BA
POLICY
T O O M U CH TI N KE R I N G
DO CONSTITUTIONAL A M E N D M E N T S G O FA R E N O U G H ? By JON LENTZ
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ew York voters will decide this November whether to approve six constitutional amendments, ranging from the legalization of casino gambling and two land swaps in the Adirondacks to raising the age limit for certain state judges. But for some, the New York Constitution needs a much more comprehensive overhaul—and it’s not too early to press for more far-reaching changes. “We have this Constitution, and it’s not doing what it’s supposed to do,” said Chris Bopst, a partner at Goldberg Segalla and an expert on state constitutional law. “[We have] a laundry list of examples of provisions that are avoided, circumvented and otherwise ignored, yet we as a state have this belief that, ‘Oh, well, we can’t do anything about this. That’s just the way the world works.’ I’m here to say that we can.” Bopst, speaking at a conference on the state Constitution co-sponsored by EffectiveNY, SUNY New Paltz’s Center for Research, Regional Education and Outreach and City & State, argued that a Constitutional Convention would be far more effective than just “tinkering” by passing individual amendments. New York State law already requires a referendum every 20 years on whether to hold a Constitutional Convention, although such a convention is not mandatory, as Bopst and others would like it to be. After the state’s last convention in 1967, voters rejected recommended revisions. In 1997, amid concerns about cost and the possibility that environmental and laborfriendly provisions could be stripped out, voters shot down a convention. The next time voters will decide if they want a Constitutional Convention will be 2017. Bill Samuels, the founder of EffectiveNY, said that he plans to lobby for a convention in 2014, while Gov. Andrew Cuomo is running for re-election. “Part of our goal is not to wait until 2017 to debate a Constitutional Convention,” Samuels said. “We do not need to wait until 2017. We’ve had three straight Democratic governors who have fundamentally failed to reform Albany.” Among the issues that delegates to the convention could take up, Samuels said, are state education funding, the redistricting process and unfunded mandates—although they could address any issues they choose. Delegates could also remove outdated provisions and simplify amendments that have been altered repeatedly over the years. Peter Galie, a Canisius College political science professor, said that the state’s Constitution has provisions that quickly become obsolete. Years of adding amendments have created a “bloated document” with “practically unreadable” passages, he added, and some provisions that remain in place are no longer enforced or enforceable. “Why does a bond issue authorization for railroad crossing removal, long retired, remain in the Constitution? Why are provisions regulating the granting of divorces and the drainage of swampland and gambling—what are they doing in our bill of rights? Don’t they know where to put them?” Galie asked. “Large sections of the Constitution’s reapportionment
measures have been superseded by federal law for over 50 years.” Citing one example of a provision of little use, Galie said that while general obligation debt is constitutionally required to be approved by voters, more than 90 percent of the state’s outstanding debt was not subject to voter approval, thanks to backdoor borrowing through public authorities. Another example is the “forever wild” provision at the center of two constitutional amendments up for a vote this year. The provision limits development in the Adirondacks, but the amendments would allow for parkland to be swapped out, in one case to a mining company. The amendments would only be the latest changes to the provision, which has been amended 13 times since 1938. “If you discount the Bill of Rights, that’s almost as many amendments as there have been to the federal Constitution in the whole document in 200-some years,” Bopst said. “That’s what you have, these provisions that are amendment breeders.” Some of the panelists suggested that provisions like “forever wild,” as well as the gambling prohibition and the age limits on judges, could simply be dropped. “A lot of people say, ‘Of course we need it,’ ” Bopst said of the “forever wild” provision. “But there’s nothing in the federal Constitution, and I don’t see the federal government giving Yellowstone Park away in the near future.” However, the comparison with the U.S. Constitution only goes so far. Several panelists noted that state Constitutions, which cover more everyday concerns than the federal Constitution, require more updating by their nature. Dennis Hawkins, executive director of the Fund for Modern Courts, spoke in support of one amendment on the ballot that raises the mandatory retirement age from 70 to 80 for state Supreme Court and Court of Appeals justices. In the three decades since a 1983 amendment to raise the age limit for all state judges to 76 failed, the justices’ caseload has only increased, and it has been exacerbated by a constitutional cap on the number of Supreme Court judges. “There is no other public official in New York State who has a mandatory retirement age—not legislators, not executives, no one,” Hawkins said. “So where’s the logic, where’s the sense of even having it in?” Two of this year’s amendments—the one altering the gambling prohibition and the two dealing with the “forever wild” provision—would affect portions of the Constitution that date back to 1894, noted Gerald Benjamin, a political science professor at SUNY New Paltz. Supporters of the “forever wild” provision have worked hard to keep it in place, while the gambling ban has eroded over the years. “The lesson of that, I think, is that the Constitution is very responsive to the shifting values of the state,” he said. “What we’re testing in this election is: How much have the values of New Yorkers evolved on gambling? Have the values evolved to the point where this restriction is undone entirely? And then the right question is: Why don’t we just take the restriction out of the Constitution rather than changing it?”
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TBUTlEr@BUTlErASSOCIATES.COM cityandstateny.com | OCTOBER 21, 2013
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