Tag Archives: Constitutional Convention

Why a New York State Constitutional Convention is a VERY BAD idea and Must Be Defeated at the Polls in November

On November 7th 2017 there will be a simple question, with significant consequences on the ballot across the State of New York: Shall there be a convention to reise the constitution and amend the same?”

The constitution is a lengthy, a very lengthy document that is constitution, a bill of rights and by-laws rolled into one. It was written “on the fly” during the Revolutionary War; the framers, John Jay, Governneur Morris and Robert Livingston were iconic leaders of our nation; Jay was one of the authors of the Federalist Papers.  For two years they fled from city to city avoiding British troops writing our state constitution. (Read about the history of the New York State Constitution here)

The constitution underwent numerous additions over the years.

President Grant, whose reputation has recently been restored, made several speeches on the importance of the separation of church and state and the duty of the states to provide free public education. James G. Blaine, the Speaker of the House and a presidential aspirant proposed a constitutional amendment, that passed in the House, not the Senate, referred to as the Blaine Amendment,

“No State shall make any law respecting an establishment of religion, or prohibiting the free exercise thereof; and no money raised by taxation in any State for the support of public schools, or derived from any public fund therefore, nor any public lands devoted thereto, shall ever be under the control of any religious sect; nor shall any money so raised or lands so devoted be divided between religious sects or denominations.”

In 1894 New York State, in a constitutional convention, added the Blaine Amendment to the New York Constitution. The last constitutional convention, in 1967, proposed deleting the Blaine Amendment from the constitution, the change would have allowed the state to fund religious schools. The electorate defeated all the proposed changes.

You can read the entire NYS Constitution here.

If the question is approved elections would take place in the 63 Senate Districts,  three delegates per district and fifteen delegates state-wide. Each legislative body draws its own district lines, the democratic lines in the Assembly result in a 2/3 democratic majority, the Senate is almost equally divided between Democrats and Republicans. Under the Supreme Court decisions, Citizens’ United, there can be no limit on the funding of elections. Is it possible that hedge funds, or the Koch Brothers or friends of the Donald  would pour tens of million into the state to elect delegates favorable to their positions and additional millions the following year to influence the electorate? If you don’t,  I have a bridge for you to buy …

In 1936, at the height of the popularity of Franklin Delano Roosevelt, in a huge election sweep by FDR the electorate also voted to convene a constitutional convention. The progressive delegates made numerous additions to the constitution that were approved by voters,

One of which protected public employee pensions,

 After July first, nineteen hundred forty, membership in any pension or retirement system of the state or of a civil division thereof shall be a contractual relationship, the benefits of which shall not be diminished or impaired.

The constitution already provided for public schools,

The legislature shall provide for the maintenance and support of a system of free common schools, wherein all the children of this state may be educated.

Clearly prohibited the public support of schools “under the control or direction of any religious denomination.”

 Neither the state nor any subdivision thereof, shall use its property or credit or any public money, or authorize or permit either to be used, directly or indirectly, in aid or maintenance, other than for examination or inspection, of any school or institution of learning wholly or in part under the control or direction of any religious denomination, or in which any denominational tenet or doctrine is taught, but the legislature may provide for the transportation of children to and from any school or institution of learning

The 1938 changes require “aid, care and support of the needy,”

 The aid, care and support of the needy are public concerns and shall be provided by the state and by such of its subdivisions, and in such manner and by such means, as the legislature may from time to time determine. (New. Adopted by Constitutional Convention of 1938 and approved by vote of the people November 8, 1938.)

The same New Deal philosophy also required the “protection and promotion of health,”

 The protection and promotion of the health of the inhabitants of the state are matters of public concern and provision therefore shall be made by the state and by such of its subdivisions and in such manner, and by such means as the legislature shall from time to time determine. (New. Adopted by Constitutional Convention of 1938 and approved by vote of the people November 8, 1938.)

The constitution contained an equal protection section,

No person shall be denied the equal protection of the laws of this state or any subdivision thereof. No person shall, because of race, color, creed or religion, be subjected to any discrimination in his or her civil rights by any other person or by any firm, corporation, or institution, or by the state or any agency or subdivision of the state. (New. Adopted by Constitutional Convention of 1938 and approved by vote of the people November 8, 1938; amended by vote of the people November 6, 2001.)

Rather than a “right to work” law the New York State Constitution contains a “right to organize and to bargain” section,

Employees shall have the right to organize and to bargain collectively through representatives of their own choosing. (New. Adopted by Constitutional Convention of 1938 and approved by vote of the people November 8, 1938; amended by vote of the people November 6, 2001.)

