by some express prohibition in the Constitution of the United States or of the State, and that Courts should be careful not to extend such prohibitions beyond their obvious meaning by reading into them conceptions of public policy that the particular Court may happen to entertain."

And in an earlier case he had emphasized that, "the criterion of constitutionality is not whether we believe the law to be for the public good."

The doctrine that prevailed in Lochner, Coppage, Adkins, Burns, and like cases— that due process authorizes courts to hold laws unconstitutional when they believe the legislature acted unwisely—has long since been discarded. We have returned to the original constitutional proposition that court do not substitute their social and economic beliefs for the judgment of the legislative bodies, who are elected to pass laws.

Ferguson v. Skrupa, 372 U.S. 726, 729-30 , 83 S.Ct. 1028, 1030-31 , 10 L.Ed.2d 93 (1963). In the present case, we applied the rational basis test to HRS § 712-1249. The dissent, however, would apparently discard the strict scrutiny/rational basis dichotomy of modern due process analysis in favor of the Lochner approach.

Most telling is the dissent's reliance on Territory v. Kraft, 33 Haw. 397 (1935). In Kraft , this court invalidated, based on its interpretation of the police power, a criminal statute regulating photographers. See id. at *192 400-01. The court relied on other cases striking down statutes regulating horseshoe businesses, accountants, employment agencies, and insurance contracts. Id. at 401-04 . Kraft , a case decided in the 1930's, was not only based on Lochner era precedents, but also applied the same type of close scrutiny of legislation characteristic of the Lochner approach. The dissent in the present case, in relying on Kraft , appears to advocate a return to this approach.

It is worth remembering that we live under a carefully constructed constitutional system, and each branch of that system has its proper role. It is not within our role to usurp the responsibilities of the legislature. The lesson of the Lochner era was that courts must resist the temptation to encroach upon the domain of democratically elected legislatures. Unless fundamental rights are infringed, due process requires only that legislation survive rational basis review. Principles of due process and/or the police power should not be used as vehicles for importing a particular social philosophy into the Hawai`i Constitution. See Lochner, 198 U.S. at 65-74 , 25 S.Ct. at 547-51 (Harlan, J., dissenting), 74-76, 25 S.Ct. at 546-47 (Holmes, J., dissenting).

For the foregoing reasons, we cannot agree with the dissenting opinion. The dissent's expansive reasoning abandons the careful and incremental development intended by the framers and leads to dangerous and unprecedented results. The right to privacy is not absolute, and there must be reasonable limits placed on activities that test constitutional boundaries. Additionally, the dissent's general methodology presents a significant danger. The dissent appears to advocate reviving a discredited approach that essentially amounted to judicial legislation. Such an approach is inconsistent with the proper role of the courts in our constitutional system. Therefore, we respectfully reject the dissent's reasoning.

IV. CONCLUSION

Accordingly, we conclude that the right to privacy in article I, section 6 of the Hawai`i Constitution does not encompass a right to possess and use marijuana for recreational purposes. [12] Therefore, we affirm the ICA's decision and affirm Mallan's conviction of promoting a detrimental drug in the third degree.

LEVINSON, Justice, dissenting.

I dissent.

The core question presented by this appeal—which appears to escape the plurality and concurring opinions entirely—is whether, as a matter of constitutional law, the police power of the state extends to criminalizing mere possession of marijuana for personal use, [1] as proscribed by Hawai`i Revised Statutes *193 (HRS) § 712-1249 (1993). [2] Over twenty-five years ago, in State v. Kantner, 53 Haw. 327 , 493 P.2d 306 , cert. denied, 409 U.S. 948 , 93 S.Ct. 287 , 34 L.Ed.2d 218 (1972), three justices of this court—a majority— answered the same question, as it pertained to the predecessor statute, with an emphatic and unequivocal "No." For purposes of the question before us, the only constitutionally significant event to occur since Kantner has been the promulgation of article I, section 6 of the Hawai`i Constitution (1978), which has given an express and more expansive local home to the proposition—theretofore residing, for the most part, within the "penumbra" emanating from the federal Bill of Rights— that "[t]he right of the people to privacy is recognized and shall not be infringed without the showing of a compelling state interest."

Because, in my view, article I, section 6 simply reinforces, to the point of definitively validating, the conclusion of the "Kantner trio," I would reverse the opinion of the Intermediate Court of Appeals (ICA), [3] vacate Mallan's judgment of conviction, and remand to the district court for the entry of an order granting Mallan's motion to dismiss.

I. THE METES AND BOUNDS OF THE STATE'S POLICE POWER

A. Underlying Principles

"The term `police power' connotes the time-tested conceptual limit of public encroachment upon private interests." State v. Lee, 51 Haw. 516, 517 , 465 P.2d 573, 575 (1970) (quoting Goldblatt v. Hempstead, 369 U.S. 590, 594 , 82 S.Ct. 987, 990 , 8 L.Ed.2d 130 (1962)). "It is often said that the police power is one of the least limitable of governmental powers. It is inherent in the sovereign, and all rights are possessed subject to it. Of course, the police power of the State is not absolute, but is subject to constitutional limitations." W.H. Greenwell, Ltd. v. Department of Land and Natural Resources, 50 Haw. 207, 209 , 436 P.2d 527, 528-29 (1968) (citations omitted).

*194 Perhaps this court's earliest attempt to delineate the boundaries of the sovereign police power appears in Territory v. Kraft, 33 Haw. 397 (1935). The defendant in Kraft had deigned to sell, for thirty-five cents a copy, photographs that he had taken of a group including Franklin D. Roosevelt, President of the United States, and Joseph B. Poindexter, Governor of the Territory of Hawaii. The defendant was subsequently charged and convicted under a criminal statute—Act 103—that prohibited a person from "practicing or holding [himself] out as competent to practice photography for profit" without having "passed an examination and received an official certificate." Id. at 408 .

This court reversed the defendant's conviction and struck down the statute as "an unconstitutional encroachment upon the liberty of the citizen to choose and pursue an innocent occupation." Id. at 408 . In doing so, the Kraft court described the contours of the police power in the following fashion:

The primary question ... presented by the appeal is whether by the passage of Act 103 the legislature exceeded the powers conferred upon it. More specifically the question is, Was it within the constitutional power of the legislature to exclude from the practice of photography for profit all persons who had not complied with the provisions of the Act? The answer to this inquiry depends on the nature of photography—whether as an occupation it is innocent and innocuous or whether it is infected with some quality that might render it dangerous to the morals, the health, the comfort[,] or the welfare of those who constitute the public. If the latter is true[,] it is within the police power of the legislature to place upon it the regulations and restrictions contained in the Act. If[,] on the other hand[,] the practice of photography is harmless and without detriment to the public welfare [,] it was beyond the power of the legislature to restrict it to those having a certificate of proficiency.

... The police power is limited to enactments which have reference to the public health or comfort, or to the safety or welfare of society....

....

It is unquestionably true that the police power of the State has an ever-widening horizon. It is nevertheless not boundless[,] and its exercise is still under the control of certain classic principles of constitutional law. It cannot infringe upon the guaranteed right of the citizen to life, liberty[,] or property and the pursuit of happiness unless[,] in the exercise of this right[,] the public health, safety[,] or welfare is imperiled. ...

... Happily for all, the fundamental guaranties of the Constitution cannot be freely submerged if and whenever some ostensible justification is advanced and the police power invoked .... The liberty mentioned in [the fourteenth amendment to the United States Constitution] means not only the right of the citizen to be free from the mere physical restraint of his person, as by incarceration, but the term is deemed to embrace the right of the citizen to be free in the enjoyment of all his faculties; to be free to use them in all lawful ways; [and] to pursue any livelihood or avocation .... [T]he police power of the State is not unlimited, and is subject to judicial review, and[,] when exerted in an arbitrary or oppressive manner[,] such laws may be annulled as violative of rights protected by the Constitution. ... The mere fact that a court may differ with the legislature in its views of public policy, or that judges may hold views inconsistent with the propriety of the legislation in question, affords no ground for judicial interference, unless the act in question is unmistakably and palpably in excess of legislative power....

....

So long as the police power is confined to its legitimate purpose and is not through some fallacy of logic given a specious recognition[,] it is of inestimable value; otherwise[,] there is danger of its becoming an evil. There is as great peril to the public in its injudicious extension as in its injudicious restriction. In other words, as a servant of the people it is invaluable[,] but as their master it might become intolerable.

*195 Id. at 400-06 (citations and internal quotation marks omitted) (emphases added). See also State v. Shigematsu, 52 Haw. 604, 607 , 483 P.2d 997, 999 (1971) (citing Kraft with approval for the proposition that "in the exercise of its police power the State may curtail or restrict acts of individuals unless the curtailments or restrictions unreasonably infringe upon the fundamental personal rights of individuals" (emphasis added)); cf. Lee, 51 Haw. at 517 , 465 P.2d at 575 (" `To justify the state in [thus] interposing its authority in behalf of the public, it must appear, first, that the interests of the public [generally, as distinguished from those of a particular class] require such interference; and, second, that the means are reasonably necessary for the accomplishment of the purpose and not unduly oppressive upon individuals.'" (Quoting Goldblatt, 369 U.S. at 594 , 82 S.Ct. at 990 (quoting Lawton v. Steele, 152 U.S. 133, 137 , 14 S.Ct. 499, 501 , 38 L.Ed. 385 (1894)).)) (Brackets in original.).

Thus, the Kraft analysis (which is as authoritative today as it was over sixty-two years ago) instructs that the prerogative of the state to criminalize conduct through the exercise of the police power, while having an "ever-widening horizon," is nevertheless constrained, by its very nature and without more, by "certain classic principles of constitutional law," including the following: (1) it may not proscribe conduct that is merely "innocent," "innocuous," or "harmless"; (2) its reach is limited to the proscription of conduct that imperils "the public health, safety[,] or welfare"; and (3) it may not be "exerted in an arbitrary ... manner[.]"

Implicit in the Kraft analysis is an acceptance of the centrality of the prevention of "harm to others" as a prerequisite objective of the state's invocation of the police power to criminalize conduct. In this respect, Kraft echoes the core thesis of the political philosopher John Stuart Mill's seminal tract:

... [T]he only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinion of others, to do so would be wise, or even right. These are good reasons for remonstrating with him, or reasoning with him, or persuading him, or entreating him, but not for compelling him, or visiting him with any evil in case he do otherwise. To justify that, the conduct from which it is desired to deter him, must be calculated to produce evil to some one else. The only part of the conduct of any one, for which he is amenable to society, is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign.

....

... The acts of an individual may be hurtful to others, or wanting in due consideration for their welfare, without going the length of violating any of their constituted rights. The offender may then be justly punished by opinion, though not by law. As soon as any part of a person's conduct affects prejudicially the interests of others, society has jurisdiction over it, and the question whether the general welfare will or will not be promoted by interfering with it, becomes open to discussion. But there is no room for entertaining any such question when a person's conduct affects the interests of no persons besides himself, or needs not affect them unless they like (all the persons concerned being of full age, and the ordinary amount of understanding.)...

....

... When, by conduct ..., a person is led to violate a distinct and assignable obligation to any other person or persons, the case is taken out of the self-regarding class, and becomes amenable to moral disapprobation in the proper sense of the term .... In like manner, when a person disables himself, by conduct purely selfregarding, from the performance of some definite duty incumbent on him to the public, he is guilty of a social offence. No person ought to be punished simply for being drunk; but a soldier or a policeman *196 should be punished for being drunk on duty. [4] Whenever, in short, there is definite damage, or a definite risk of damage, either to an[other] individual or to the public, the case is taken out of the province of liberty, and placed in that of ... law. [5]

But with regard to the merely contingent, or, as it may be called, constructive injury which a person causes to society, by conduct which neither violates any specific duty to the public[ ] nor occasions perceptible hurt to any assignable individual except himself[,] the inconvenience is one which society can afford to bear, for the sake of the greater good of human freedom ....

