Who is Afraid of the Constitutional Convention? The Rejection of Constitutional Change in the State of New York

–Eleonora Bottini, Sorbonne Law School, Visiting Professor at Columbia Law School

“God forbid we should ever be twenty years without […] a rebellion”. –-Thomas Jefferson

By voting massively “no” to Constitutional Proposal n. 1 on November 7^th 2017, the people of the State of New York have rejected the opportunity to rethink and rewrite their constitution. Following the principle, dear to Jefferson, that “one generation cannot subject to its law the future generations”, the Constitution of the State of New York – like 14 others in the United States – requires public authorities to submit to the voters a total revision of it every twenty years. According to Article XIX of the Constitution, the people must periodically answer the following ballot question: “Shall there be a convention to revise the constitution and amend the same?”. Constitutional conventions were frequent in the State of New York during the 18^th and 19^th centuries, and this constitutional custom was subsequently embedded in the text in 1846. If approved, the constitutional convention (or “con-con” as it has been called), having been elected in 2018 and convened in 2019, should have submitted the new text to popular approval in 2020.

But the people of the State of New York refused it by an overwhelming 83%. Such a spectacular result was unexpected, even though a positive vote was unlikely given the most recent polls.

In the aftermath of the results, the debates are of great interest. They have blurred the traditional separations between Republicans and Democrats, as well as the traditional division lines between progressives/liberals and conservatives. Unexpected alliances have been created. Traditionally opposed camps have been reunited by the “no” campaign: unions and workers’ organizations with Republicans and conservative associations, such as the NY State Rifle and Pistol Association defending the right to own firearms. Even more surprisingly, radically divergent groups such as Planned Parenthood (advocating for the right to abortion) and the NY State Right to Life Committee (a pro-life organisation) fought alongside each other against a convention. Conversely, groups that have traditionally defended the same liberal and progressive values ​​have been divided by the campaign: while the League of Women Voters of the State of NY has taken a stand for the con-con, the New York Civil Liberties Association Union has opposed it.

Representative democracy is often described as being in the midst of a crisis; greater popular participation in political life is regularly claimed. In this climate, holding a constitutional convention may seem the perfect way to give the people back the power and control on such a foundational text. In this context, one can be astonished by the electorate so sharply declining this opportunity.

The idea that the constituent power is a once-in-a-generation opportunity to influence public life was at the heart of the very active campaign in favor of the con-con. The reasons for such an overwhelming negative result must be sought in the debates that preceded the vote, all revolving around hope and fear.

Campaigning for Hope

Constitutional scholars have pointed out many defects in the New York Constitution[1], with arguments typical of the criticisms of representative democracy that can be found also in Europe. First of all, a new balance of powers between the executive and the legislative was needed, in favor of the State legislator. Secondly, the problem of political corruption was at the heart of the debate, especially in light of the recent scandals involving both parties in Albany. Finally, the lack of renewal of the political class was undoubtedly the most powerful argument: the number of the terms is not limited by the Constitution and the current gerrymandering does not allow real changes in the majority, so that around 90% of politicians usually get re-elected.

Why not simply adopt constitutional amendments instead of the more complicated and expensive process of the con-con? The answer is related to the general mistrust for the ruling class: without a convention, the amendments have to be proposed and adopted by the current elected officials, which largely reduces the chances of those issues being addressed. This argument was reinforced by the unwillingness to respect the ethical standards already existing in the legislation: the Joint Commission on Public Ethics, for example, has not been attributed enforcement nor sanctioning powers.

Another crucial aspect of the campaign in favour of the convention concerns gender issues. The centennial of the women’s vote – celebrated the day before Election Day, on November 6^th – was used as a momentum for the growing need for women to engage more in politics, one year after the defeat of Hillary Clinton. The delegates’ election could have been an opportunity for a more diverse and representative convention, women having represented only 2.4% of the New York delegates in the last 120 years. In addition, the possibility of the US Supreme Court overturning Roe v. Wade after the nomination of the conservative Justice Neil Gorsuch was reason for concern and for wanting to inscribe reproductive rights in the State Constitution.

