Opinion

Dueling experts: Should New York hold a constitutional convention?

By Mark Levine vs. Richard Brodsky |  

October 24, 2017 |  

Members of New York's first constitutional convention read the newly ratified constitution to the public in 1777. (New York Public Library)

When New Yorkers go to the polls next month to cast their ballots for a variety of local elected offices, they’ll also have the option of answering a few questions about the state constitution.

And this year, in addition to a couple of proposed amendments, each ballot will present a far more sweeping proposal: “Shall there be a convention to revise the constitution and amend the same?”

It’s a question that the state constitution itself requires to be asked every 20 years, giving citizens the chance to open up the document to revisions and updates, if not a complete overhaul.

RELATED: New York’s “incoherent, redundant, embarrassing” state constitution

Polls show that more voters support a constitutional convention than oppose it. Proponents say a “yes” vote would allow for excising outdated language, but also, and perhaps more importantly, to consider a number of improvements, including new measures to truly clean up Albany.

But it’s not so simple as whether or not the average New Yorker thinks it’s time to fix the state’s fundamental governing document. Leading the charge against a constitutional convention are labor unions and other groups who don’t want to risk changes to their cherished constitutional protections, including a right to organize and the inviolability of pension contracts. Millions have been spent, primarily by the “no” side, and with millions more in spending to come. The opponents have already been gaining ground in the polls.

So with the vote approaching in a few weeks, we turned to experts to lay out the pros and cons of a state constitutional convention.

New York can no longer rely on the White House to safeguard our civil rights

Richard BrodskyBy Richard Brodsky

With all due respect to New York City Mayor Bill de Blasio and assorted county executives across the state, the only historic vote you could cast on Nov. 7 is whether to call for a state constitutional convention. As it reads on the ballot:

“Shall there be a convention to revise the constitution and amend the same?”

This is not chopped liver.

State government controls most of what matters in our daily lives: schools, health care, transportation, environment, reproductive freedom as well as cultural and social institutions. And there is monumental dissatisfaction with how things are going.

Every 20 years we get to vote on whether to make things better. If the people vote “yes,” we elect delegates to rewrite the constitution and, so the theory goes, update and improve our condition. It’s time, folks. From ethics reform to personal liberty to ending the corrupt but legal campaign finance system, we can do better.

There’s a new and compelling reason to vote “yes,” beyond the inherent goodness of the proposals. Since the Civil War, we have become used to the federal government championing, mostly, the expansion of personal rights and liberties. The U.S. Supreme Court – desegregation and equal protection for women – and the enlightened actions of Congress and the president – civil rights laws and equal pay – eventually wrote our bedrock freedoms into the social fabric of our country. No more. Under President Donald Trump, the policies and doctrines protecting us are being swept away. The feds are now rolling back these hard-won advances. We need to enshrine them in our state constitution.

Since the Civil War we have become used to the federal government championing, mostly, the expansion of personal rights and liberties. The feds are now rolling back these hard-won advances.

Take gender equality and identity. Under Trump, the federal government has become an aggressive enemy of equal pay and affirmative action, not to mention transgender rights. We need to protect everyone in the state constitution.

Take our bizarre and corrosive system of campaign contributions, which makes criminal bribery schemes look like a minor problem. There will be no system of public campaign finance unless New Yorkers require one in the state constitution.

Let’s take a deeper look at the issue of reproductive freedom. Our federal constitutional protections are grounded in case law, not in the explicit words of the Constitution. The U.S. Supreme Court found that we enjoy an implicit right to privacy, inherent in the Constitution, but never explicitly mentioned. That is the basis for limiting government restrictions on reproductive choices. That doctrinal foundation has been under constant attack, and with Trump’s appointment of Neil Gorsuch, we may be at a point where a majority of the U.S. Supreme Court will undo Roe v. Wade in practical and theoretical terms.

RELATED: Why foes of a con con have the upper hand

We need a provision in the New York Constitution that guarantees reproductive freedom per se, not as a derivative of a right to privacy. We also need a stand-alone right to privacy. Try these:

·  Article I, §19 [Right To Reproductive Freedom] The Legislature may not enact, nor the governor sign, any law that unreasonably restricts the right of a woman to full and free control over reproductive decisions.

·  Article I, §19. [Right of Privacy] The right of each person to a reasonable expectation of privacy shall not be infringed.

These amendments make sense on their own, and as a bulwark against the social reactionaries now running the federal government.

There’s more: A right to higher education; a right to a clean and healthy environment; limits to corporate giveaways and the corruption that follows them; and reform of the judiciary. The state constitution is where all this resides. You want to fix things, fix the constitution.

It’s almost a no-brainer, except there are plenty of thoughtful and intelligent folks who aren’t convinced.