John Stuart Mill, On Liberty 22, 135, 145-47 (The Legal Classics Library 1992) (1859) (emphases added).

In his exhaustive and definitive four-volume treatise, The Moral Limits of the Criminal Law, [6] Professor Feinberg refines the Millian "harm to others" principle (embedded in the Kraft analysis) as follows:

... [I]t is legitimate for the state to prohibit conduct that causes serious private harm, or the unreasonable risk of such harm, or harm to important public institutions or practices. In short, state interference with a citizen's behavior tends to be morally justified when it is reasonably necessary (that is, when there are reasonable grounds for taking it to be necessary as well as effective) to prevent harm or the unreasonable risk of harm to parties other than the person interfered with.... This principle ... can be called "the harm to others principle" or "the harm principle" for short....

... Clearly not every kind of act that causes harm to others can rightly be prohibited, but only those that cause avoidable and substantial harm. Since the effect of legal coercion may itself be harmful to the interests of the actor it restrains, one would think that only the prevention of still more serious harms to others could justify its infliction.... So the harm principle *197 must be made sufficiently precise to permit the formulation of a criterion of "seriousness," and also, if possible, some way of grading types of harms in terms of their seriousness. Without these further specifications, the harm principle may be taken to invite state interference without limit, for virtually every kind of human conduct can affect the interests of others for better and worse to some degree, and thus would properly be the state's business.

....

... Since an invasion of the interest in liberty is a harm, it follows that all legal prohibitions, insofar as they narrow options, cause some harm which must be taken into account in the calculations of the legislator. The legislative invasion of citizens' interests in liberty can be justified by the harm principle only if necessary to prevent the greater harm still that would be caused to victims of the proscribed conduct. But the interest in liberty plays a relevant role in these calculations only to the extent that it would actually be invaded by the contemplated legislative action....

Joel Feinberg, Harm to Others 11-12, 217 (Oxford Univ. Press 1984) (emphases in original).

The bottom line of my discussion of the Kraft analysis is the inescapable conclusion that, wholly separate and apart from any consideration of the constitutional right to privacy, the "harm to others" principle is a long-established circumscription that limits the exercise of the state's police power in Hawai`i for the purpose of criminalizing conduct.

B. State v. Lee, "Direct" Harm To Others As The "Default Mode" Regarding The Limits Of The Police Power, And The Putative Constitutional "Right To Be Let Alone"

1. The "Lee majority"

Roughly thirty-five years after Kraft , in State v. Lee, supra , [7] a split but benchmark decision, this court not only significantly amplified its existing "police power" jurisprudence, but also laid the groundwork—without ever using the term—for the future emergence of an expressly recognized constitutional right to privacy. Lee had been convicted of violating HRS § 286-81(1)(A) (1968), which, inter alia, mandated that the operator of a motorcycle wear a safety helmet. [8] Lee then appealed from the judgment sustaining the constitutionality of the statute.

On appeal, Lee argued

that the first precondition ... to the exercise of the police power by the legislature..., namely, [that] "it must appear, first, that the interests of the public generally, as distinguished from those of a particular class, require such interference[,]" ha[d] not been met. He contend[ed] that other members of the public at large [we]re not affected in a deleterious manner, if indeed at all, by the conduct regulated by this statute; that the only realistic effect of the statute [wa]s to compel motorcyclists to take precautionary measures so that they [would] not harm themselves; [and] that harm to self or harm to a particular class *198 is not within the public interest and is outside the scope of the police power to legislate in the public interest.

Lee, 51 Haw. at 517 , 465 P.2d at 575 . By contrast, the prosecution maintained

that decreasing fatalities and injuries from motorcycle accidents does impinge directly on the public interest in three respects: (1) economic impact: (a) lessens [the] burden on public agencies such as hospitals, medical[,] and ambulance facilities; (b) reduces addition to the public assistance roles [sic] of disabled motorcyclists and their dependents or survivors; (2) "flying missile theory": loose stones on the highway or fallen objects may strike the motorcyclist on the head, thus causing him to lose control and become a menace to other vehicles on the highway; (3) the increase in fatalities and serious injuries is so alarming, so widespread[,] and of such grave dimension that it threatens the very fabric of society.

Id. at 517-18 , 465 P.2d at 575 (emphases added).

The Lee majority took notice of the legislature's expressly stated purpose in first enacting HRS § 286-81:

Deaths of persons and injuries to them and damage to property with the other losses suffered on account of highway traffic accidents are of grave concern to the State and its citizens as well as to the federal government. The legislature finds and declares that it is in the public interest that the State initiate, coordinate[,] and accelerate every available means to decrease the fatalities, injuries, damages[,] and losses resulting from highway traffic accidents.

Id. at 518, 465 P.2d at 575 (quoting 1967 Haw. Sess. L. Act 214, § 1 at 257). Armed with this legislative history, the Lee majority declared that,

where the legislature has clearly stated its purpose, we are reluctant to attribute other purposes, unless the facts underlying such other purposes are clearly and convincingly shown. In this case the legislature has not alluded to either "economic impact" or the "flying missile theory", there was no evidence introduced by the [prosecution] to substantiate either argument, and the claimed facts are not susceptible to judicial notice.

Id. at 518-19, 465 P.2d at 575 . Consequently, the Lee majority regarded itself as being

squarely faced with the issue whether the legislature may constitutionally regulate the conduct of an individual so as to require him to protect himself from physical injury and[/]or death; that is, whether physical harm to self is a proper subject of public interest and thus subject to the police power of the legislature.

Id. at 519, 465 P.2d at 575-76 (emphasis added). In the Lee majority's view, the issue before it went "to the very heart of the nexus between the individual and the state: where does the public interest begin?" Id. at 519, 465 P.2d at 576 .

Having thus framed the issue, and taking judicial notice of (1) the "National Uniform Standards for State Highway Safety Programs," H.R. Doc. No. 138, 90th Cong., 1st Sess. (1967), which "set up the motorcycle safety helmet as a minimum standard to which state highway safety programs must conform," (2) certain published statistics of the New York Department of Motor Vehicles, and (3) data promulgated by the Michigan State Police, id. at 519-20 , 465 P.2d at 576 , the Lee majority engaged in the following analysis:

In our opinion[,] these statistics fairly show that motorcycle accidents are significantly more dangerous than motor vehicle accidents; that there is an enormous increase in motorcycle registrations; [and] that there is a corresponding enormous increase in the number of deaths and injuries due to motorcycle accidents. The question is whether the accelerating rate of deaths and injuries due to motorcycle accidents[,] coupled with the increase in motorcycle registrations[,] has reached such proportions and the class of motorcycle users has become so large and widespread that the continued viability of our society requires that they protect themselves from physical injury or death —in short, is the public interest generally affected?

We hold that it is.

*199 We wish to make it clear that this holding is limited to this case. We start from the proposition that where an individual's conduct, or a class of individuals' conduct, does not directly harm others[,] the public interest is not affected and is not properly the subject of the police power of the legislature. However, where the legislature has determined that the conduct of a particular class of people recklessly affects their physical well-being and that the consequent physical injury and death is so widespread as to be of grave concern to the public[,] and where the incidence and severity of the physical harm has been statistically demonstrated to the satisfaction of the court, then the conduct of that class of people affects the public interest and is properly within the scope of the police power. Of course, where the conduct sought to be regulated is in furtherance of a specific constitutional right, a different situation arises.

....

We hold that HRS § 286-81(1)(A) and the regulations promulgated pursuant to it are within the proper exercise of police power.

Id. at 521-22, 465 P.2d at 576-77 (emphases added). [9]

*200 How, then, did the analysis of the Lee majority augment this court's assessment of the scope of the state's police power to criminalize conduct, as articulated earlier in Kraft? First, it is of critical significance that the majority opinion in Lee in no way diverged from any of the core tenets of the Kraft analysis. See supra section I.A.

Second, the Lee majority not only pledged continued allegiance to the "harm to others" principle, but also tightened it further. Specifically, in order for the "public interest" ( i.e., the public health, safety, and welfare) to be "generally affected," the Lee majority highlighted that the conduct of an individual—or a class of individuals—must "directly harm others" (emphasis added); if it does not, then "the public interest is not affected and [it] is not properly the subject of the police power of the legislature."

Thus, third, the Lee majority clarified that individual conduct, which entailed the foreseeable and likely risk of "physical harm" to the actor and no one else, could generally affect "the public interest" and therefore be "properly within the scope of the police power" only if the following conditions were satisfied: (a) the legislature "determined that the conduct of a particular class of people recklessly affect[ed] their physical well-being"; (b) there was (i) "consequent physical injury and death" (ii) that was "so widespread as to be of grave concern to the public"; and (c) "the incidence and severity of the physical harm has been statistically demonstrated to the satisfaction of the court."

Fourth, however, the Lee majority imposed a significant caveat on the foregoing clarification: "where the conduct sought to be regulated is in furtherance of a specific constitutional right, a different situation arises." I suggest that this can only mean that the exercise of the police power in order to criminalize conduct that furthers an enumerated, fundamental constitutional right is subject to more rigorous constitutional scrutiny than that employed by the Lee majority. [10]

2. Justice Abe's dissent and the "right to be left alone"

Dissenting in Lee, Justice Abe introduced the construct of "the right to be let alone" into this court's analytical conversation, thereby firing the functional equivalent of "the shot heard `round the state," the reverberations of which would ultimately transfigure the scope of liberty afforded by the Hawai`i Constitution. Because "the right to be let alone" is itself the cornerstone of a jurisprudential "unified field theory" (to mix the foregoing metaphor), it is useful to set out Justice Abe's position at some length:

As stated by the majority of the court, the issue of this case is whether the legislature may constitutionally regulate the conduct of a person for his own safety. I disagree with the majority opinion and I would hold the provision ... requiring [Lee], a motorcyclist, to wear a helmet for his own safety unconstitutional.

....

I agree with the majority that the safety helmet requirement is aimed at preventing a further increase in the toll highway accidents have taken of the state's citizens based on the legislative finding that highway travel presents a special hazard for motorcyclists. However, no matter how beneficent or humane the purpose of the statute, it cannot be upheld unless it is a legitimate exercise of its police power for the public order, safety, health, morals[,] or welfare.

I believe our State Constitution specifically recognizes one's right to be let alone. Article I, § 2 provides:

"All persons are free by nature and are equal in their inherent and inalienable *201 rights. Among these rights are the enjoyment of life, liberty and the pursuit of happiness, and the acquiring and possession of property. These rights cannot endure unless the people recognize their corresponding obligations and responsibilities."

There is no question that an individual has a fundamental constitutional right to be let alone—liberty to do as he pleases— but, of course, subject to reasonable restriction under the police power.

Here, one's right to be let alone on a public highway is being infringed in that a motorcyclist is required to wear a safety helmet on pain of criminal punishment for his failure to do so. I believe that the statute in question should not be upheld as a reasonable exercise of police power[,] although the purpose is laudable[,] because the act is essentially a personal safety measure.

. . . .

It appears that the majority, in upholding the constitutionality of the statute, is adopting the concept that an individual's liberty—the right to be let alone—may be abridged or infringed by legislative act which may be deemed for the "best interest" of that individual. I believe this principle or concept that a state may determine what is in one of its citizen's "best interest" and may compel him to follow that course of action under pain of criminal punishment[] unreasonably infringes upon one's fundamental liberty. My opinion is that a state may only legislate where the "general welfare" is affected, that is, where others are harmed or likely to be harmed.

I believe the right of liberty—the right to be let alone—gives one the right to determine for himself what is for his "best interest[.]" ...

Now, the majority having upheld the statute, it would appear that our legislature[,] along the same reasoning[,] could require drivers and passengers in motor vehicles to wear seat belts and shoulder straps, under pain of criminal punishment for their failure to do so. Also, it could require individuals who may use public streets and highways at nights to wear certain clothing manufactured from materials having reflectory characteristics for their personal safety.

