State v. Mallan

950 P.2d 178, 86 Haw. 440, 1998 Haw. LEXIS 6

Opinions

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 Constitution¹ encompasses a right to possess and use marijuana² for recreational purposes. Because we believe that the right to privacy does not in- elude 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 10:16 p.m., Petitioner-Appellant Lloyd Malian was arrested in the parking lot of the Waikiki Shell after Honolulu police officers, attracted by the odor of burning marijuana, found a partially burnt marijuana cigarette in Malian’s automobile. Malian was charged with promoting a detrimental drug in the third degree, in violation of Hawaii Revised Statutes (HRS) § 712-1249 (1993).³

Malian 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, Malian filed a motion to dismiss. In support of the motion, Malian argued, inter alia, that the right to smoke marijuana is protected by the Hawaii Constitution’s right to privacy. At a subsequent hearing on the motion, the parties stipulated to the testimony of Malian’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 Malian’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 Malian guilty. Malian was sentenced to a fine of $60. Malian 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 Hawaii 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 Bachman and, therefore, affirmed Malian’s conviction. Malian 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 eases 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, ie., 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:

[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 same-sex 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 Eisen-stadt both involved contraception and Roe dealt with abortion. See Griswold, swpra; 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 markedf,]” 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 /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 “eorrel-ative 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, Malian 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 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, Malian has the heavy burden of demonstrating that HRS § 712-1249 lacks any rational basis. If Malian fails to satisfy his burden, the statute is presumed to be constitutional and must be upheld.

We believe that Malian has failed to satisfy his burden. The stipulated evidence provided by Malian’s expert witnesses certainly support his argument that marijuana is not harmful. However, those experts 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 Malian 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 Malian 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 Malian’s purported right to possess and use marijuana. The record indicates that Malian 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 Malian 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 implieat-tag 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, Malian 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, Malian 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 [ie., 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 of constitutional rights and have often extended the protections of the Hawaii 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, unre-viewable 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 ease 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 Hawaii 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 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,

Footnotes

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[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 any thing 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

Malian 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 Malian’s suggestion to adopt the Ravin analysis. Initially, we state the obvious: Ravin is a ease 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. 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, Malian’s conviction would still be affirmed. Ravin was expressly based on privacy within the home. The record is clear that Malian 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 derprived 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 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, Malian failed to meet his burden. Malian’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, Malian 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 Malian, 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 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 ease. 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.

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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].

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... 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 Bran-déis. 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 ease 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, Bums, 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 . 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 Hawaii 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 Hawaii Constitution does not encompass a right to possess and use marijuana for recreational purposes.¹² Therefore, we affirm the ICA’s decision and affirm Malian’s conviction of promoting a detrimental drug in the third degree.

1

. Article I, section 6 of the Hawai'i Constitution provides:

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.

2

. HRS § 712-1240 (1993) provides in relevant part:

"Marijuana” means any part of the plant (genus) cannabis, whether growing or not, including the seeds and the resin and every alkaloid, salt, derivative, preparation, compound, or mixture of the plant, its seeds or resin, except that, as used herein, ''marijuana" does not include hashish, tetrahydrocannabinol, and any alkaloid, salt, derivative, preparation, compound, or mixture, whether natural or synthesized, of tetrahydro-cannabinol.

Marijuana is also commonly spelled "marihuana” and "mariguana.” See Black’s Law Dictionary 967 (6th ed.1990). Such spelling differences, when used in this opinion, are not intended to be significant.

3

. HRS § 712-1249 (1993) provides in relevant part:

Promoting a detrimental drug in the third degree. (1) A person commits the offense of promoting a detrimental drug in the third degree if the person knowingly possesses any marijuana ... in any amount.

(2) Promoting a detrimental drug in the third degree is a petty misdemeanor.

Although gender-neutral language was added in 1993, the statute is substantively the same as in 1990.

4

. We note that this opinion involves only the "personal autonomy" prong of the right to privacy. Article I, section 6 also protects privacy in the "informational” sense. The "informational” prong deals with issues such as disclosure of medical, financial, educational, or employment records. We have addressed the "informational” prong in a separate line of cases. See, e.g., State Organization of Police Officers (SHOPO) v. Society of Professional Journalists—University of Hawai'i Chapter, 83 Hawai'i 378, 927 P.2d 386 (1996); Painting Industry of Hawaii Market Recovery Fund v. Alm, 69 Haw. 449, 746 P.2d 79 (1987); Nakano v. Matayoshi, 68 Haw. 140, 706 P.2d 814 (1985).