While states around the nation are restricting the right to vote through voter ID laws New York State embedded in the constitution fair voting requirements,

All elections by the citizens, except for such town officers as may by law be directed to be otherwise chosen, shall be by ballot, or by such other method as may be prescribed by law, provided that secrecy in voting be preserved. The legislature shall provide for identification of voters through their signatures in all cases where personal registration is required and shall also provide for the signatures, at the time of voting, of all persons voting in person by ballot or voting machine, whether or not they have registered in person, save only in cases of illiteracy or physical disability. (Formerly §5. Renumbered and amended by Constitutional Convention of 1938 and approved by vote of the people November 8, 1938.)

The voters amended the constitution in 1965 and added a strong section advocating for “low rent housing,”

 Subject to the provisions of this article, the legislature may provide in such manner, by such means and upon such terms and conditions as it may prescribe for low rent housing and nursing home accommodations for persons of low income as defined by law, or for the clearance, replanning, reconstruction and rehabilitation of substandard and insanitary areas, or for both such purposes, and for recreational and other facilities incidental or appurtenant thereto. (Amended by vote of the people November 2, 1965.)

The free exercise of religion calls for the “free exercise and enjoyment of religious profession … shall forever be allowed in this state to all humankind,”

The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed in this state to all humankind; and no person shall be rendered incompetent to be a witness on account of his or her opinions on matters of religious belief; but the liberty of conscience hereby secured shall not be so construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace or safety of this state. (Amended by vote of the people November 6, 2001.)

In this climate it is quite important that the constitution supports the rights to “speak freely, write and publish” and states “no law shall be passed to restrain or abridge the liberty of speech or the press,”

 Every citizen may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or of the press. In all criminal prosecutions or indictments for libels, the truth may be given in evidence to the jury; and if it shall appear to the jury that the matter charged as libelous is true, and was published with good motives and for justifiable ends, the party shall be acquitted; and the jury shall have the right to determine the law and the fact. (Amended by vote of the people November 6, 2001.)

Every twentieth year we have the opportunity to convene a constitutional convention. At this time in history a convention could would endanger the rights described above. Every day another attack on free speech, on the press, a proposed erosion on the rights that generations of our forebears have sacrificed to retain, we should expend every iota of our energy to defeat the required and dangerous constitutional convention ballot question.

The constitution requires,

At the general election to be held in the year nineteen hundred fifty-seven, and every twentieth year thereafter, and also at such times as the legislature may by law provide, the question “Shall there be a convention to revise the constitution and amend the same?” shall be submitted to and decided by the electors of the state; and in case a majority of the electors voting thereon shall decide in favor of a convention for such purpose, the electors of every senate district of the state, as then organized, shall elect three delegates at the next ensuing general election, and the electors of the state voting at the same election shall elect fifteen delegates-at-large

We haven’t even talked about the cost of a convention, 25, 50 million or more, and, the supporters of the current constitution wasting their dollars that could be used to fight Trump in 2018 and 2020.

Currently there is a change to the constitution that is making its way through the usual process – approval by both houses of the legislature and by two successive votes by voters in November. The Silver-Skelos amendment would deprive elected officials of public employee pensions if convicted of serious crimes.

The November elections are an “off-year,” there are no major contests on the ballot, except in New York City; the fifty-one members of the Council and three city-wide offices, Mayor, Comptroller and Public Advocate will be on the ballot. The problem; the real action is in the September primaries, and, unless a Republican with very deep pockets emerges the November turnout in New York City will also be low.

In elections with meager turnouts the best organized candidates win. A constitutional convention will be favored by the “good government” groups, and, what are call “astro-turf” organizations, organizations that look like responsible organizations but in reality have another agenda. For example, a group could argue that at a constitutional convention a women’s right to choose, a pro-abortion section could be added to the constitution, in reality, once the convention convenes the delegates have total free rein.

We must remember, state constitutions and state laws cannot take precedence over the federal constitution and federal laws. the Supremacy clause of the Constitution.

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing [sic] in the Constitution or Laws of any State to the Contrary notwithstanding.

For example, federal bankruptcy laws take precedence over state constitutional public employee pension guarantees ; when Detroit declared bankruptcy the public employees unions were forced to negotiate pension reductions, the federal courts invoked the supremacy clause.

These are perilous times, the Affordable Care Act  replacement, if it passes as proposed would force states to either sharply reduce health coverage or absorb the costs. A National Right to Work Law will be proposed and I believe Trump adviser Steve Bannon is working on a strategy to repeal the 13th, 14th and 15th amendments to the constitution.

The battles ahead are many, the threat of a constitutional convention is a needless distraction, lets make sure it does not happen.