Then why can't the legislature enact criminal legislation prohibiting the smoking of cigarettes or other tobacco products, or restricting or regulating foods to be consumed, for example, non-fattening food products to prevent obesity?

Are we ready to forfeit our individual liberty to a point where legislative discretion is to be the only bar to the determination as to what one may or may not do under the definition of "best interest"?

I submit that[,] once a step is taken that the protection of an individual from himself is within the legitimate exercise of the police power, there is no limit to this power[,] and a state can entirely regulate one's life and his way of living.

As I have stated, the statute is beneficent and humane, without doubt, and even eminently sensible and wise; nonetheless, I believe it is unconstitutional because it attempts to infringe upon and stifle fundamental personal liberties for one's own safety and is not concerned with the preservation of public order, safety, health, and morals, or for the public welfare.

... [T]he fact[, in and of itself,] that the general public considers it foolhardy to ride a motorcycle without a safety helmet... should not be used as a criterion for defining the non-use of a helmet a criminal offense.

As stated by Justice Barham in his dissent in Everhardt v. City of New Orleans, 253 La. 285, 300 , 217 So.2d 400, 405 (1968):

"Although laws have been validly enacted to protect the legally incompetent from their own acts, some of the persons who disregard the most elementary forms of self-preservation are, unfortunately, not legal incompetents, but only fools; and

`... a fool must follow his natural bent `(Even as you and I!)'" [11]

*202 Lee, 51 Haw. at 524-28 , 465 P.2d at 578-80 (Abe, J., dissenting) (emphases added) (some ellipsis points in original and some added).

I suggest that the "Abe thesis" can be distilled into the following propositions: (1) the "inherent and inalienable right" of "liberty" is given express constitutional recognition, see article I, section 2 of the Hawai`i Constitution; (2) liberty, insofar as it empowers an individual "to do as he [or she] pleases," see supra note 4, is synonymous with the "right to be let alone"; (3) the right to be let alone "gives one the right to determine for himself [or herself] what is for his [or her] `best interest'"; (4) the right to be let alone is "subject to reasonable restriction under the police power"; (5) the police power of the state can only be exercised for the preservation of public order, safety, health, morals, or welfare, i.e., for the "general welfare," which is affected "where others are harmed or likely to be harmed"; (6) the "concept that a state may determine what is in one of its citizen's `best interest' and may compel him [or her] to follow that course of action under pain of criminal punishment[ ] unreasonably infringes upon [the citizen's] fundamental liberty" because the state may enact criminal legislation only "where the `general welfare' is affected"; (7) accordingly, legislative enactments intended to compel purely personal safety, health, morals, or welfare, under pain of criminal punishment, constitute unreasonable exercises of the state's police power; and (8) such legislative enactments are therefore unconstitutional.

As the foregoing illustrates, the "Abe thesis" superimposes a limiting gloss on the Lee majority's analysis of the scope of the state's police power to criminalize conduct. But, as will shortly become apparent, the "Abe thesis" also profoundly affected this court's first foray into the constitutionality of the state's marijuana laws, as well as the subsequent conceptualization and adoption of an express state constitutional "right to privacy."

C. State v. Kantner , The First Glimmer Of A State Constitutional Right To Privacy, The State's Police Power, The Post-Kantner Marijuana Cases, "Reality Control," And A Strong Dose Of Nepenthe [12]

1. State v. Kantner , The Abe Thesis Revisited, And The Pre-1978 State Constitutional Right To Privacy

This court's first foray into the constitutionality of the state's marijuana laws occurred in two consolidated appeals, ultimately reported in a landmark package of opinions as State v. Kantner, supra, 53 Haw. 327 , 493 P.2d 306 , cert. denied, 409 U.S. 948 , 93 S.Ct. 287 , 34 L.Ed.2d 218 (1972). The Kantner appellants had been convicted of violating HRS § 329-5 (Supp. 1969)—a statute preceding the current statutory scheme entitled "Offenses related to drugs and intoxicating compounds," set forth in HRS ch. 712, part IV, of which HRS § 712-1249 is a component—, which provided in relevant part:

Additional acts prohibited; penalty. No person shall knowingly ... possess ... any narcotic drug as defined by section 329-1 except as provided in this chapter. Any person found guilty of ... the foregoing act[ ] shall be imprisoned at hard labor *203 not more than five years for the first offense and imprisoned at hard labor not more than ten years for any subsequent offense; provided that, every person who possesses any marijuana, except as otherwise provided by law, shall be punished by imprisonment for not more than one year, or for not less than one year nor more than five years.

(Emphasis added.) HRS § 329-1, in turn, defined "narcotic drug" to include "[m]arihuana." As indicated in the plurality opinion announcing this court's judgment, "[t]he sole issue presented [was] the constitutionality of the statutory scheme for the control of the possession of marihuana." Kantner, 53 Haw. at 328 , 493 P.2d at 307 .

Kantner is remarkable for having generated four separate opinions. Chief Justice Richardson's plurality opinion, in which Justice Marumoto joined, announced the judgment of the court affirming the Kantner appellants' convictions. Justice Abe concurred separately in the judgment, thereby creating the majority favoring affirmance. Justices Levinson and Kobayashi each filed a dissenting opinion. Because the Kantner quaternary reveals the conceptual perspective of every member of the court regarding the constitutional permissibility of criminalizing the mere possession of marijuana, it serves as a window into this court's collective mind at the time the issue was first raised. For that reason, it is important to examine each perspective in some detail.

The Richardson/Marumoto plurality opinion began its analysis by asserting that the "[a]ppellants concede that the State may properly regulate the possession of marijuana under the police power." Id. [13] The Kantner appellants' alleged concession thus permitted the Richardson/Marumoto plurality to avoid reaching the very issue that is before us in the present matter. The plurality then characterized the "thrust" of the Kantner appellants' argument as being that "that the State ha[d] so unreasonably and irrationally exercised its police power that the present statutory scheme for the prohibition of possession of marihuana violate[d] the constitutional guarantees of equal protection and due process of law," inasmuch as "[u]ncontroverted evidence showed that in some respects marihuana was unlike the opiates and other drugs within the scientific definition of the word `narcotic'." Id. at 328-29 , 493 P.2d at 307-08 (emphasis added). The Richardson/Marumoto plurality opinion dispatched the Kantner appellants' position with the following orthodox equal protection/due process analysis:

Proceeding from the proposition that marihuana is not a narcotic scientifically defined, appellants contend that the defining of the term narcotic so as to include marihuana and the inclusion of marihuana within the same class as the more harmful narcotic drugs is so unreasonable and arbitrary as to violate the constitutional guarantees of equal protection and due process of law.

The legislature has a broad power to define terms for a particular legislative purpose, and the courts, as a general rule of construction, are bound to follow legislative definitions of terms rather than commonly accepted dictionary, judicial or scientific definitions. We think the requirements of due process place some limitations on the manner in which a legislature may use words. If we believed that the use of the word narcotic to include marihuana were so misleading as to confuse legislators in their law-making activities or to confuse persons of common understanding in their effort to determine whether the possession of marihuana constitutes a crime, it would clearly be our duty to declare the unconstitutionality of the statute. [14] Inasmuch as the word *204 "narcotic" in popular usage includes marihuana, it is no violation of the guarantee of due process of law for the legislature to employ such usage over the more precise usage favored by the scientific community.

We think that appellants' contentions concerning the legislative classification of marihuana are untenable. Appellants contend that the legislature has placed the offenses of possession of marihuana and the possession of narcotics, scientifically defined, within the same legislative classification. We disagree; the legislature has provided for markedly different penalties for possession of marihuana as opposed to narcotics, scientifically defined .... Appellants' main contention concerning classification is the argument that the properties of the drugs alcohol and marihuana are so similar that a provision for a penalty for the possession of marihuana in a case where there is none made for possession of alcohol violates the constitutional guarantee of the equal protection of the laws. The issue then is not whether marihuana is more like alcohol than heroin but whether there are sufficient dissimilarities between alcohol and marihuana to support different legislative treatments. We think alcohol and marihuana are sufficiently dissimilar to justify dissimilar legislative treatment. Alcohol is a drug about which much is known concerning the long-term effect on the human body; of marihuana, much less is known. On that basis alone, treatment dissimilar to that given alcohol is justified, at least until scientific research conclusively establishes the long-term effects of the drug marihuana. Since it is presumed that statutes are constitutional, [15] and since the party attacking the statute must show with convincing clarity that the statute is unconstitutional, the absence of sound scientific data concerning the long-term effects of marihuana renders appellants' burden insurmountable.

....

With respect to appellants' argument that the use of marihuana involves an issue of "fundamental liberty" and, hence, a different standard of review should be applied to the statute, we do not think that appellants have established that the interest of the individual in possessing and using marihuana is within the class of interests to which the state and federal constitutions accord the highest degree of protection." [16] ... We doubt ... that use of a mind-altering drug, absent an intimate connection with a "preferred freedom", requires the standard of review which appellants suggest. Our reading of Griswold v. Connecticut, 381 U.S. 479 , 85 *205 S.Ct. 1678, 14 L.Ed.2d 510 (1965)[,] leads us to conclude ... that there is no fundamental guarantee protecting the use and possession of euphoric drugs. ... As we read Griswold, supra, the test of whether an activity may be considered to rest under the "penumbra" of a preferred freedom is that the activity in question must be essential, not merely desirable, for the exercise of the specifically enumerated rights.

Affirmed.

Id. at 329-34, 493 P.2d at 308-10 (citations and footnotes omitted) (emphases added).

Accordingly, by casting the Kantner appellants' argument as a due process/equal protection attack on the reasonableness and rationality of the state's disparate treatment of alcohol and marijuana under its police power to criminalize conduct, the Richardson/Marumoto analysis was able to take the following form: (1) it was unnecessary to consider whether the state's police power extended to the criminalization of the mere possession of marijuana for personal consumption because the Kantner appellants had allegedly conceded arguendo that the state possessed such power; (2) HRS § 329-5 was not so "misleading" as to "confuse" the average person regarding its scope and therefore did not deprive the Kantner appellants of due process of law; and (3) with respect to the Kantner appellants' equal protection claim, (a) the use of marijuana did not implicate a "fundamental liberty," which would necessitate subjecting HRS § 329-5 to strict scrutiny review, because the "use of a mind-altering drug," not being "essential"—as opposed to merely "desirable"—to the exercise of a "specifically enumerated" constitutional right, did not "rest under the `penumbra' of a preferred freedom" ( i.e., was not ancillary to the exercise of an expressly enumerated fundamental constitutional right), (b) HRS § 329-5 was therefore presumed to be constitutional, (c) the Kantner appellants failed to overcome the "insurmountable" burden of overcoming the presumption—alcohol being "a drug about which much is known" and marijuana a drug about which "much less is known"—by virtue of their inability to prove that there were "sufficient dissimilarities between alcohol and marijuana to support different legislative treatments," and (d) therefore, alcohol and marijuana were, in fact, "sufficiently dissimilar to justify dissimilar legislative treatment." [17]

Concurring separately in Kantner , Justice Abe took a very different tack:

It is conceded by the appellants that the regulation of the use of marijuana is a reasonable and legitimate exercise of the police power of the State. However, they contend that the inclusion of marijuana in the narcotic drug statute, HRS Ch. 329, is unreasonable and violates the Due Process Clauses of the United States Constitution and the Hawaii State Constitution. The appellants presented this question as the sole issue on appeal.

....

