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141 THe JurIsPrudenCe oF JusTICe edwArd H. nAkAmurA Ben lowenthal, esq. I never met Justice Nakamura. By the time I was born, he already was serving as a justice on the Hawai‘i Supreme Court. He passed away when I was in high school on Maui. I did not learn about him until I went to law school at the University of Kansas. A legal education in a particularly conservative state such as Kansas made me realize that Hawai‘i is one of the most liberal jurisdictions in the country. I discovered that—unlike many places—my home state has been a pioneer in long-term land use planning and conservation; that it has state legislation designed to assist workers, the unemployed, and less privileged members of society; that it has abolished the death penalty and was the first state to provide women with the right to opt for abortions. My discovery of our legacy of liberalism led me to Ed Nakamura. Nakamura was one of the brightest men from that near-mythic generation of Japanese Americans who were instrumental in transforming Hawai‘i from a territorial outpost in the Pacific to one of the most progressive states in the United States. He continues to inspire me. He was a proud, unapologetic, and self-described liberal in the face of the wave of right-wing politics and conservatism in the late 1970s and 1980s. He did not hesitate to speak out against abuses of power even when it meant going against his own colleagues and party. When I learned that Tom Coffman was going to tell the story of Ed Nakamura’s life, I jumped at the chance to help him. I tracked down all of Justice Nakamura’s one hundred fifty-nine published opinions from the Hawai‘i Supreme Court to see if he left any traces of a judicial philosophy. Granted, cases before the Hawai‘i Supreme Court often present narrow questions of law with almost no room for philosophical digressions, but several themes nonetheless emerge from his writings. An Independent Court and a Strong State Constitution When Ed Nakamura joined the Hawai‘i Supreme Court in 1980 the State of Hawai‘i was just twenty-one years old. Although it is in the same location on King Street, the Supreme Court of the State of Hawai‘i 142 Jurisprudence of Justice edward h. nakamura is a different institution from the Supreme Court of the Territory of Hawaii.1 Where Territorial justices were appointed by the president of the United States with the advice and consent of the United States Senate,2 the people of Hawai‘i through the state constitution determine the selection and retention of state supreme court justices, and more broadly exercise a degree of constitutional autonomy. The Hawai‘i Supreme Court is “the final arbiter of the meaning of the provisions of the Hawai‘i Constitution.”3 In other words, it is responsible for the authoritative interpretation of the constitutional and legal structure of the State of Hawai‘i. The Hawai‘i Constitution incorporates much of the Bill of Rights in the United States Constitution, but this does not mean that the rights guaranteed in the state constitution should be interpreted in the same manner as federal interpretations of the Bill of Rights. The Hawai‘i Supreme Court is free to interpret the Hawai‘i Constitution and state law as it sees fit. How the court goes about interpreting the constitution and laws depends on the justices themselves. Chief Justice William S. Richardson’s tenure over the court firmly established that it would not be deferential to federal interpretations of the United States Constitution. It ensured that the Hawai‘i Constitution is not a mere shadow of the Constitution of the United States.4 Nakamura shared this view. In part because he did not defer to the interpretations of federal courts, the fundamental law of Hawai‘i stands as an independent and dynamic source of rights.5 The most striking example among Nakamura’s opinions remains State v. Miyasaki, which Tom Coffman discusses extensively in his narrative of Nakamura’s life.6 Not only did Nakamura’s interpretations afford more protection to the accused than the Supreme Court of the United States was willing to permit, but his own views on the protections in the state constitution may have extended beyond the views of his fellow justices. In State v. Ortiz, the Hawai‘i Supreme Court vacated a decision by the Intermediate Court of...

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