Proponents of the constitutional convention thus wanted to seize an opportunity that they felt unique. In vain: the negative campaign – having received more the three times the funding of the “yes” campaign – gradually gained the upper hand in the polls and finally won the vote.

Diffusing the Fear

The arguments against the constitutional convention are essentially based on fear and defeatism. This can be explained by the general political climate and especially by the populist turn of the last two decades, and more recently referendums in Europe such as Brexit and Donald Trump’s victory.

One of the most frequent fears has been attached to the electoral process for the delegates of the convention: not only they would have been elected with the same rules as the current legislators, leading to a composition very close to that to the actual State’s legislative chambers. But fear was also related to the Supreme Court’s decision of 2010 Citizens United v. Federal Elections Commission and the concrete possibility that the lobbying of special interests and big money would influence the convention. In the end, this was presented as yet another way of excluding the people from the exercise of power. The slogan of the main site for the “no” campaign was “New York political insiders are planning a party … and you are not invited”. What could be presented as an opportunity for popular participation in the drafting of a fundamental text – as was the case in movements such as Indignados in Spain or Nuit Debout in France, both also critical of representative democracy – is on the contrary singled out as another demonstration of the great divide between the political elite and the “real” people.

The risk seemed great of spending large amounts of public money without achieving the desired changes; and even worst, to reach a setback for rights and freedoms. The current Constitution recognizes social rights since the convention that followed the New Deal. This explains the opposition of the unions to the convention. Several aspects of the New York State Constitution considered to be of primary importance – public education, social protection of workers and public health, pensions and housing policies, the protection of the environment through the Forever Wild Clause and the separation of powers – have been catalogued as “at risk” in the event of a constitutional convention. Yet no concrete proposal had been made in that direction: the only proposals for the future convention, on the contrary, advocated greater protection of individual rights. Hypothetical measures that could have limited rights and freedoms were everywhere in the campaign arguments but cannot be found anywhere else: tax cuts for billionaires; abolition of workers’ rights, social security and pensions; reduction of funding for public transport. The complete freedom of the con-con, by which everything would have been “on the table”, has driven the fear that any change would necessarily be for the worse.

Finally, an argument of political opportunity has been made: the rejection of another movement wanting instead to promote a constitutional convention at the federal level. Born during the Obama’s presidency, Citizens for Self-Government is a far-right movement supported by the Southern conservative States, trying to reach the number of states required by the US Constitution to convene a constituent assembly (today 34). Although this movement slowed down under the new presidency, a constitutional convention for the State of New York could have, according to some, revived the desire to rewrite the federal Constitution in a very conservative sense.

The reformers can, however, console themselves with the adoption of Constitutional Proposal n. 2, allowing judges to reduce or revoke the pension of a public officer convicted of felonies involving breach of public trust. This amendment, while going in the direction of ethics concerns, has nonetheless been produced by a typical mechanism of representative democracy, prepared by the legislators and simply endorsed by a popular vote. Is the myth of the constituent power of the People doomed to remain a myth that applies only to the “founding fathers” of a bygone era?

Suggested Citation: Eleonora Bottini, Who is Afraid of the Constitutional Convention? The Rejection of Constitutional Change in the State of New York, Int’l J. Const. L. Blog, Nov. 22, 2017, at: http://www.iconnectblog.com/2017/11/who-is-afraid-of-the-constitutional-convention-the-rejection-of-constitutional-change-in-the-state-of-new-york

*An extended version of this post can be found in French at JP Blog. Le Blog de Jus Politicum.

[1] Peter J. Galie, Christopher Bopst, Gerald Benjamin (eds), New York’s Broken Constitution. The Governance Crisis and the Path to Renewed Greatness, SUNY Press, 2016; Rose Mary Bailly, Scott N. Fein (eds), Making a Modern Constitution: the Prospects for Constitutional Reform in New York, New York State Bar Association, 2016.