I believe that the more interesting and pertinent issue raised by the Due Process and Equal Protection Clauses is not whether marijuana is a "narcotic," but whether marijuana is, like narcotics, sufficiently harmful to the general welfare that the possession of marijuana may be prohibited in the same way possession of the narcotics is prohibited. However, the only argument made by the appellants is that marijuana is not technically a "narcotic," and cannot be included in a statutory scheme with true narcotics. Thus, it is unnecessary to reach other issues raised by the Equal Protection Clause and the Due Process Clause. However, inasmuch as other justices today have reached some of those issues, I will briefly outline my thoughts.

....

I do not agree with Chief Justice Richardson that one does not enjoy the fundamental constitutional right to smoke marijuana. I stated in the dissent in State v. *206 Lee, 51 Haw. 516 , 465 P.2d 573 (1970), that I believed that under Art. I, Sec. 2 of the Hawaii State Constitution one has a fundamental right of liberty to make a fool of himself as long as his act does not endanger others, and that the state may regulate the conduct of a person under pain of criminal punishment only when his actions affect the general welfare—that is, where others are harmed or likely to be harmed. Thus, I believe that the right to the "enjoyment of life, liberty and the pursuit of happiness" includes smoking of marijuana, and one's right to smoke marijuana may not be prohibited or curtailed unless such smoking affects the general welfare.

... Truthfully, I cannot say whether those who claim that the use of marijuana is harmful are correct or those who take the opposite view are correct.

....

Of course, in my opinion, the finding that marijuana is harmful to the user does not authorize the State under its police power to prohibit its use under threat of punishment. Under the doctrine I stated in the dissent in [ Lee ], the State must prove that the use of marijuana is not only harmful to the user but also to the general public before it can prohibit its use. However, the appellants have conceded both in the trial court and on appeal that the State may regulate the use of marijuana under its police power. Thus, under the record of this case the State was not required to prove this point. It would be unreasonable for this court therefore to hold that, in spite of this concession in the proceedings, the State should have met its burden of proof on this point.

Therefore, under the record of this case, I am compelled to affirm the judgment of the trial court.

Kantner, 53 Haw. at 334, 336-39 , 493 P.2d at 311-13 (Abe, J., dissenting) (footnote omitted) (emphases added).

It is apparent from the foregoing analysis that the "Abe thesis," first articulated in Lee, was imported directly into the concurring opinion in Kantner . Thus, Justice Abe clearly expressed his position that, by virtue of the fundamental right to "the enjoyment of life, liberty and the pursuit of happiness" enshrined in article I, section 2 of the Hawai`i Constitution, "one does ... enjoy the fundamental constitutional right to smoke marijuana," whether or not such conduct is harmful to the user, because "the state may regulate the conduct of a person under pain of criminal punishment only when his actions affect the general welfare—that is, where others are harmed or likely to be harmed." Smoking marijuana being protected by the fundamental constitutional right of "liberty," the burden lay on the state to "prove that the use of marijuana is not only harmful to the user[,] but also to the general public before it can prohibit its use." However, because— and only because—the Kantner appellants allegedly "conceded both in the trial court and on appeal that the State may regulate the use of marijuana under its police power," Justice Abe deemed it "unreasonable," under the circumstances, to penalize the state for failing to "have met its burden of proof on this point."

Two key points, diametrically opposed to the view expressed in the Richardson/Marumoto plurality, are implicit in Justice Abe's Kantner analysis. First, insofar as smoking marijuana was protected by a fundamental constitutional right—the right of "liberty"—, HRS § 329-5 was neither presumed to be constitutional nor subject to mere "rational basis" review. See infra section II.A.1. That being the case, second, the statute was presumptively unconstitutional and subject to a kind of "strict scrutiny" review, the state bearing the burden of proving that the police power extended to the criminalization of marijuana possession on the basis that consumption of the drug was not only harmful to the user, but also to the general public. See id.

Justice Levinson, who was a member of the Lee majority and would in Cotton, see supra note 8, soon craft the "significant-secondary-harms-to-society" exception to the "harm to others" principle, filed a dissenting opinion in Kantner . [18] He would have held *207 HRS § 329-5 to be unconstitutional as an impermissible infringement of the fundamental constitutional rights of "personal autonomy" [19] and privacy. He also challenged the notion that the appellants had waived the question of the constitutional limits of the state's authority to criminalize particular conduct pursuant to the police power. Thus, Justice Levinson would have reversed their convictions. Because it presaged the later codification of the express fundamental right to privacy in article I, section 6 of the Hawai`i Constitution (1978), I quote Justice Levinson's opinion at length:

The crucial issue in this case is whether a person has a constitutionally protected right purposely to induce in himself, in private, a mild hallucinatory mental condition through the use of marihuana. I believe that there is such a right and that it is founded upon the constitutional rights to personal autonomy and privacy, guaranteed by article I, sections 2 and 5 [20] of the Hawaii Constitution as well as by the due process clause of the fourteenth amendment of the Federal Constitution. I believe that HRS § 329-5 (Supp.1971) violates both constitutions because it unreasonably infringes upon these rights and, therefore, I would reverse.

....

In our system of law[,] the personal autonomy and privacy of individuals is afforded the highest consideration. The very concept of limited government evinces *208 a desire to free persons from the unbounded control of the State, in order that they may most productively pursue their own life goals. Perhaps the best articulation of the values inherent in American constitutional law was given by Mr. Justice Brandeis in his now famous dissenting opinion in Olmstead v. United States, 277 U.S. 438, 478 , 48 S.Ct. 564, 572 , 72 L.Ed. 944 (1928), quoted with approval in Stanley v. Georgia, 394 U.S. 557, 564 , 89 S.Ct. 1243, 1247 , 22 L.Ed.2d 542 (1969):

The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man's spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure, and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone —the most comprehensive of rights and the right most valued by civilized men. ([E]mphasis added[.])

This right to personal autonomy lies at the heart of our system of government. Some of its component ideas find expression in the constitutional guarantees of free speech, press, assembly, religion and freedom from unreasonable searches and seizures. These guarantees uphold the dignity of the individual and protect his right to develop in accordance with the inward forces which make him a unique human being. As important as these enumerated rights are, however, it would be grave error to hold that they exhaust the limits on the power of government to invade the individual's right to freedom of thought and action. The framers of the United States Constitution recognized that individual freedom is not susceptible to full definition by verbal enunciation and thus warned in the ninth amendment:

The enumeration in the Constitution[ ] of certain rights, shall not be construed to deny or disparage others retained by the people.

Mr. Justice Goldberg[,] in his concurring opinion in Griswold v. Connecticut, 381 U.S. 479, 494 , 85 S.Ct. 1678, 1687 , 14 L.Ed.2d 510 (1965), expressed the belief that this amendment afforded proof that due process of law encompasses a fundamental personal right of privacy. Accord State v. Abellano, 50 Haw. 384, 386 , 441 P.2d 333, 335 (1968) (concurring opinion of Levinson, J.). In Hawaii[,] there can now be no doubt that the right of privacy exists as a basic safeguard of individual liberty since it has been given substantive expression in article I, section 5 of the State Constitution.

This constitutional right to privacy encompasses more than just freedom from government surveillance. It guarantees to the individual the full measure of control over his own personality consistent with the security of himself and others. This freedom to choose one's own plan of life is essential to the pursuit of happiness and the enjoyment of life and thus finds additional protection in article I, section 2 of the Hawaii Constitution. See State v. Shigematsu, 52 Haw. 604, 610 , 483 P.2d 997, 1000 (1971). In the instant case, the State's infringement upon this right of personal autonomy becomes apparent when one understands the nature of marihuana and the reasons for its use.

It is now universally recognized by modern authorities on the subject that marihuana is not a drug of addiction; that is, unlike narcotic drugs, marihuana does not produce physical dependence in the user which compells [sic] its continued use. The individual who uses marihuana does so from choice, [21] in the pursuit of various *209 goals which may include the relief from tension, the heightening of perceptions, and the desire for personal and spiritual insights. In short, marihuana produces experiences affecting the thoughts, emotions and sensations of the user. These experiences being mental in nature are thus among the most personal and private experiences possible. For this reason[,] I believe that the right to be let alone protects the individual in private conduct which is designed to affect these areas of his personality, so long as such conduct does not produce detrimental results.

This principle that the State's power to restrain private conduct is limited by the need to show social injury was recognized by this court in State v. Lee, 51 Haw. 516, 521 , 465 P.2d 573, 577 (1970):

[W]here an individual's conduct, or a class of individuals' conduct, does not directly harm others[,] the public interest is not affected and is not properly the subject of the police power of the legislature.

In the Lee case, the court went on to announce a narrow exception to the above general rule. The State may also act to protect a large class of individuals from harm to themselves, but only where such harm has been compellingly demonstrated to the satisfaction of the court. State v. Lee, supra . Because the State has failed to establish that the private, personal use of marihuana harms either the user or society, I would hold that the prohibition of HRS § 329-5 (Supp.1971) unreasonably infringes upon the appellants' rights to personal autonomy.

....

... Under the standard laid down in State v. Lee, supra , mere speculation cannot form a valid basis for the government's use of its police power to protect a person from his own actions....

... Thus, I would hold that the State has failed to demonstrate sufficient justification for its intrusion into the privacy of the individual with respect to the personal use of marihuana. The State cannot prevail except under the test described by Mr. Justice Goldberg in his concurring opinion in Griswold v. Connecticut, 381 U.S. 479, 497 , 85 S.Ct. 1678, 1688 , 14 L.Ed.2d 510 (1965):

In a long series of cases[,] this court has held that where fundamental personal liberties are involved, they may not be abridged by the States simply on a *210 showing that a regulatory statute has some rational relationship to the effectuation of a proper state purpose. "Where there is a significant encroachment upon personal liberty, the State may prevail only upon showing a subordinating interest which is compelling," Bates v. Little Rock, 361 U.S. 516, 524 , 80 S.Ct. 412, 417 , 4 L.Ed.2d 480 . The law must be shown "necessary, and not merely rationally related, to the accomplishment of a permissible state policy." McLaughlin v. Florida, 379 U.S. 184, 196 , 85 S.Ct. 283, 290 , 13 L.Ed.2d 222 . See Schneider v. Irvington, 308 U.S. 147, 161 , 60 S.Ct. 146, 150 , 84 L.Ed. 155 .

In his concurring opinion, my Brother Abe recognizes that the State would ordinarily bear the burden of proving that the use of marihuana is harmful to the general public in order to justify prohibiting its use through the exercise of the police power. He argues, however, that since the appellants conceded that the State may regulate the use of marihuana, the State was relieved of its obligation to prove social harm. Apparently, he believes that the issue of the State's power to prohibit was not controverted, and that, therefore, the State was not put on notice that it had to prove social harm as part of its case.

The record, however, belies this argument. The appellants specifically distinguished in their brief between the State's power to regulate the use of marihuana (as in the case of such substances as alcohol and tobacco) and its power to prohibit altogether. Regulation and prohibition are not coextensive. Furthermore, the State's presentation in the circuit court was replete with attempts to prove a nexus between the use of marihuana and harm to the user as well as a propensity toward anti-social behavior and the commission of crime. The circuit court repeatedly refused to limit the controversy to the reasonableness of the classification of marihuana as a narcotic. The suggestion that the State was relieved of its obligation to establish social harm is unrealistic.

....

Finally, it should be stressed that the analysis I have adopted does not seek to establish this court as a super-legislature, exercising veto power over the wisdom and value of legislative policies. See Griswold v. Connecticut, supra at 512, 85 S.Ct. at 1697 (Justice Black's dissenting opinion). Any criticism which attempts to deter courts from inquiring into the constitutionality of laws must distinguish between legislation which seeks to regulate economic and social relationships and that which intrudes into the purely private sphere of human life. In the former instance[,] courts rightfully grant the legislature wide latitude for experimentation in the promotion of the general good. But, where the State endeavors to intrude into the individual's private life and regulate conduct having no public significance, it is the duty of the courts to offer a haven of refuge where the individual may secure vindication of his right to be let alone.