Their concerns over calling a constitutional convention in 2017 are a function of the successes of past conventions. In 1938, the constitutional convention rewrote the document to protect workers, the poor, public health, schools and lots of very important stuff. Some fear a convention would jettison these important rights. The fear that a 2017 convention would be a vehicle for reactionary policies is, for some, strong enough to have otherwise solid citizens oppose the convention.

These concerns are real and worthy of respect. But they are not dispositive. The convention process has built-in protections against bad outcomes. Nothing a convention might want to do, or actually propose, can become part of the state constitution without the consent of the people. New York voters have to approve any change to the state constitution. The voters are comfortably pro-choice, pro-worker, pro-justice pro-fairness, pro-education, pro-environment and progressive. Voters will resoundingly disown a runaway, reactionary convention.

That’s not to concede that a convention would actually veer away from the fundamental views of the voters. These same voters will elect the delegates, whose positions will be known before they are selected.

Popular control of the election of delegates and popular control of the approval process are our ultimate guarantee that good things will flow from a convention.

In fairness to those still unconvinced, there are things to be concerned about. Money still has undue influence in elections. The flaws in campaign finance laws and election laws are not yet fixed. It will take enormous work and persuasion to settle the hundreds of issues that a convention would consider.

But that work can be done as successfully in 2017 as it was in 1938.

This is not an easy time to proclaim faith in the people and democracy. The counsels of cynicism and distrust fall trippingly from the tongue. The despair and fear that dominate so much of public life are easily embraced. But our history as a nation and a state and as communities teaches otherwise.

We are called upon to do right by our neighbors and ourselves, as earlier generations answered the same call. An abiding faith in the people requires us to embrace this opportunity. The need is clear: Our institutions need revision and reform. The mechanism is before us. The risks are manageable. The stakes are enormous. Do the right thing.

Richard Brodsky is a former assemblyman who serves as a senior fellow at both Demos and New York University’s Wagner Graduate School of Public Service.

A constitutional convention would be a grave risk for progressives

Mark LevineBy Mark Levine 

The most consequential vote New Yorkers have on Nov. 7 might not be for a political candidate, but rather a “yes” or “no” answer to a 13-word question:

“Shall there be a convention to revise the constitution and amend the same?”

It’s a question required by the state constitution to appear before voters every 20 years. Should a majority choose “yes,” it will kick off a multiyear process, starting with election of delegates in 2018, followed by a convention in which changes to our state’s foundational document would be drafted.

There is no doubt that our constitution is in need of some improvements. Enshrining a woman’s right to choose, enacting true campaign finance reform and making voting more accessible are just some of the badly needed changes to our state government.

But the arcane rules that would govern the selection of delegates for a convention pose a grave risk for progressives. The vast majority of delegates would be selected along the lines of existing state Senate districts – a hypergerrymandered map drawn to the advantage of conservative candidates. And the election process would be highly vulnerable to a flood of outside funding from big money interests around the nation – groups likely to have a far right-wing agenda.

For all its flaws, New York’s current constitution has better protections than many other states for workers, the environment and low-income people.

A likely chief culprit, billionaire industrialist brothers Charles and David Koch, have already poured vast millions into advancing conservative legislation at the state level across the country. The election of convention delegates in New York would be obscure and downright confusing for many voters – making the process incredibly vulnerable to outside forces willing to spend aggressively to push right-wing candidates.

For all its flaws, New York’s current constitution has better protections than many other states for workers, the environment and low-income people. If conservative-leaning delegates are given the option to rewrite these provisions, it would put vital safeguards at risk.

Among the constitutional components that might be threatened are:

  • A mandate to provide for social welfare needs, which is among the strongest of any state in the nation.

  • A requirement to fully fund public sector pensions.

  • Forever wild guarantees, which protect natural treasures in the Adirondack and Catskill mountains.

  • Employee rights to workers’ compensation and collective bargaining.

A convention is not the only way to amend our constitution. That means there’s a safer option for those of us looking to bring about positive changes in this critical document. The state Legislature can make amendments through legislation, and has done so 222 times over the decades.

RELATED: From the Supreme Court to a con con, labor is on the defensive

Yes, there are major political challenges to bringing about much-needed improvements to our constitution through the legislative process. But progressives should do the hard work of overcoming these obstacles rather than choosing the perilous route of a constitutional convention.

Not surprisingly, a wide array of progressive groups have lined up against the convention, including organized labor and groups advocating for the environment, senior citizens, LGBTQ New Yorkers, women’s rights and civil rights.

But this formidable coalition has its work cut out for it. Polls show the public is largely unaware of the weighty ballot question that they will be confronting on Nov. 7. Those telling pollsters they have an opinion are divided almost evenly between voting “yes” and “no.” Some voters might not even know to look on the back ballot sheet where the convention question will be located.

That means we have our work cut out for us in the waning days before voters go to the polls. All progressives should work hard between now and then to ensure that “no” wins, and that we avoid the risk of a giant step backward for our state.

New York City Councilman Mark Levine represents Upper Manhattan. 

 

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