What do the Eight Proposed State Constitutional Amendments Tell Us?

Professor's Piece: 

What do the Eight Proposed State Constitutional Amendments Tell Us?

by

Gerald Benjamin*

 

The New York state legislature proposed eight constitutional amendment in 2013 – eight! – far more, a NYPIRG study showed – than in any recent year.

 What explains this seeming new found legislative enthusiasm for state constitutional change? Surely it’s not an interest in giving serious attention to the basics of state government, a look at the proposed amendments shows. Rather, their substance indicates just the opposite: that the New York constitution is in need of major overhaul.

First a fifty-word primer on the New York constitutional change process:  Because constitutions protect fundamental rights and define core governmental structures and processes, they are made harder to change than ordinary laws;  amending the New York constitution requires passage by two separately elected legislatures and approval by voters in a statement referendum; the governor has no formal role in this process.

Here’s what these eight amendments are about:

·       State legislative and congressional redistricting

·       Authorizing casino gambling

·       Land exchanges in the Adirondacks (2)

·       Altered detail on handicapped veterans preferences for civil service jobs

·       A later retirement age for state judges

·       Extending for another ten years an exception  for municipalities from borrowing limits for sewer projects

·       Allowing bills to be delivered to legislators desks in electronic rather than hard copy

Seven have nothing to do with the fundamentals of government.

 Bonus points for veterans - fine, but in the constitution?

 Modernizing the way the legislature does business: a good idea, but why does it require constitutional change?

 Yes, eighty or ninety is the new seventy; but shouldn’t we be able adjust judges retirement age, if we are to have one at all, by ordinary law? 

Then there are the U-turns: leaving a limit in the constitution, and then undoing it.

We first allowed borrowing past the constitutional limit for local sewer systems in 1963, and then extended it every decade thereafter.  Why the borrowing limit at all, if we are bypassing it? Why the time limit, if we keep extending it?

 We have eviscerated the 19th century gambling limit so much over the years - we have already allowed so much gambling -- why don’t just accept reality and take this dead letter law out of the document entirely? Now that would be a serious improvement! 

It has taken over a century for 200 families with land claims in the constitutionally forever-wild Adirondacks to work out a deal with the state to clear things up; now they have to wait for voters in Brooklyn, Montauk and Chautauqua to vote on whether the settlement suits them.

 A mining company in Willsboro, also in the Adirondacks, has made a deal with the state to exchange land , so that it can stay in business while environmental values are still served.  Sounds like a nice compromise, but will its merits be at all known to New York voters when they are asked to say “Yea” or “Nay” this coming November.

Redistricting is a  different story: it is in fact about the fundamentals of government. But here we can learn from history. The legislature has never asked the voters to limit its power through constitutional change, and redistricting is no exception.

This amendment is a legislative wolf in reformer sheep’s clothing. Final power to draw the lines will remain with the legislature, which will now also be able to claim that reform goals were met .

New York has had four constitutions. At moments of political strength, advocates at constitutional conventions inserted their core policy goals in the document. The idea was to remove these from the easy reach of the legislature.  Yet as the history of both borrowing limits and the gambling prohibition shows, where there is political will, constitutional limits are eroded.  Cases are brought. Judicial interpretation allows the seeming prohibited.  Legislatively originated amendments are passed, two hundred and twenty of them since the adoption of the current constitution in 1895.

In place after place the state constitution includes substance that need not be in a constitution.

 In place after place the document simply does not mean what it appears to say.  

Most importantly, even as state government continues to be regularly condemned for ineffectiveness, those with particular interests to protect resist giving the document a thorough review and revision. They fear, however unreasonably, that such a process might count them out. 

So that’s what are this year’s eight proposed amendments are about:  altering policy detail better suited to ordinary law making, and the appearance of reform without real reform.  Six will be on this year’s ballot; two – one of these on redistricting  – will appear next year.

Most are not objectionable.

But the real question that these proposals cause us to ask is: “Why are we making ourselves do this, anyway?”  Instead, how about some attention to the bedeviling structural flaws in our state and local governmental systems?  Chief Justice John Marshall’s overlooked advice comes to mind: “We must never forget that it is a Constitution we are expounding.”

 

*Distinguished Professor of Political Science – SUNY New Paltz

 

 

 

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