Kantner, 53 Haw. at 339-47 , 493 P.2d at 313-18 (Levinson, J., dissenting) (footnotes and some citations omitted) (some emphases and brackets in original and some added).

Even the most cursory inspection reveals the congruity of Justice Levinson's position in Kantner with that taken by Justice Abe in his concurring opinion; indeed, Justice Levinson's dissent largely adopts the "Abe thesis," albeit in somewhat different language. Like Justice Abe, Justice Levinson perceived a constitutionally protected right to the personal possession of marijuana. Like Justice Abe, Justice Levinson viewed the right as being derivative of a penumbral but fundamental constitutional "right to be let alone," which was housed, among other places, in article I, section 2 of the Hawai`i Constitution. Rather than denominating the right to be let alone as the constitutional right of "liberty," however, Justice Levinson described it as, variously, the right to "personal autonomy" and to "privacy"—terms that he employed synonymously.

For both Justices Abe and Levinson, the fundamental constitutional right of liberty/personal autonomy/privacy acted as a buffer against the state's unwarranted exercise of the police power. Justice Levinson reaffirmed *211 the Lee court's commitment to the proposition that, "where an individual's conduct... does not directly harm others[,] the public interest is not affected and is not properly the subject of the police power of the legislature," subject only to the caveat that "[t]he State may also act to protect a large class of individuals from harm to themselves, but only where such harm has been compellingly demonstrated to the court." Thus, because the personal consumption of marijuana was protected by a fundamental constitutional right—the right to liberty/personal autonomy/privacy—, Justices Abe and Levinson were united in the view that HRS § 329-5 was neither presumed to be constitutional nor subject to mere "rational basis" review. Rather, Justice Levinson echoed Justice Goldberg's position that "where fundamental personal liberties" were involved ( i.e., where there was "a significant encroachment upon personal liberty"), "the State may prevail only upon showing a subordinating interest which is compelling" and "necessary, and not merely rationally related, to the accomplishment of a permissible state policy."

Applying the foregoing analysis to Kantner , Justice Levinson, similarly to Justice Abe, would therefore have held "that the prohibition of HRS § 329-5 ... unreasonably in fringe[s] upon the appellants' rights to personal autonomy," inasmuch as the State had failed "to establish [both] that the private, personal use of marihuana harms either the user or society" and that there was a "sufficient justification for its intrusion into the privacy of the individual with respect to the personal use of marihuana." Moreover, in rebutting the Richardson/Marumoto plurality's position that the Kantner appellants had waived the issue whether the state's police power extended to the criminalization of marijuana possession, Justice Levinson highlighted a significant corollary to his holding, i.e., the critical distinction between the exercise of the police power to criminalize conduct through outright prohibition, on the one hand, and the state's less drastic power merely "to regulate the use of marihuana (as in the case of such substances as alcohol and tobacco)," on the other. As he noted, it was self-evident that "[r]egulation and prohibition are not coextensive." See supra note 4.

In his separate dissent, rounding out the Kantner quaternary, Justice Kobayashi—a former Hawai`i Attorney General—likewise emphasized the fundamental difference between the invocation of the police power to regulate and the state's power to criminalize private conduct. [22] Indeed, Justice Kobayashi readily acknowledged that, "[j]ust as it is a valid exercise of the State of Hawaii's police power to regulate the sale, use, and possession of such commodities as alcohol and tobacco, it is axiomatic that the regulation of marijuana is also a valid state activity." Kantner, 53 Haw. at 347 , 493 P.2d at 318 (Kobayashi, J., dissenting). In his view, however, "our present method of regulating marijuana—inclusion of marijuana within the classification of criminally proscribed narcotics—is unreasonable and unconstitutional in violation of the due process and equal protection clauses of the [f]ourteenth [a]mendment." Id. Accordingly, noting that "[w]e have in the past[,] in reviewing statutory classifications[,] recognized that it is the duty of this court to see that the legislature does not seek to achieve noble ends by unconstitutionally arbitrary means," Justice Kobayashi concluded that, "[e]ven if I felt that the legislature's present treatment of marijuana achieved a noble end, which I do not, HRS § 329-5, which proscribes the use of narcotics and classifies marijuana as a narcotic, must be regarded as an unconstitutionally arbitrary legislative declaration tantamount to an abuse of the state's police-power." Id. at 347-48, 493 P.2d at 318 (citation and internal quotation marks omitted) (emphasis added).

Thus, while Justice Kobayashi ultimately grounded his Kantner dissent in considerations of due process and equal protection, the conceptual underpinnings of his opinion echoed the insistence of Justices Abe and Levinson that the state make a showing, as a precondition to the exercise of the state's police power to criminalize, (1) that the personal *212 consumption of marijuana, per se, entail "direct harm to others," or, at the very least, (2) that a compelling demonstration could be made that a large class of individuals was recklessly affecting its physical well-being through conduct—which was so widespread as to be of grave concern to the public— causing physical injury and death:

Presumptively the statutory purpose sought to be attained by including marijuana within the classification of proscribed narcotic drugs stems from the following reasons: 1) that marijuana's use is per se harmful to the user, 2) that the use of marijuana is a stepping-stone to more serious drugs, 3) that the effects of consuming marijuana are sufficiently related to the effects of consuming narcotics, [and] 4) that the use of marijuana leads to criminal activity. These postulations have simply not been borne out. The findings from the evidence adduced indicate that none of the above rationale[s] bear[ ] a reasonable relation to the inclusion of marijuana within the narcotic classification.

....

The use of marijuana does not cause the social ills that the legislature has attempted to guard against. It is the present status of the law classifying marijuana as a narcotic and proscribing its use as a narcotic that is responsible for the social harm created. Organized crime is greatly benefitted by the fact that possessing, using, and trafficking in marijuana have been made illegal. Marijuana's illegality merely adds another weapon to the armory of the underworld for the exploitation of society....

It is suggested that a more reasonable and rational approach in this area would be to regulate marijuana in a manner similar to that of alcohol or tobacco. In this way[,] the abusive use of marijuana, not its reasonable use, would be given criminal sanctions. [23] Such a change of the law in this area would instill the respect of society that is needed for the preservation of criminal justice and prospectively decrease the criminalization of our younger generation.

Id. at 348-49, 352-53 , 493 P.2d at 318, 320 (emphasis added).

The overarching irony of the Kantner quaternary is that it was only because the Richardson/Marumoto plurality and the Abe concurring opinion took the position that the appellants had conceded arguendo that the state's police power extended, per se, to the criminalization of marijuana possession that the Kantner appellants lost their appeal and thereby changed constitutional history. In light of the combined positions of Justices Abe, Levinson, and Kobayashi, discussed supra, it is apparent that, but for the appellants' alleged concession, HRS § 329-5 would have been struck down as unconstitutional by this court, HRS § 712-1249, as subsequently enacted in 1972, would not have applied to the possession of marijuana, and Mallan would have had the right to be let alone on October 20, 1990 and to tell the state to mind its own business.

2. Baker, Renfro, Bachman, "reality control," and the "dumbing" of state constitutional analysis regarding the limits of the state's police power

During the eight-month period from December 1973 to August 1974, a majority of the members of this court retired—a turn of events that profoundly altered the center of gravity of this court's approach to the marijuana laws. On December 28, 1973, Justices Marumoto and Abe retired and were replaced by Justices Ogata and Menor. In addition, Justice Levinson retired on August 31, 1974, resulting in a ten-month vacancy in this court's fifth seat. [24] It was during the vacuum created by Justice Levinson's retirement that Justice Lewis [25] rejoined this court for the limited purpose of hearing and deciding State v. Baker, 56 Haw. 271 , 535 P.2d 1394 (1975).

*213 a. "doublethink" and nepenthe— State v. Baker

In Baker, a consolidated appeal, multiple defendants had been charged with unlawful possession of marijuana in any amount under the recently enacted HRS § 712-1249 (Supp. 1974)—the very statute at issue in the present matter. See supra note 2. The defendants moved to dismiss the charges on constitutional grounds. Obviously anchoring its analysis in the Abe/Levinson/ Kobayashi views as expressed in Kantner —by virtue of which, in combination, a majority of this court had deemed the predecessor statute to HRS § 712-1249 to be an unconstitutional exercise of the state's police power—, the district court

placed on the State the burden of showing clearly and convincingly that the possession of marijuana[,] in violation of [HRS § 712-]1249 constitute[d] a harm either to the individual or the community. It held [that] the State had not met this burden and that [HRS § 712-]1249 violated the due process clauses of the State and United States Constitutions.

Baker, 56 Haw. at 276 , 535 P.2d at 1397 . Accordingly, the district court "held the statute unconstitutional insofar as it related to the possession of marijuana," id. at 273 , 535 P.2d at 1395 , and dismissed the charges. The prosecution appealed.

Interestingly, it was left to retired Justice Lewis to author the Baker court's majority opinion. As she saw it, "t[he] primary question on appeal [was] whether the trial court's reversal of the ordinary presumption of constitutionality was error." Id. at 276 , 535 P.2d at 1397 (footnote omitted). Following this beacon, the Baker majority ruled in relevant part as follows:

Defendants contend that the State's interest in proscribing marijuana is "patently de minimis and does not warrant the application of a penal sanction to the mere possession of marijuana for personal use." In this argument[,] scant attention is paid to the presumption of constitutionality. [26]

We first consider the State's interest in proscribing marijuana. For reasons which will appear, we do not distinguish at this point between commercial distribution[,] on the one hand, and possession for personal use, on the other. As the second part of our consideration of this matter[,] we proceed to the question of whether the legislature was warranted in making mere possession of marijuana a petty misdemeanor, with the concomitant penal sanctions prescribed for that offense.

It is well settled that when a substance has been proscribed as harmful, the presumption of constitutionality applies although there are conflicting scientific views as to its harmful effects. This rule has been applied in marijuana cases. As stated in United States v. Kiffer, 477 F.2d 349 (2d Cir.1973):

* * * recent discussions of this issue suggest that the present state of knowledge of the effects of marijuana is still incomplete and marked by much disagreement and controversy. * * * It is true that the rationalization for the criminalization of marihuana has shifted over time. * * * This, however, does not negate the possibility that the justification now principally relied upon may have some merit. (pp. 353-354).

* * * [T]he question before us is a narrow one. It is whether it can fairly be said that Congress acted irrationally in prohibiting the commercial distribution of marihuana. We believe that the answer to that question is no. * * * (p. 355).

....

We hold, as was held in Kiffer, supra, that the presumption of constitutionality applies and has not been rebutted.... Accordingly, at least so far as commercial distribution is concerned, marijuana may be proscribed.

*214 While defendants have not been charged with distribution, the charge of possession under [HRS § 712-]1249 brings before the court the question of the reasonable relation of this section to the object of the legislation as shown by the statute as a whole. It long has been established that[,] as part of its scheme to prohibit the sale of intoxicants within its borders, a state may adopt such measures as are reasonably appropriate or needful to render exercise of that power effective[,] including criminalization of mere possession of the prohibited product for personal use....

In holding that the State had the burden of showing "clearly and convincingly" that the prohibited activity constituted "a harm either to the individual or to the community[,]" the [district] court below began with the premise that: "It is a fundamental right of liberty of a human being to conduct himself in a manner which neither harms himself nor others." To so approach the issue in this case is to begin with the wrong end of the stick. [27] ...

... [A]s stated in Crane v. Campbell, [ 245 U.S. 304 , 38 S.Ct. 98 , 62 L.Ed. 304 (1917) ]:

... [T]he right to hold intoxicating liquors for personal use is not one of those fundamental privileges of a citizen of the United States which no State may abridge. [28] A contrary view would be incompatible with the undoubted power to prevent manufacture, gift, sale, purchase or transportation of such articles—the only feasible ways of getting them. An assured right of possession would necessarily imply some adequate method to obtain not subject to destruction at the will of the State. 245 U.S. at 308 , 38 S.Ct. at 99 .

