The Constitutional Commission in New York: a worthy tradition.

• Author: Galie, Peter J.

In 1997, when New Yorkers decisively defeated a constitutionally mandated ballot proposition to convene what would have been the state's fourth constitutional convention in the twentieth century, they placed the fate of constitutional reform with the state legislature.(1) Not until the year 2017 will the question be required to appear on the ballot,(2) and the likelihood of the legislature proposing a convention vote in the interim is remote.(3) New York does not permit amendments to be submitted to the electorate through constitutional initiative,(4) and no constitutional commission has the power to submit amendments directly to the voters;(5) constitutional reform can only emanate from either a constitutional convention or the state legislature.(6) Since 1938, legislatively proposed amendments have been the only procedure successfully used for revising the state's charter.(7)

Paradoxically, the latest rejection came at a time when many of the state's political actors agreed that systematic constitutional revision was needed.(8) The League of Women Voters, Civil Service Employees Association (C.S.E.A.), American Federation of Labor--Congress of Industrial Organizations (A.F.L.-C.I.O.), National Organization of Women (NOW), and various environmental groups who opposed the calling of a convention in 1997, were, nevertheless, in agreement with proponents of the convention on the need for constitutional reform.(9) Thus, debate has focused on the means for achieving reform. Constitutional conventions, viewed as cumbersome, expensive,(10) and subject to approval by a suspicious, even dangerous, electorate have fallen from favor with citizen groups(11) and politicians.(12) The alternative, the legislature, may not be the ideal agency for providing systematic, regular revision and, in any case, has not been a successful forum for addressing such serious problems as fiscal integrity(13) and state/local relations.(14) Have we reached an impasse? This article examines the use of the constitutional commission, particularly in New York, as a means of achieving constitutional reform.

A study of the constitutional history of New York reveals that the constitutional commission has a long and vital history as a means of proposing meaningful and necessary reform within the state. Some of the most significant constitutional revision in New York has been the product of such commissions, and the most successful commissions were held in the aftermath of constitutional convention defeats.

This article examines the history and tradition of commissions as mechanisms to effectuate constitutional reform in New York, from its origins in the 1870s, when the state was struggling with issues such as corruption, home rule for burgeoning cities, and AfricanAmerican suffrage, to the present-day, when the state budget process, debt limitations, and social welfare are issues of concern. Each commission will be analyzed, and placed in the historical context from which it emerged.(15) Although a detailed analysis of the results of each commission is outside the scope of this article, an emphasis will be placed on the accomplishments and failures of each commission, as well as each commission's unique contributions to New York's constitutional history. After analyzing the constitutional commission experience of New York State, this article examines the use of constitutional commissions to provide meaningful constitutional reform in several other states, such as Florida, Utah, and Georgia.(16)

1. THE NEW YORK STATE CONSTITUTIONAL COMMISSION EXPERIENCE

   Throughout its history, New York has convened ten constitutional commissions.(17) Of these bodies, five were created specifically to prepare for upcoming constitutional conventions,(18) while six were formed to study and propose changes to the existing constitution.(19) As indicated by the appended table, the majority of constitutional commissions were statutorily created, although some were formed by a resolution of one or both houses of the legislature, and others were the product of executive order.(20) The composition of these commissions, both in the number of members and the method of appointment varies. The largest commission was the forty-two member Constitutional Convention Committee of 1937-1938,(21) while the smallest commission was the five member 1914-1915 Constitutional Convention Commission.(22) In marked contrast to constitutional conventions, which typically are composed of over one hundred delegates,(23) six of New York's commissions have had twenty or less members.(24) The maximum amount of funding for an individual commission was $800,000(25) for the Temporary State Commission on the Constitutional Convention, which was in operation from 1965 through 1967. Although this may appear expensive compared to the earlier commissions,(26) the subsequent convention for which this commission prepared cost taxpayers over six million dollars.(27)

   1. Constitutional Commission of 1872

      Although New Jersey, as early as 1852, was the first state to use a constitutional commission as a mechanism to examine its constitution,(28) New York soon followed. In 1872, the legislature created a constitutional commission to propose constitutional amendments to the legislature.(29) What events and circumstances brought this constitutional creature to life?

      In 1869, the voters decisively defeated the constitution proposed by the Constitutional Convention of 1867.(30) This rejection of the convention's work, however, neither lessened the need, nor quelled agitation, for constitutional reform.(31) Governor John T. Hoffman directed attention to the corrosive impact of money on the electoral system, advocating the adoption of strong constitutional measures to arrest this corruption.(32) In his annual message to the legislature in 1872, Governor Hoffman focused on the need for general constitutional revision.(33) Although he believed another convention inexpedient,(34) he apparently was not convinced that the legislature, burdened with the constraints of ordinary business, could successfully undertake the comprehensive reform he deemed requisite.(35) Governor Hoffman likely believed the legislature was more suited to mending, not restructuring, the constitution.(36) Accordingly, he decided against summoning an extraordinary legislative session, and proposed that the legislature create a constitutional commission, which was an unprecedented procedure in the state's constitutional history.(37) Under his proposal, the governor would choose thirty-two "eminent citizens," with an equal number from each political party, to form the commission, which would report recommendations for consideration by the legislature.(38) Governor Hoffman seized this opportunity to recommend substantive reforms, including executive reorganization and consolidation, restructuring of the senate, home rule, measures to remedy electoral corruption, and canal reorganization.(39)

      Following the Governor's recommendation, the legislature created the thirty-two member commission, with four members appointed from the eight judicial districts by the governor with the consent of the senate.(40) As the Constitutional Convention of 1867 had proposed extensive revisions to the judiciary article that had been approved by voters in 1869, the commission initially was not permitted to propose any amendments to that article.(41) This restriction was removed the following year in an amendment to the authorization.(42) The commission functioned as an independent nonpartisan unit, separate from the legislature. However, any recommendations could only be submitted to the voters through the regular process for legislatively proposed amendments, meaning approval by two consecutive sessions of the legislature.(43)

      The commission met in Albany on December 4, 1872, and adjourned on March 15, 1873.(44) Its final report was presented to the legislature later that month.(45) The commission recommended extensive changes to nearly every article of the constitution.(46) Among the recommendations ultimately approved by the legislature and the voters were: the removal of property qualifications for African American voters,(47) extension of the governor's term from two to three years,(48) provision for an item veto,(49) and imposition of limits on the use of money and credit by both the state government and local governments.(50) In addition, the commission report was the impetus for the enactment of a series of measures aimed at eliminating corruption in the electoral process.(51)

      This ended a chapter in the state's constitutional history that witnessed the creation of a new mode of constitutional reform. In contrast to the failed efforts of the Constitutional Convention of 1867, the ultimate acceptance of the commission's work through a series of constitutional reforms represented a marked success.(52) Not surprisingly, in 1875 the state would resort to a second commission.

   2. Commission to Devise a Plan for the Government of Cities in the State of New York

      Between the 1846 Constitutional Convention and the 1870s the urban population of New York grew dramatically. By 1875, the twenty-four cities of the state had a population of 2,213,373, representing over half the state's population of 4,330,210.(53) In addition, the assessed aggregate value of the property subject to taxation in the cities was $1,516,449,596, representing an even higher percentage of the $2,000,000,000 assessed aggregate value of the whole property in the state.(54) New measures, both constitutional and statutory, were required to address this urban growth.(55)

      The constitution proposed by the 1867 convention had included a measure of home rule for municipalities,(56) and the 1872 commission had recommended significant home rule powers.(57) The voters rejected the former,(58) the legislature rejected the latter.(59) When Samuel J. Tilden assumed the governorship in 1875, he made municipal...