This upcoming election day, New York State voters will be presented the option of convening a constitutional convention (affectionately, a “con-con”) with the end-goal of amending parts of the state’s constitution. Rooted in a 19th Century addition to the state’s highest law—whose implementation in 1777 predates the ratification of the United States Constitution by 12 years—is the question presented to voters of whether to hold such a convention to amend parts of state law. Posed to New Yorkers every twenty-years, a motion to convene is determined with a simple majority yes or no vote by the citizens of New York. The last time that voters said yes to a convention was in 1967, with other failed motions in 1987, as well as failure after a special vote in 1997. November 7 poses a long awaited chance for real change to reach this state’s government.
The right to convene a convention, to democratically decide decisive action on issues left unaddressed by the governing body of the state—such as abortion rights, the legalization of marijuana, home rule for the different segments of the state, and changes to the state court system—is seemingly innocuous. After all, as John Locke said, “The legislative and executive power used by government to protect property is nothing except the natural power of each man resigned into the hands of the community.” If this is to be believed, that a democracy is the collectivization of power and gains its legitimacy through consent of the governed, the referendum on holding a constitutional convention to remake law could be viewed in two ways: approval to hold a convention constitutes a form of active democracy—a way in which people can take issues from the paws of inactive lawmakers into their own grip. Alternately, approval could signify a lack of faith in the democratic process and as a populist consensus that lawmakers and the system itself are failing—or at least underserving—their constituents. The upcoming vote, though it presents an unparalleled opportunity for reform, is not without detractors amongst the ranks of Albany leadership, trade and teacher’s union representatives, as well as a straggling few fiscal conservatives and constitutional purists.
There are three main arguments circulating against voting yes on approving a convention, all of which revolve around an overarching desire to maintain the status quo. Some opponents cite a desire to retain constitutional purity as a reason to vote no. Claiming that a yes vote will fundamentally change the fabric of New York State’s body of law, these objectors neglect mention that at both the state and national level there is built into the constitutional system the elasticity of the amendment process. To their argument that a convention and resulting changes will shape the future law of the state for the worse, the danger lay more in what issues remain unresolved due to a failure to convene or to ratify proposed amendments, rather than in the holding of a convention in the first place.
The first reason against the convention leads almost directly into the second leading argument against it: if we open the constitution to amending, then it is possible that certain hard-won rights may be vulnerable to attacks. This argument lacks grounding in an understanding of the history of American legal traditions, which overwhelmingly show the granting of new rights as opposed to the stripping of them. In the context of threatened rights that may arise from this convention, the most cited example is that of teacher’s pensions; however, a number of commentators on this issue believe that public pensions are in no particular danger of disappearing.
The final argument, and perhaps the most valid of the three, is rooted in concern regarding the delegates that would be present should the convention happen. The worry is that when voters are choosing delegates to represent them at the convention, lawmakers will be disproportionately included, along with unions and special interest groups, thereby carrying over issues already riddling government processes in Albany such as corruption, inefficiency, and inaction, and bringing these same struggles to the convention. This is a fear not so easily dispelled—concern over who could be represented or left out in the convening of a constitutional convention is valid; however, the remedy to this fear is awareness in voters when choosing their delegates. Though lawmakers and special interests likely will appear in some number, their influence over potential proceedings can—and should—be limited through informed delegate choice.
Potential political gridlock is to the American two-party system as MTA delays are to the morning commute. Both gridlock and train delays plague daily the lives of massive numbers of residents; however, one of these problems, by-now synonymous with life as a New Yorker, is staring a potential starting solution in the face. Albany is mired in political gridlock and beholden to addressing certain issues, while steering clear of others that matter to New Yorkers. Voting yes to hold a constitutional convention will return power to We the People and give a needed signal to lawmakers that voters are serious about their rights.