More recently, in Stanley v. Georgia, 394 U.S. 557, 567-568 , 89 S.Ct. 1243, 1249-1250 , 22 L.Ed.2d 542 (1969), the Supreme Court of the United States considered, in an obscenity case, the proposition that "prohibition of possession * * * is a necessary incident to statutory schemes prohibiting distribution." It held that, because first amendment rights were involved in that case, mere private possession of obscene material could not be made a crime. The court carefully distinguished the type of statute which is before us, saying in footnote 11:

What we have said in no way infringes upon the power of the State or Federal Government to make possession of other items, such as narcotics, firearms, or stolen goods, a crime. Our holding in the present case turns upon the Georgia statute's infringement of fundamental liberties protected by the First and Fourteenth Amendments. [29] No First Amendment rights are involved in most statutes making mere possession criminal.

... [T]he holding in Stanley is inapplicable to a statute prohibiting the possession of marijuana....

While our State Constitution has a right of privacy provision, [30] we do not find in that provision any intent to elevate the right of privacy to the equivalent of a first amendment right. [31] The intention was *215 to "effectively protect the individual's wishes for privacy as a legitimate social interest," including protection against "undue government inquiry * * * and regulation." [(Citing Stand. Comm. Rep. No. 55, reprinted in 1 Proceedings of the 1968 Constitutional Convention at 233-34.)] By the plain wording of the constitution[,] the right of privacy is protected only against unreasonable invasion.

Alaska has added to its constitution, as a separate section of its bill of rights, [article I, section 22,] a provision that:

The right of the people to privacy is recognized and shall not be infringed. The legislature shall implement this section. [32]

In Gray v. State, 525 P.2d 524, 527-528 (Alaska 1974), the Supreme Court held that[,] under this amendment[,] a statute which impinges upon the right of privacy "may be upheld only if it is necessary to further a compelling state interest." Reviewing a conviction for selling marijuana,... the court placed on the prosecution the burden of showing a compelling state interest to support the statute prohibiting the sale of marijuana. The case was remanded for an evidentiary hearing.

... We find nothing in our constitution or its history that leads to that conclusion. The presumption of constitutionality applies.

In citing United States v. Kiffer, supra, 477 F.2d 349 (2d Cir.1973), we are not unmindful of that portion of the opinion which considers the "argument * * * that[,] in the absence of compelling justification, the police power does not extend so far as to permit the Government to protect an individual against himself and that the concern for public health and safety is relevant only insofar as the actions of one individual may threaten the well-being of others." ( 477 F.2d at 354 .) ... With all respect, we do not agree. And the holding in our own case of State v. Kantner, 53 Haw. 327 , 493 P.2d 306 (1972), is not a precedent here, [33] because the only issue in Kantner was whether the legislature could include marijuana in the definition of a "narcotic drug," it being conceded in that case that the State may properly regulate the possession of marijuana under the police power.

We hold that a statute proscribing the commercial distribution of harmful substances may sweep within its ambit, as an enforcement measure, the possession of the substance for personal use. [34] That [HRS § 712-]1249 is such an enforcement measure is made abundantly clear by the provision limiting the offense to unlawful possession. [35] And since the issue here is *216 the possession of contraband, State v. Cotton, 55 Haw. 138 , 516 P.2d 709 (1973), ... and State v. Lee, 51 Haw. 516 , 465 P.2d 573 (1970), the motorcycle helmet.... cases, are inapplicable.

[36]

Baker, 56 Haw. at 276-82 , 535 P.2d at 1397-1401 (footnotes, some citations, and some internal quotation marks omitted) (some emphases added and some in original). Based substantially on the foregoing analysis, the Baker majority reversed the district court's orders dismissing the charges and remanded for further proceeding s. Id. at 284 , 535 P.2d at 1402 .

As I will attempt to demonstrate, the majority opinion in Baker effected a deconstruction and reconstruction of this court's jurisprudential "past" that is utterly Orwellian in its scope and methodology. Indeed, the Baker majority literally "went by the book":

The Party said that Oceania had never been in alliance with Eurasia. He, Winston Smith, knew that Oceania had been in alliance with Eurasia as short a time as four years ago. But where did that knowledge exist? Only in his own consciousness, which in any case must soon be annihilated. And if all others accepted the lie which the Party imposed—if all records told the same tale—then the lie passed into history and became truth. "Who controls the past," ran the Party slogan, "controls the future; who controls the present controls the past." ... All that was needed was an unending series of victories over your own memory. "Reality control," they called it; in Newspeak, "doublethink."

....

... The past not only changed, but changed continuously....

... Perhaps a lunatic was simply a minority of one. At one time it had been a sign of madness to believe that the earth goes round the sun; today, [it was a sign of madness] to believe that the past is unalterable. He might be alone in holding that belief, and if alone, then a lunatic....

George Orwell, Nineteen Eighty-Four 35-36, 79-80 (Harcourt, Brace and Company 1949) (emphasis deleted).

The Baker majority's first and core feat of "doublethink" was its declaration that, in beginning with the premise that "[i]t is a fundamental right of liberty of a human being to conduct himself in a manner which neither harms himself nor others," the district court had begun "with the wrong end of the stick." Baker, 56 Haw. at 278-79 , 535 P.2d at 1398 . With this one dismissive sweep of the judicial hand, the Baker majority was able to finesse the implicit premise of Kraft , which at the time had remained fundamentally intact for forty years (and continues to remain so), that, wholly separate and apart from any consideration of the enumerated constitutional rights of individuals, the "harm to others" principle circumscribed the exercise of the state's police power to criminalize conduct. See supra section I.A. In doing so, the Baker majority avoided the need to acknowledge the augmentation of the Kraft analysis in Lee, namely, that in order for the public health, safety, and welfare to be "generally affected," an individual's conduct must "directly harm others" and that, if it does not, the "public interest is not affected" and it "is not properly the subject of the police power of the legislature." See supra note 27 and section I.B.1.

That the Baker majority was fully aware that the state's police power is not constitutionally boundless is apparent from its oblique reference to the "Abe thesis," albeit in *217 the guise of quoting the United States Court of Appeals for the Second Circuit in Kiffer. Baker, 56 Haw. at 281 , 535 P.2d at 1400 . But by the flippant comment that, "[w]ith all respect," it "d[id] not agree" with the characterization of the "Abe thesis" in Kiffer , the Baker majority performed its second feat of "doublethink"—avoiding the need to deal on the merits with (1) the "Abe thesis," as first articulated in Lee, see supra section I.B.2, later expanded in Kantner, see supra section I.C.1, and expressly endorsed by Justice Kobayashi in Cotton, see supra notes 7 and 9, or (2) Justice Levinson's analysis in Kantner, see supra section I.C.1.

Which brings us to the Baker majority's third—and most monumental—feat of "doublethink." By proclaiming Kantner "not a precedent" (or, in the Orwellian vein, an "unprecedent") "because the only issue in Kantner was whether the legislature could include marijuana in the definition of a `narcotic drug,' it being conceded ... that the State may properly regulate the possession of marijuana under the police power," Baker, 56 Haw. at 282 , 535 P.2d at 1400 , the Baker majority managed to ignore the unignorable: that, a mere three years previously, a three-member majority of the Kantner court (which represented the only outcome-dispositive and controlling authority on the subject in this jurisdiction) had agreed that, as a matter of constitutional law, the police power of the state did not extend to the criminalization of mere possession of marijuana for personal use. See supra section I.C.1.

Thus did the Baker majority spin gold into straw and render untrue the truth that " two plus two make four. If that is granted, all else follows." Nineteen Eighty-Four at 81 (emphasis in original).

If the Baker majority was towing "the Party's line, it did not, however, send Justice Kobayashi to Room 101. Rather, in the face of the "doublethink" permeating the majority opinion, he preserved Winston Smith's belief that "[b]eing in a minority, even a minority of one, [does] not make you mad. There [is] truth and there [is] untruth, and if you cl[i]ng to the truth even against the whole world, you [are] not mad.... `Sanity is not statistical[.]'" Nineteen Eighty-Four at 219. "Concurring" and dissenting, he wrote in relevant part:

... [I]n my opinion, the real question is whether, on the record, the [defendant] adduced evidence showing that the substantive provisions of the statute are arbitrary and capricious and void under the due process clause of the Hawaii State Constitution and the Constitution of the United States.

In the trial below the [defendant] filed a motion to dismiss the charge filed against him and contended:

1. The statute is unconstitutional on the ground of unlawful assertion of police power.

2. The statute violates the constitutional guarantee of privacy.

In support of the first contention[,] the [defendant] stated:

The present state of scientific knowledge indicates that marijuana use has no effects on the individual that leads directly to harm to others. At most it can be argued that possession of marijuana is harmful to the possessor. Even assuming arguendo that possession of marijuana is harmful for the possessor, it cannot be statistically demonstrated by the [State] that the consequent physical injury is so widespread as to be of such grave concern to the public as to effect the public interest generally....

( See State v. Lee, 51 Haw. 516, 521 , 465 P.2d 573, 577 (1970) for appropriate test).

In support of the second contention, the [defendant] argued:

The right to personal privacy ... [is] a fundamental substantive constitutional right.... Griswold v. Connecticut, 381 U.S. 479 , 85 S.Ct. 1678 , 14 L.Ed.2d 510 (1965); [t]he use of marijuana is a private act which is protected by this substantive right to privacy; [t]he actual use of marijuana involves no one other than the user....

....

In contrast[ ] with the minimum but controversial findings of possible harm to the individual in the use of marijuana, and [with] the total lack of findings that marijuana *218 use would cause the user to directly or indirectly harm others, the proof of the harmful effects of two publicly accepted drugs—alcohol and tobacco—is well documented.

The harmful effects of alcohol are numerous[.]

....

Tobacco is one of the most physiologically damaging substances used by man.

....

History shows that nation after nation, and several states in the United States[,] tried to curb the use of tobacco by criminalizing the cultivation, possession[,] and use of tobacco. However, criminalization had no effect in reducing and/or eliminating the use of tobacco. Record shows that tobacco acquired a greater number of addicts, notwithstanding the penal consequences.

The history of the criminalization of the production, distribution, and consumption of alcohol is well documented in the tragic period of the prohibition era of 1920-1933. Alcohol prohibition was not repealed because alcohol is a harmless drug. Prohibition was repealed because it failed to discourage the consumers of alcohol, and, it created a monster in the form of organized crime syndicates controlling distribution of alcohol with its attendant violence.

Upon consideration of the record, notwithstanding United States v. Kiffer, 477 F.2d 349 (2d Cir.1973)[,] cited by the majority of the court, I am compelled to conclude that the statute in question constitutes an arbitrary and capricious exercise of police powers by the [state]. I premise my opinion on the following reasons:

1. There is no conclusive proof that marijuana is a detrimental drug;

2. There is no proof that mere possession of marijuana harms the individual possessor;

3. There is no proof that mere possession of marijuana would cause the possessor to directly harm others;

4. Any possible harm to the individual in the use of marijuana is merely debatable;

5. There is no proof that mari[j]uana use leads the user to harm others;

6. It cannot be statistically demonstrated that the consequent physical and/or mental injury through the use of marijuana is so widespread as to affect the public interest generally;

7. Marijuana has not been proven to be an addictive drug; [and]

8. There is no evidence of any secondary harm to society resulting from any harm to the user of marijuana.

....

In State v. Cotton, 55 Haw. 138 , 516 P.2d 709 (1973), the court stated at 139, 516 P.2d at 710 :

We accept ... the fundamental tenet that the relationship between the individual and the state leaves no room for regulations which have as their purpose and effect solely the protection of the individual....

The proscription of possessing marijuana is, at best, solely to protect the individual user of marijuana.

