Against a New Constitutional Convention for New York State

October 31, 2017

In a week, we will be voting to decide whether to call a constitutional convention for the State of New York. The powers of the Convention would be wide open. Before going further, it is important to look at the provisions for calling the Convention:

in case a majority of the electors voting thereon shall decide in favor of a convention … the electors of every senate district of the state … shall elect three delegates at the next … general election, and the electors of the state voting at the same election shall elect fifteen delegates-at-large.

Let me repeat one crucial phrase, “the electors of every senate district of the state.” The New York Senate as we all know has been gerrymandered for many years to maximize Republican control of the Senate. Although the increasingly blue hue of our state politics has forced them into coalition with the so-called Independent Democrats, the NY Senate remains much more conservative than the Assembly, and not fairly representative of the people of the State. Everyone should be represented. Everyone’s ideas count. But everyone should be represented fairly and their ideas should be considered by a body that represents us fairly. Since the Convention would be shaped only by senatorial districts plus a few delegates chosen at large, I would not be willing to trust our future as a state to such a body.

You may have repeatedly heard me talk about gerrymandering. Many of us who have been fighting gerrymandering for years have continued to fight it regardless of who is the temporary beneficiary. Republicans should not have to accept a convention gerrymandered toward Democrats any more than Democrats should have to accept a convention gerrymandered toward Republicans, as it is now. Frankly, that alone determines my vote. End gerrymandering first and than we can talk about constitutional change.

The current New York State Constitution was adopted in 1938. In other words it was adoped near the end of the Great Depression. As such it had important provisions with the great mass of us in mind, not just the one-tenth of one percent who often think everything should favor them. That too makes it important to protect this Constitution. Of course it is not perfect. And when we get rid of gerrymandering, we may be able to fix it. But now losing this Constitution would be too dangerous.

Moreover, much that is wrong with this Constitution has nothing to do with its language and everything to do with the interpretation of the Courts. Just as I would not jettison the U.S. Constitution because of Scalia’s misreadings, so I would not jettison the 1938 New York Constitution because the courts screwed it up.

To the extent that some people believe some provisions could be improved, it would be sufficient to propose those specific improvements to the people of this state without using them as a Trojan Horse to threaten the entire document.

If any more reasons are needed, there is no reason to believe the delegates will be a step up from the legislature which already has the power to propose amendments. And I would be much more comfortable if the powers of any convention elected to revise the Constitution were limited to matters carefully defined in advance so that we could know how large a threat they pose.

I believe the people of this state would be wiser, safer and better off voting no.

— This commentary was broadcast on WAMC Northeast Report, October 31, 2017.

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Should We Have a New National Constitutional Convention?

July 11, 2017

There have been calls for a new national constitutional convention. They are generally cast as calls for a convention to do something specific, rather than open-ended authority to propose changes. There is an argument about whether those calls fit the constitutional definition of state initiated calls for a convention and what such a convention might do, But clearly many states think they are valid and have proposed a new convention. Indeed such calls may be only a few states shy of the required two-thirds of the states, depending on how many calls are deemed valid. So I think we should talk about it. I’ll spare you the technical argument and focus on the issues.

It should be noted that small states have disproportionate voting power in the amendment process because it is based on the number of states agreeing to amendments, not the number of votes in the states which agree.

Conservative proposals to amend the Constitution suggest that they’d use a national convention to repeal the Supreme Court’s decisions on social issues like abortion, marriage, gay rights, religion, prayer, flag desecration and segregation. And some conservative proposals would cripple the national government with states’ rights amendments, like a balanced budget amendment, repeal of the income tax, mandatory revenue sharing, and letting states veto increases in the national debt. Other conservative efforts have included reinstituting state legislative selection of U.S. Senators, and reversing progress on school integration.

Liberals can use conservative proposals to scare liberal state legislatures away from calls for a new national convention, or they can try to scare conservative state legislatures off with liberal proposals.

Liberals proposals focus on equal rights and equal votes such as the Equal Rights Amendment, abolition of the electoral college, full representation for the District of Columbia,  and overturning Citizens United. There’ve been calls to abolish the death penalty. Liberals should also fight for a Black Lives Also Matter Amendment to hold public officials responsible for the harm they do and overturn exemptions and immunities that leave decent, unarmed Americans lying dead on our streets with no one “responsible.” Liberals should fight to remove rules that allow prosecutors to ignore constitutional obligations of fair play, rules that  immunize them from any responsibility for vicious and discriminatory behavior.

These very different visions reflect both core moral commitments of each side and tactical considerations. Neither liberals nor conservatives accept the bona fides of each others’ proposals. Worse, competing interpretation of the provisions of the Constitution for calling a new convention could deepen conflict over the legitimacy of whatever a convention produced. And I doubt we’d end up with a better country.

Nor does the problem ends there. The original substitution of the Constitution for the pre-existing Articles of Confederation “illegally” ignored the rules for change spelled out in the Articles. So suppose populous states now similarly announced they were forming a government to go into effect when a majority of the public agrees – a possibility with some academic support. By contrast to continued conservative admiration for Confederate traitors who made war on the U.S., that would be a relatively honorable route toward a new Constitution.

But the larger point is that a conservative attempt to make major changes followed by a strong liberal response could br dangerous. Competing constitutions once led to violence in Rhode Island and in Kansas. Violence, as we’ve been discovering in many countries in recent decades threatens democracy whenever armed groups refuse to put down their arms.

So I’m not confident that a new convention would improve the Constitution, solve problems among or unite us. I don’t think it’s a good direction to travel.

— This commentary was broadcast on WAMC Northeast Report, July 11, 2017.

 


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