5

. See, e.g., 21 U.S.C. §§ 802, 812, 844 (1994); Ala.Code § 13A-12-214 (1994); Ariz.Rev.Stat. Ann. § 13-3405 (Supp.1996); Ark.Code Ann. §§ 5-64-215, 5-64-401 (Michie 1993); Cal. Health & Safety Code § 11357 (West 1991); Colo.Rev.Stat. Ann. § 18-18-406 (1997); Conn. Gen.Stat. Ann. § 21a-279 (West 1994); Del.Code Ann. tit. 16, §§ 4701, 4714, 4754 (1995); D.C.Code Ann. §§ 33-522, 33-541 (1993); Fla. Stat. Ann. § 893.13 (West 1994); Ga.Code Ann. § 16-13-30 (1996); Idaho Code §§ 37-2705, 37-2732 (1994); Ill.Ann.Stat. ch. 720, para. 550/4 (Smith-Hurd Supp.1997); Ind.Code Ann. § 35-48-4-11 (Burns 1994); Iowa Code Ann. § 124.401 (West Supp.1997); Kan. Stat. Ann. §§ 65-4105, 65-4162 (Supp.1996); Ky.Rev.Stat. Ann. § 218A.990 (Michie 1991); La.Rev.Stat. Ann. § 40:966 (West 1992); Me.Rev.Stat. Ann. tit. 22, § 2383 (West 1992); Md.Code Ann. art. 27, §§ 279, 287 (1996); Mass. Gen. L. Ann. ch. 94C, § 34 (West 1997); Mich. Comp. Laws Ann. §§ 333.7403, 333.7404 (West 1992); Minn.Stat. Ann. § 152.027 (West Supp.1997); Miss.Code Ann. § 41-29-139 (1993); Mo. Ann. Stat. § 195.202 (Vernon 1996); Mont.Code Ann. § 45-9-102 (1995); Neb.Rev.Stat. § 28-416 (1995); Nev.Rev.Stat. § 453.336 (1995); N.H.Rev.Stat. Ann. §§ 318-B:2, 318-B:26 (1995); N.J.Rev.Stat. Ann. § 2C:35-10 (West 1995); N.M. Stat. Ann. § 30-31-23 (Michie 1997); N.Y. Penal Law § 221.05 (McKinney 1989); N.C. Gen.Stat. §§ 90-94, 90-95 (1996); N.D. Cent. Code § 19-03.1-23 (Supp.1997); Ohio Rev.Code Ann. § 2925.11 (Baldwin 1997); Okla. Stat. Ann. tit. 63, § 2-402 (West 1997); Or.Rev.Stat. § 475.992 (1995); Pa. Stat. Ann. tit. 35, §§ 780-102, 780-104, 780-113 (1993); R.I. Gen. Laws § 21-28-4.01 (Supp.1996); S.C.Code Ann. § 44-53-370 (Law. Co-op.1985 & Supp.1996); S.D. Codified Laws Ann. § 22-42-6 (Supp.1997); Tenn.Code Ann. § 39-17-418 (Supp.1996); Tex. Health & Safety Code Ann. § 481.121 (West Supp.1997); Utah Code Ann. § 58-37-8 (Supp.1997); Vt. Stat. Ann. tit. 18, § 4230 (Supp.1996); Va.Code Ann. § 18.2-250.1 (Michie 1996); Wash. Rev. Code Ann. § 69.50.401 (West Supp.1997); W.Va.Code §§ 60A-1-101, 60A-2-204, 60A-4-401 (1992); Wis. Stat. Ann. §§ 961.14, 961.41 (West Supp.1996); Wyo. Stat. §§ 35-7-1002, 35-7-1014, 35-7-1031, 35-7-1039 (1997).

Although all of the above statutes prohibit the possession or use of marijuana, the penalties vary among jurisdictions. Most jurisdictions treat the possession or use of small quantities of marijuana as a misdemeanor or a petty misdemeanor. A few states, however, treat it as a violation rather than as a criminal offense.

Alaska Stat. §§ 11.71.060 and 11.71.190 (1996) proscribe the possession or use of small quantities of marijuana; however, the Alaska Supreme Court has held that the right to privacy in the Alaska Constitution protects the right to possess and use marijuana in the privacy of one's home. See Ravin v. State, 537 P.2d 494 (Alaska 1975); discussion infra part III.C. Nevertheless, Alaska’s right to privacy does not protect the possession or use of marijuana in public. Ravin, 537 P.2d at 511; Belgarde v. State, 543 P.2d 206, 207 (Alaska 1975). Thus, even in Alaska, the possession or use of marijuana is proscribed, at least to a certain extent.

We note that, by statute, some states permit the possession and use of marijuana for medicinal purposes. See, e.g., Cal. Health & Safety Code § 11362.5 (West Supp.1997); Mass. Gen. L. Ann. ch. 94C, § 34 and ch. 94D, §§ 1-3 (West 1997). However, the possession and use of marijuana for such purposes is not before us in the present case. See infra note 12.

6

. We note that, because of the adoption of article I, section 6, Baker and Renfro are not controlling on the right to privacy issue. However, they still constitute valid authority on the presumption of constitutionality.

7

. One delegate to the Constitutional Convention stated:

There was some mention that I previously discussed a case-by-case method, as filling out and giving meat to the language of the committee proposal....

So it was the committee’s intent to broaden this, broaden it by not laying out specifics; we have to leave that to the courts, I believe, and also to the legislature because I think the proposal says that the legislature shall look at it and begin the filling-in process. And each of us individually may at some time require circumstances where we would want the right to privacy, and it'll be there in the Constitution in a separate section, not tied in or colored by the criminal procedure side, but a separate section that deals with civil rights. And you’ll go into court and hopefully give meat to this provision.

1 Proceedings, at 361 (Delegate Weatherwax) (emphases added).

8. One delegate, Delegate Hale, indicated that she had originally proposed the privacy provision for the purpose of legalizing marijuana. 1 Proceedings, at 356-58, 366; 2 Proceedings, at 639-40. However, her views were hotly debated by the other delegates. Thus, regardless of what Delegate Hale’s personal interpretation of the privacy provision might have been, it was an interpretation that was not shared by her fellow delegates. See infra quotations in text.