In my opinion, however, the real purpose of the criminalization of possession of marijuana is simply to perpetuate society's (majority of) prejudice against marijuana; a prejudice which I believe is based mainly upon inaccurate information. Clearly, the only confirmed harm of marijuana is, not in marijuana per se, but the laws which criminalize[ ] the possessor. The lives and careers of many thousands of possessors have been damaged or destroyed irrationally and oppressively. The interest of society generally has been seriously harmed by the unnecessary criminalization of a large segment of the people. Organized crime or crimes have been fostered by the act of the [state] in proscribing the possession of marijuana.

In the exercise of [the state's] police powers, the law is clear:

To justify the state in [thus] interposing its authority in behalf of the public, it must appear, first, that the interests of *219 the public [generally, as distinguished from those of a particular class] require such interference; and, second, that the means are reasonably necessary for the accomplishment of the purpose, and not unduly oppressive upon individuals....

Goldblatt v. Hempstead, 369 U.S. 590, 594-95 , 82 S.Ct. 987, 990 , 8 L.Ed.2d 130 (1962); Lawton v. Steele, 152 U.S. 133, 137 , 14 S.Ct. 499, 501 , 38 L.Ed. 385 (1894).

In my opinion[,] the statute prohibiting the possession of marijuana fails to meet the above test. Mere debatable possible harm of marijuana on the individual user does not justify the [state] in interposing its authority in behalf of the public. Assuming arguendo [that] justification exists in proscribing the possession of marijuana, the means used to discourage the individual possession of marijuana is not reasonably necessary. The means used has not only failed to accomplish the purpose[,] but is irrational and unduly oppressive upon the individual marijuana users.

It is ironic, indeed, that the inexplicable moral code of the majority of society accords the stamp of moral approval of two of the most harmful drugs—tobacco and alcohol—by permitting the cultivation or manufacture, the distribution, and the general use thereof, without criminal penalties, except in extreme specific instances. Yet, in the case of marijuana, where there is no conclusive proof of its harmful effects, and where the possible harm is merely debatable, and further where there is no evidence showing that marijuana use or possession ... causes the user or possessor to harm others, the state totally proscribes, with criminal penalties, the mere possession of marijuana.

I would affirm the result of the trial court's judgment for the reasons stated.

Baker, 56 Haw. at 285, 288-92 , 535 P.2d at 1402, 1404-06 (Kobayashi, J., concurring and dissenting) (some brackets, ellipsis points, and emphasis in original and some added) (footnotes omitted).

With respect to this court's collected jurisprudence in Kraft, Lee, Cotton, and the " Kantner trio" regarding the limits of the state's police power, it is apparent from the foregoing that Justice Kobayashi was, in substance, making the following plea to the Baker majority: "But it did exist! It does exist! It exists in memory. I remember it. You remember it." Nineteen Eighty-Four at 251. And it is equally apparent that the Baker majority was responding (albeit disingenuously), as did the diabolical O'Brien of George Orwell's imagination: "I do not remember it." Id.

b. "progressive teleologic regression"— Renfro and Bachman [37]

Six months to the day after Baker , this court handed down its three-to-two split decision in State v. Renfro, 56 Haw. 501 , 542 P.2d 366 (1975). [38] The Renfro defendants had been convicted of promoting a detrimental drug in the first degree (a class C felony), in violation of HRS § 712-1247(1)(e), for having "knowingly and unlawfully ... possesse[d]... 2.2 pounds or more [of] marijuana." [39] *220 On appeal, they attacked the constitutionality of the statute, inter alia, on the grounds "that the section exceed[ed] the legitimate police power of the State" and "violate[d] the constitutional right to privacy." Renfro, 56 Haw. at 502 , 542 P.2d at 368 .

In a majority opinion, authored by Chief Justice Richardson and joined by Justices Ogata and Menor, this court affirmed the defendants' convictions. Its relevant analysis consisted of the following:

In the recent case of State v. Baker, 56 Haw. 271 , 535 P.2d 1394 (1975), this court upheld the constitutionality of section 1249 of the Penal Code....

... [T]he holding in Baker is immediately dispositive of two arguments raised by [the defendants], namely, the claims that a proscription of the possession of marijuana exceeds the State's police power and that such a proscription violates the right of privacy.

We held in Baker that criminalization of the possession of marijuana is within the legislature's police power. We reasoned that recent scientific studies questioning the harmfulness of marijuana have not sufficiently rebutted the presumption of constitutionality attaching to the legislature's proscription. 56 Haw. at 276-78, 535 P.2d at 1397-98 . The scientific studies of marijuana are still too inconclusive to compel the conclusion that the legislature has acted arbitrarily or irrationally in treating marijuana as a substantial danger to society.

Baker also held that the constitutional right of privacy does not prevent the legislature from proscribing the possession of marijuana for private use. The court noted that neither the federal nor Hawaii constitutions has elevated the right of privacy to the equivalent of a first amendment right. [40] Therefore, in the face of the presumptively rational legislative finding that marijuana poses a serious harm to society, the right of privacy must give way.

....

We agree both with the holding in State v. Kantner, supra , that "... there is no fundamental guarantee protecting the use and possession of euphoric drugs" ( 53 Haw. at 333 , 493 P.2d at 310 ) and with the analogous holding in State v. Baker, supra , that the particular right-of-privacy values attaching to the possession of marijuana for personal use are not in themselves fundamental constitutional rights comparable to the rights guaranteed by the first amendment (56 Haw. at 280-83, 535 P.2d at 1399-1401 ). Therefore we apply the rational basis test in this case, rather than a "strict scrutiny" or "compelling state interest" standard of review.

... We hold—at least for the present while scientific knowledge about marijuana remains incomplete—that it is not irrational for the legislature to regard marijuana as threatening a degree of harm substantial enough to warrant imposition of ordinary criminal sanctions, including imprisonment, for the possession of marijuana.

Renfro, 56 Haw. at 502-03 , 505 n. 9, 506, 542 P.2d at 368 -70 & n. 9 (some ellipsis points in original and some added) (footnotes omitted).

What is particularly striking about the majority opinion in Renfro is its mantraesque, rote quality. Although the constitutional constraints—established in Kraft and Lee — on the state's police power were acknowledged in theory, they seem essentially to have atrophied to a null set. Indeed, the Renfro majority opinion virtually turns the Kraft/Lee analysis on its head. Gone was the proposition, from which "we start," "that where an individual's conduct, or class of individuals' conduct, does not directly harm others[,] the public interest is not affected and is not properly the subject of the police power of the legislature." Lee, 51 Haw. at 521 , 465 P.2d at 577 . And in the face of a legislative determination "that the conduct of a particular class of people recklessly affects their physical well-being and that the consequent physical injury and death is so widespread as to be of grave concern to the public," id., not only was it no longer required, *221 as a precondition of the state's exercise of the police power, that "the incidence and severity of the physical harm [be] statistically demonstrated to the satisfaction of the court," id. (emphasis added), but the diametric opposite seemed to have become the case: if the incidence and severity of the physical harm was "inconclusive," see Renfro, 56 Haw. at 503 , 542 P.2d at 368 , and the state of "scientific knowledge" was "incomplete," see id. at 506 , 542 P.2d at 370 , then the legislature could exercise the police power in whatever way it wanted.

In short, the Renfro majority seemed to have completely forgotten the "direct harm to others/statistically demonstrated secondary social harm" circumscription of the constitutional exercise the state's police power so carefully explicated in Kraft and Lee. That being so, it is little wonder that the Renfro majority regarded the constitutional right of privacy—if it really believed there was one at all, having never found an instance in which it took precedence over anything else—as being of such minor, non-fundamental importance that individual privacy was invariably obliged to "give way," see Renfro, 56 Haw. at 503 , 542 P.2d at 369 , to legislative whim and speculation.

Justice Kobayashi, having written himself blue in the face in Kantner and Baker , contented himself with a one-sentence dissent: "I dissent for the reasons stated in my dissent in State v. Baker, 56 Haw. 271 , 535 P.2d 1394 (1975)." Renfro, 56 Haw. at 507 , 542 P.2d at 370 (Kobayashi, J., dissenting). Significantly, however, Justice Kobayashi's reasoning in Baker had apparently persuaded Circuit Court Judge Sodetani, who therefore joined in the Renfro dissent. See supra note 38. Accordingly, as in Kantner , the Hawai`i marijuana possession laws escaped constitutional oblivion by a single vote.

On December 29, 1978, Justice Kobayashi—the last of the " Kantner trio"—retired from this court. Three months later, on February 28, 1979, Justice Kidwell (who had replaced Justice Levinson, see supra note 24) did likewise. It was under these conditions, on May 21, 1979, that a unanimous Hawai`i Supreme Court—consisting of Chief Justice Richardson, Justices Ogata and Menor, Retired Justice Marumoto (who, seven years earlier, had joined the plurality opinion in Kantner ), and Circuit Court Judge Kato— handed down a per curiam opinion in State v. Bachman, 61 Haw. 71 , 595 P.2d 287 (1979). [41]

Like Mallan and the Baker defendants (and, pursuant to the predecessor statute, the Kantner defendants before them), Bachman was convicted of the knowing possession of marijuana in any amount, in violation of HRS § 712-1249(1). See supra note 2. And like Mallan and the defendants in Baker and Kantner , Bachman, among other things, "assert[ed] the unconstitutionality of the statute." Bachman, 61 Haw. at 72 , 595 P.2d at 287 . Not surprisingly, with Justices Abe, Levinson, and Kobayashi gone from the scene and Judge Sodetani safely relegated to his circuit court bench, this court wasn't giving an inch. So it was that this court dispatched Bachman's constitutional claim with the following pithy analysis: "We find [Bachman's] contention to be without merit. What we said in State v. Baker, 56 Haw. 271 , 535 P.2d 1394 (1975), and State v. Renfro, 56 Haw. 501 , 542 P.2d 366 (1975), is still determinative of this issue." Id. at 72, 595 P.2d at 287-88 (footnote omitted).

To all intents and purposes—and with Kraft, Lee, Cotton, and Kantner still intact but as if they had never been written (that is, as if they were "unprecedents")—, the state's police power was now perceived as boundless and the penumbral, fundamental constitutional right to liberty/personal autonomy/privacy all but moribund. Then came the results of the 1978 Constitutional Convention and, with it, the rekindling of the flame.

*222 II. THE BIRTH OF AN EXPRESS, FUNDAMENTAL CONSTITUTIONAL RIGHT TO PRIVACY AND ITS AFTERMATH

A. The 1978 Constitutional Convention

In 1976, pursuant to article XV, section 2— now denominated article XVII, section 2, see Hawai`i State AFL-CIO v. Yoshina, 84 Hawai`i 374, 376 & n. 2, 935 P.2d 89 , 91 & n. 2 (1997) (noting that, while originally "ratified by plebiscite on November 7, 1950" as article XV, section 2, the section was renumbered in 1978 as article XVII, section 2)—of the Hawai`i Constitution, [42] the voters mandated the convocation of the 1978 Hawai`i Constitutional Convention. Hart v. King, 470 F.Supp. 1195, 1196 (D.Haw.1979). The 1978 Constitutional Convention ultimately "presented to the electorate ... 34 amendments, all of which were passed by the necessary constitutional margin[.]" Id. (footnote omitted).

1. Standing Committee Report No. 69

In order to accomplish its task, the 1978 Constitutional Convention organized into standing committees, one of which—the Committee on Bill of Rights, Suffrage and Elections (CBRSE)—produced Committee Proposal No. 15, which "covered [a]rticle I of the State Constitution," i.e., the state's Bill of Rights. Comm. Whole Rep. No. 15, reprinted in 1 Proceedings of the Constitutional Convention of Hawai`i of 1978 (1980) [hereinafter, 1 Proceedings] at 1023. Committee Proposal No. 15 provided in relevant part:

RESOLVED, that the following be agreed upon as amending Article I of the State Constitution.

....

