A brief history of the mechanisms of constitutional change in New York and the future prospects for the adoption of the initiative power.

• Author: Sharum, Jerald A.
• Position: Perspectives: Ballot Initiatives and Referenda

1. INTRODUCTION

   On June 5th, 2007, the New York State Senate passed for the second time in three years a bill that would amend the New York State Constitution to allow constitutional amendments to be proposed by popular initiative.1 While the likelihood of that bill to be submitted to the people for approval is a long shot at best, it represents a developing area in the constitutional tradition of New York State: constitutional change. The language of this tradition, whether ultimately chosen or avoided, provides an essential understanding of New York's current article governing constitutional amendments and revision and its two mechanisms of constitutional change: legislative proposals and constitutional conventions. In this Article, I track in some detail the changes made to these mechanisms of constitutional change in order to identify important themes and considerations that have shaped the power of constitutional change in New York. These themes not only provide important insights into constitutional change in New York generally, but they also provide a unique perspective on the past rejection and future prospects for the adoption of a third mechanism of constitutional change: the initiation of proposed constitutional amendments by the people. In reflecting on the development of these themes over time, I conclude that New York's constitutional change tradition is, on balance, generally inconsistent with the popular initiative as a method of constitutional amendment. Despite this inconsistency, however, the initiative may be adopted in the future due to the ineffectiveness of the existing mechanisms of constitutional change.

   To reach that conclusion, Part II of this Article introduces the development of the power of constitutional change in New York from 1775 to 1938, the year in which the last substantive change to the power of constitutional change was made. Part III then describes the changes proposed during the Constitutional Convention of 1967 in order to provide the most recent comprehensive account of proposals that may be adopted in the future. Part IV then identifies two themes that describe this development: (1) diffusion of power in the constitutional process to ensure that no one individual or group, whether the people, the legislature, or constitutional conventions, has too much control in the constitutional process; and (2) the treatment of constitutional revision and amendment as a filtered and controlled manifestation of the will and sovereign power of the people. Part V compares these themes with the initiative power in the context of initiative powers proposed within the last century. Part VI concludes that the initiative processes for constitutional amendment as have been proposed in New York in the past are inconsistent with New York's conception of the people as the source of political and constitutional power and the legislature's control of that power through safeguards to ensure that the people, just as with the legislature and constitutional conventions, do not wield too much control in the constitutional process.

2. THE DEVELOPMENT OF THE POWER OF CONSTITUTIONAL CHANGE IN NEW YORK

   Over the more than two centuries that have passed since New York's first constitutional convention that lead to the adoption of New York's first constitution in 1777, (2) the topic of constitutional change has received considerable attention by scholars and delegates at subsequent constitutional conventions. (3) Due to this attention, the power of constitutional change has been modified relatively frequently by constitutional conventions and individual amendments.

   1. Constitution of 1777

      New York's first constitution, the Constitution of 1777, did not contain any provisions describing constitutional change nor the manner in which constitutional amendments were to be permitted. (4) The method of its adoption, however, provides an insight into the framers notion of and requirements for constitutional change. While a provincial government had been established in New York well before 1777, prior to 1777 there was no procedural mechanism in New York or in any of the other colonies by which the governing body or the people of the new state could draft and formally adopt a constitution. (5) As a result, in 1775 the Third Provincial Congress, "troubled by the lack of any mandate to form a new government," called for a special election to ask the people for approval to form a new constitution and a new government. (6) By 1777, the delegates to the constitutional convention, as representatives of the people of the state of New York, approved the document as the first Constitution of the State of New York--notably without the ratification of the people at the polls. (7)

      The resulting constitution contained no explicit mechanisms for constitutional change, but it did articulate in the prologue the central place of the people in the construction of the state itself, a construction governed by the constitution:

      [G]overnments are instituted among men, deriving their just powers from the consent of the governed; that whenever any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it, and to institute new government, laying its foundation on such principles, and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness. (8) It went on to specifically pronounce that the people were empowered to "institute and establish such a government ... deem[ed] best calculated to secure the rights and liberties of the good people of th[e] State." (9) This recognition of the sovereign power of the people to institute and establish their own government was precisely the same reason why the members of the Third Provincial Congress believed that they did not have the necessary mandate of the people to form a new government, and why they called for a special election in 1775 to ask the people for approval to form a new constitution and a new government. (10) Based on this and the subsequent utilization of the people to authorize later conventions, it is as at least arguable that the framers of the constitution implicitly provided for the ability of the people to authorize the creation of future constitutional conventions to affect constitutional change in order to "institute and establish" a new government as the people would see fit.

      Furthermore, "[a]ssuming this was not an oversight, the implication is that the legislature believed itself to be the body to initiate constitutional change and determine the process of amendment." (11) This view finds support in the assertion by the Third Provincial Congress, the legislative body in existence at the time of the founding of the State, of the power to "go to the electorate for a mandate to frame a new government" and with that mandate, to devise the method of constitutional revision to be undertaken. (12) While this power would not be explicitly articulated in New York's constitution until 1846, the use of the power early in New York's constitutional history definitively established the power of the legislature to submit a call to the people for the authority to draft a new constitution.

   2. Constitution of 1821

      The method of amending the Constitution was one of the topics particularly brought before the Convention of 1821, the convention that lead to the adoption and enactment of the second series of revisions to New York's constitution since 1777, the Constitution of 1821. (13) In 1820, Governor DeWitt Clinton argued that the limited mode of constitutional revision available at the time, namely, the general constitutional convention process authorized by the people following a request by the legislature, was ineffective in improving the constitutional scheme. (14) The lack of any method of constitutional change other than by such general conventions likely "prevented many amendments ... because of the unwillingness of the people to call conventions." (15)

      As a result of this and other perceived deficiencies of the Constitution of 1777, as well as growing calls for constitutional reform, there was increasing interest in calling another constitutional convention. (16) The legislature did not respond to this pressure until "popular discontent no longer could be safely ignored." (17) The legislature ultimately introduced two bills, one to put to the people the question of whether to hold a convention, and one to require that the results of any such convention would be submitted to the people for approval. (18) This "established the tradition in New York of making constitutional conventions the creature of the people, not of the legislature." (19)

      And so the Convention of 1821 convened, in part to address the absence of a plan for amending the Constitution. The Convention ultimately provided for the amendment of the constitution in Article VIII:

      Any amendment or amendments to this Constitution may be proposed in the senate or assembly, and if the same shall be agreed to by a majority of the members elected to each of the two houses, such proposed amendment or amendments shall be entered on their journals, with the yeas and nays taken thereon, and referred to the legislature then next to be chosen; and shall be published for three months previous to the time of making such choice; and, if in the legislature next chosen as aforesaid, such proposed amendment or amendments shall be agreed to by two thirds of all members elected to each house, then it shall be the duty of the legislature to submit such proposed amendment, or amendments to the people, in such manner, and at such time, as the legislature shall prescribe; and if the people shall approve and ratify such amendment or amendments, by a majority of the electors qualified to vote for members of the legislature voting thereon, such amendment or amendments shall become part of the Constitution. (20) This addition allowed the...