The New York State Constitution provides that the electorate be given the opportunity to vote on the following question at least once every 20 years: “Shall there be a convention to revise the constitution and amend the same?” It will be on the ballot once again this year when New Yorkers head to the polls on Nov. 7.
The issue is an important one because the Constitution, as a foundational document, is the repository of all rights, privileges and immunities deemed by the State of New York to be fundamental in nature. Unlike legislative acts and agency regulations, they can only be modified or undone by constitutional amendment.
It’s important to bear in mind that even if voters approve a constitutional convention next month, they retain the final say on whether the document thereby produced is ultimately adopted. Since first presented with the option 150 years ago, voters have approved a constitutional convention only five times, and, on four of those occasions, they rejected the document settled upon by delegates.
With Election Day approaching, and some forecasting a close vote, lobbying on both sides of the issue is intensifying. The New York State Bar Association is among the staunchest advocates of a constitutional convention.
State bar’s interest
By its own admission, however, the lawyers organization is primarily motivated by a desire to effect a restructuring and reorganization of the state’s court system, something, it asserts, will likely never happen otherwise because of competing political interests in the Legislature. The need to reorganize the courts has been obvious for decades. Consider, for example, that New York has 11 trial-level courts, the most in the nation. California, by contrast, with almost twice the population, has a single trial court system. As just one of innumerable consequences of such disparities, the state bar notes that a domestic violence victim seeking protection and a divorce could be required to appear in three different New York courts to secure the relief she seeks.
In a 37-page report released in April, the lawyers organization acknowledged several “thoughtful” arguments against holding a convention. Nonetheless, it opted to support convening one in the belief that “We the people can be trusted to make beneficial changes to our government.” In reality, however, those “thoughtful” arguments are sufficiently weighty to tip the scales against authorizing a convention.
Since the delegate selection process is elective, with a high threshold for ballot access, and an obvious susceptibility to special-interest money, the winners are more likely to be seasoned politicians and union leaders than the ordinary private citizens conjured up by the phrase “We the People.” Consider, for example, that at the last constitutional convention, in 1967, Assembly Speaker Anthony J. Travia was its president and New York City Major Robert F. Wagner the first vice president. Moreover, the majority of delegates were holders of political office either by election or appointment. Given the gravity of constitutional change, and the enormous stakes for the competing interests involved, it’s reasonable to anticipate that, if approved, the convention would be even more intensely political than the day-to-day operations of the state’s notoriously dysfunctional Legislature.
This becomes especially problematic since the entire Constitution would be up for grabs and, therefore, in the sights of monied interests. The potential for unanticipated mischief and even radical change is sufficiently real that opposition to holding a convention transcends traditional political loyalties.
Among the concerns most frequently expressed are the fate of pension rights for public employees; various rights relating to labor generally, such as union membership, collective bargaining and worker’s compensation; the “forever wild” protection for the Catskill and Adirondack Parks; and the requirement that the state “aid, care and support” the needy. While New York’s liberal pedigree makes radical change in any of these areas unlikely, neither can it be ruled out with certainty.
Opposition from a more conservative political spectrum includes concern that abortion rights in New York, already more sweeping than mandated by Roe v. Wade, could be expanded even further. There is also a fear that any form of aid to religious schools, severely limited as it is, could be eliminated altogether.
A constitutional convention would carry a high price tag for taxpayers, with estimates varying wildly from $50 million to $350 million. And, of course, it could all be for naught if the document proposed is ultimately rejected by voters.
Finally, the state’s Constitution can be amended by a process initiated in the Legislature, with the resultant proposal thereafter presented to voters for their approval. In fact, the current document, originating in 1894, has since been amended over 200 times.
While the prospect of a constitutional convention may be facially enticing, it’s too risky for too many people, too expensive for taxpayers, and, in the final analysis, unnecessary.
[Daniel Leddy’s column appears each Tuesday on the Advance Editorial Page. His e-mail address is email@example.com. Follow him on Twitter at twitter.com/LegalHotShots.]