6. Article I is amended by adding a new section to be appropriately designated and to read:

RIGHT TO PRIVACY

Section 6. The right of the people to privacy is recognized and shall not be infringed without the showing of a compelling state interest. The legislature shall take affirmative steps to implement this right.

Comm. Prop. No. 15, reprinted in 1 Proceedings at 825, 826-27 (emphasis in original).

Article I, section 6, as adopted by the 1978 Constitutional Convention and ratified by the voters, was, of course, unchanged from the CBRSE's proposed language. In a footnote, Committee Proposal No. 15 directed that, "[f]or background, discussion and rationale on the amendments proposed herein, refer to Stand. Comm. Rep. No. 69[and] Com. Whole Rep. No. 15...." Id., reprinted in 1 Proceedings at 826. Standing Committee Report No. 69 explained in detail the CBRSE's intent with respect to Proposal No. 15—and, in particular, article I, section 6 as recommended in it—, and Committee of the Whole Report No. 15 commented extensively on Standing Committee Report No. 69. In this context, we have long recognized that "`a constitutional provision must be construed in connection with other provisions of the instrument, and also in the light of the circumstances under which it was adopted and the history which preceded it[.]'" Yoshina , 84 Hawai`i at 376, 935 P.2d at 91 (quoting Carter v. Gear, 16 Haw. 242, 244 (1904), aff'd, 197 U.S. 348 , 25 S.Ct. 491 , 49 L.Ed. 787 (1905)) (brackets in original).

Therefore, a close examination of both Standing Committee Report No. 69 and Committee of the Whole Report No. 15 is critical to an accurate understanding of the framers' intent regarding the scope of the express right to privacy, as codified in the new article I, section 6. Standing Committee Report No. 69 stated in relevant part:

*223 Your Committee on Bill of Rights, Suffrage, and Elections ... begs leave to report as follows:

....

Your Committee agreed to amend [a]rticle I to include a separate and distinct section devoted entirely to the right to privacy. Your Committee strongly believes that a new section on the right to privacy is warranted despite the inclusion within [a]rticle I, [s]ection 5 [now article I, section 7, see supra note 19], of a prohibition against unreasonable invasions of privacy.

The committee proposal reads as follows:

"RIGHT TO PRIVACY

" Section. The right of the people to privacy is recognized and shall not be infringed without the showing of a compelling state interest. The legislature shall take affirmative steps to implement this right. " [(Emphasis in original.)]

In 1968 the Constitution was amended to include the prohibition against unreasonable invasions of privacy, but its inclusion within a section patterned after the [f]ourth [a]mendment right against unreasonable searches and seizures and the debate during the 1968 constitutional convention have engendered some confusion as to the extent and scope of the right. Although it appears clear that the proponents of the concept saw the right as broader than one limited to protection against invasions of privacy in criminal cases, the convention devoted most of the debate to the relationship between the proposed amendment and concern over wire-tapping. This has led the Hawaii supreme court to state that the privacy right emanated from a concern over extensive use of electronic surveillance, thus limiting the right to privacy by implying that it did not encompass the concept of a right to personal autonomy. State v. Roy, 54 Haw. 513 , 510 P.2d 1066 (1973). Thus it may be unclear whether the present privacy provision extends beyond the criminal area. Therefore, your Committee believes that it would be appropriate to retain the privacy provision in [a]rticle I, [s]ection 5, but limit its application to criminal cases, and create a new section as it relates to privacy in the informational and personal autonomy sense.

Your Committee is aware that the right of privacy has meaning varying in degree and nature, and case law may not be clear as to the extent and scope of the rights. Therefore, your Committee wishes to explicitly state the intent of your Committee as to the scope and nature of the right.

Your Committee believes that the right of privacy encompasses the common law right of privacy or tort privacy. This is a recognition that the dissemination of private and personal matters, be it true, embarrassing or not, can cause mental pain and distress far greater than bodily injury. For example, the right can be used to protect an individual from invasion of his private affairs, public disclosure of embarrassing facts, and publicity placing the individual in a false light. In short, this right of privacy includes the right of an individual to tell the world to "mind your own business."

Another area of concern that may be alleviated by this right is the issue of informational privacy, or the ability of a person to control the privacy of information about himself. There has been a trend in modern-day society to require that a person complete forms detailing information about himself. There is often a legitimate need for government or private parties to gather data about individuals, but there is danger of abuse in the use and/or dissemination of such information. The danger of inclusion of inaccurate data being retained in some computer bank, thereby affecting the life of an individual, is inherent in our modern day, but the right to privacy should insure that at the least an individual shall have the right to inspect records to correct misinformation about himself.

Perhaps the most important aspect of privacy is that it confers upon people the most important right of all—the right to be left alone. As Justice Brandeis said in his now celebrated and vindicated dissent *224 in Olmstead v. U.S., 277 U.S. 438 , 48 S.Ct. 564 , 72 L.Ed. 944 (1928):

"The makers of our Constitution under-took to secure conditions favorable to the pursuit of happiness. They recognized the significance of man's spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone—the most comprehensive of rights and the right most valued by civilized men."

It gives each and every individual the right to control certain highly personal and intimate affairs of his own life. The right to personal autonomy, to dictate his lifestyle, to be oneself are included in this concept of privacy. As Justice Abe stated in his concurring opinion in State v. Kantner, 53 Haw. 327 , 493 P.2d 306 (1972): each person has the "fundamental right of liberty to make a fool of himself as long as his act does not endanger others, and that the state may regulate the conduct of a person under pain of criminal punishment only when his actions affect the general welfare—that is, where others are harmed or likely to be harmed."

Whether an individual's desire to engage in a particular activity is protected by this aspect of the right to privacy (the right to personal autonomy) will remain a matter for the courts. For example, it has been held that society has no legitimate interest in the hairstyle of a person attending a public educational institution. Other cases have included certain marital, sexual and reproductive matters within this right, thereby insuring freedom of choice in these matters.

It should be emphasized that this right is not an absolute one[,] but, because similar to the right of free speech, it is so important in value that it can be infringed upon only by the showing of a compelling state interest. If the State is able to show a compelling state interest, the right of the group will prevail over the privacy rights or the right of the individual. However, in view of the important nature of this right, the State must use the least restrictive means should it desire to interfere with the right.

Your Committee expects that at times the interests of national security, law enforcement, the interest of the State to protect the lives of citizens or other similar interests will be strong enough to override the right to privacy. It is not the intent of your Committee to grant a license to individuals to violate the right of others[,] but rather to grant the individual full control over his life, absent the showing of a compelling state interest to protect his security and that of others. Thus[,] it is expected that in certain situations the interest of the State will rise to such an intensity that it will be deemed a compelling state interest. For example, in the case of dissemination of information about individuals, law enforcement officials would not be restricted in sharing information about suspected wrongdoers, or the press may be justified in writing about certain personal matters of public figures. Further, it should be noted that the committee does not intend to prohibit one department of the state government from obtaining data kept in another department, as happened in Alaska. Your Committee does not believe that exchanging and sharing of information between separate components of government should be prohibited. Your Committee is concerned about abuses such as using such data for illegitimate purposes or revealing it to the public when no legitimate public interest is involved. Thus, your Committee does not envision closing off access to court records or public records already subject to "sunshine" laws but feels that this amendment would be useful in prohibiting abuse, misuse or unwarranted revelations of highly personal information. However, your Committee strongly believes that in a day when outside forces seek to learn more and more about an individual and control more and more about an individual's life, this amendment is necessary.

*225 The importance of this amendment is that it establishes that certain rights deserve special judicial protection from majority rule. It recognizes that there will always be a dynamic tension between majority rule, which is the basis of a democratic society, and the rights of individuals to do as they choose, which is the basis of freedom, and your Committee believes that this amendment recognizes the high value that individuality has in society. Your Committee, by equating privacy with the [f]irst [a]mendment rights, intends that the right be considered a fundamental right and that interference with the activities protected by it be minimal.

Stand. Comm. Rep. No. 69, reprinted in 1 Proceedings at 671, 673-75 (emphases added). [43]

In parsing the CBRSE's explication of the intended scope of the new article I, section 6, one is struck by its familiarity—that is, by the fact that nothing in it new and, indeed, that it has all been said, quite expressly, before. Put baldly, Standing Committee Report No. 69 represents nothing less than a clear reaffirmation of the interrelationship between the legitimate domain of the state's police power, on the one hand, and the individual's fundamental constitutional right to liberty/personal autonomy/privacy, on the other, as progressively conceptualized by this court in Kraft, Lee, and Cotton , and as refined by the "Abe thesis" (to which Justice Kobayashi also adhered in Cotton and substantially endorsed in Kantner ) and Justice Levinson's analysis in Kantner .

For present purposes, a correct understanding of Standing Committee Report No. 69 is therefore essential for a number of reasons. As a foundational matter, the CBRSE's express approval and incorporation by reference of Justice Abe's statement in Kantner that each person has the

fundamental right of liberty to make a fool of himself so long as his act does not endanger others, and that the state may regulate the conduct of a person under pain of criminal punishment only when his actions affect the general welfare—that is, where others are harmed or likely to be harmed

reflects the resurrection of the proposition— first perceived by this court in Kraft , amplified in Lee and Cotton , and all but forgotten in Baker, Renfro, and Bachman —that, wholly separate and apart from any consideration of the constitutional right to privacy, the "harm to others" principle is a circumscription that limits the exercise of the state's police power to criminalize conduct in Hawai`i.

Moreover, the CBRSE expressed the clear intention that "the right to be let alone," as first described by Justice Brandeis in Olmstead and later invoked by Justices Abe and Levinson in Lee and Kantner , was to be "the most important aspect" of the right of privacy guaranteed by the new article I, section 6. To underscore the point, the CBRSE articulated its opinion that "the right to be left alone," which article I, section 6 would "confer[ ] upon people," was "the most important right of all." And, insofar as the right to be left alone also gave to "each and every individual... [t]he right to personal autonomy, to dictate his [or her] lifestyle, and to be oneself," or, put another way, "the right[ ] of individuals to do as they choose," the CBRSE clarified that the cluster of rights codified in article I, section 6 would, in and of itself, further constrain and limit the state's exercise of the police power.

In this connection, the CBRSE emphasized that "[w]hether an individual's desire to engage in a particular activity is protected by this aspect of the right to privacy ([ i.e., ] the right to personal autonomy)," on the one *226 hand, or whether "society has [a] legitimate interest" in criminalizing the activity through the exercise of the police power, on the other, "will remain a matter for the courts." Obviously, the "examples" enumerated in Standing Committee Report No. 69 are only that— nonexclusive examples by way of illustration; it should go without saying (but nevertheless needs saying) that "the hairstyle of a person attending a public educational institution" and "certain marital, sexual[,] and reproductive matters ... insuring freedom of choice" are merely representative of the "cases" that are "included" within the universe of "activity" that lies outside the state's police power to criminalize.

Thus, with respect to any given "activity," the issue whether it falls within the ambit of the right to privacy "in the personal autonomy sense," entailing no harm or likelihood of harm to others, is omnipresent. If the activity falls within the foregoing ambit, "the individual" is granted "full control over his [or her] life," and the activity is not subject to the state's police power to criminalize. When this class of activity is at issue, the following views of Professor Feinberg are germane:

The best way to put this point, I think, is to say that personal sovereignty is not just another interest, subject to balancing tests when in conflict with another interest. Sovereignty cannot be put on the interest-balancing scales at all. Personal sovereignty places an absolute duty on lawmakers not to cross its boundaries. To "weigh" such a duty against mere interests brings to mind Laurent Frantz's remark in a similar context: "One's need for a new car can be balanced against the other uses to which the same money might be put but not against `Thou shalt not steal'." Still, voluntarily risked injuries, deaths, broken backs, and broken hearts, are evils of some kind, even though not violations of rights or grounds for grievance, and the prevention of any evil is a relevant reason for any action. That should no

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