As the 2017 Referendum on the New York State Constitutional Convention Approaches: A Look Back At the Accomplishment of Past Conventions

By James S. Kaplan

Recently, a political consultant and editor of the True News blog I have periodically written about historical subjects informed me that in the wake of the convictions of Assembly speaker Sheldon Silver and State Senate speaker Dean Skelos, the hottest topic in the political community fighting for ethic reforms of Albany is the upcoming referendum on the New York State Constitutional Convention. He thus asked me about the history of such conventions.   I was somewhat surprised to discover that the next referendum on this subject would not be held until November 7, 2017 almost two years hence,  and that the vote would only be on whether to hold such a convention (presumably only if favorable would the delegates would be selected and the convention itself would be held later). Furthermore, in the last two referenda (which by law must be held every twenty years) in 1997 and 1977 the voters of this state had declined the invitation to hold such a convention. In fact the last time a convention to revise the New York State Constitution was held was almost 50 years ago in 1967, and despite the hard work of its delegates, the revised Constitution that was put to the voters was rejected in its entirety. The last successful significant amendment to the New York State Constitution was that promulgated by the Constitutional Convention of 1938, almost eighty years ago. Nevertheless, the history of Constitutional Conventions in New York State is not as bleak as this recent history would indicate. In fact there are at least three New York State Constitutional Conventions—those of 1777, 1821 and 1938—which shaped the State’s political history in a very positive way and have had a vast impact on the state and its people.

I  New York State Constitutional Convention of 1777—

NYS First Constitutional Convention Held and Past In Spite of Heavy Fighting That Forced It to Re-Locate More Than Once

Probably the most amazing and important New York State Constitutional Convention was that held in 1777. The key figures at this convention were three young lawyers—John Jay, Robert Livingston, and Gouverneur Morris, with Jay probably being the most important leader. With the  first Reading of the Declaration of Independence in New York at what today is New York City’s City Hall Park on July 9, patriotic New Yorkers immediately set about creating a mechanism to revise the Colonial Charter to create the independent State of New York. A convention with delegates from around the State was first held in New York City, but soon a problem arose. 33.000 British troops had landed in Staten Island and Brooklyn in August 1776 and the Continental army was disastrously defeated at the Battle of Brooklyn, so that New York City was occupied by the British. The Convention was moved up to White Plains, then as the British moved into Westchester County, to Fishkill and then to Kingston. Given the unsettled war time conditions in which the property of many delegates was threatened it was difficult to maintain attendance, but nevertheless the delegates carried on as the City of Kingston was particularly hospitable. By March of 1777, a preliminary draft of a full Constitution was submitted to the delegates. This Constitution, which followed plans by the French enlightenment writer Montesqieu, provided for a two house legislature—a New York State Assembly reelected every year and a New York State Senate, elected less frequently. There was an independently elected Governor whose actions were subject to review by a “Council of Appointment” It also provided that delegates to the Senate and Assembly were to be elected from districts (counties) around the state by all male property holders. There were even provisions for temporary representatives from areas like New York City that were under British occupation. Unlike virtually every constitution in the world at the time, it also provided for complete freedom of religion.

Although under the circumstances, a full vote of the state’s inhabitants ratifying the Constitution was virtually impossible, on April 20, 1777 it was read in its entirety from the steps of the Ulster County Courthouse in Kingston and declared effective as the law of New York State. This document created a blueprint for New York State to have an effective functioning government throughout the rest of the Revolutionary War and for forty years thereafter. However, there were still times of considerable difficulty shortly after its ratification.  In October of 1777, British troops under General Vaughn came up the Hudson hoping to link up with British force under General Burgoyne coming down From Canada, which was blocked by an American Army compried primarily of New York and New England militia men under General Horatio Gates at Bemis Heights near the village of Saratoga.  On October 16, 1777 General Vaughn had every building in Kingston, except for a few, burned to the ground, allegedly as punishment for the inhabitants support of the patriot cause and the New York State Constitution. However, for the patriots, the burning of Kingston (which I understand is now celebrated every other year in Kingston) was tempered by another happier event. On October 17,  1777. General Burgoyne surrendered his entire force to General Gates at Saratoga, thus creating the turning point of the American Revolution. 

On October 19 General Gates (himself a former British army officer) wrote to General Vaughn:  “With unparalleled cruelty you have reduced the fine old town of Kingston to ashes, and its inhabitants to ruin”  Pointing out that ‘the fortunes of war” had placed a number of British soldiers and officers under his control, Gates noted the possibility that Vaughn himself might some day be subject to vengeance.However, Gates’ very generous treatment of British soldiers (so much so that it was later partially repudiated by the Continental Congress) as contrasted with British atrocities like the burning of Kingston won the Americans high marks with dissidents in the English parliament.  The fact that the New York State Constitutional Convention of 1777 was able to promulgate a constitution that would allow the State to function with its major City under British occupation during the American Revolution and for more than forty years thereafter is a testament to the farsighted ability of its delegates and the viability of the convention process. It is no accident that the three key figures at that Convention—John  Jay, Robert Livingston and Gouverneur Morris would also be very important participants ten years later in 1787 at the federal Constitutional Convention in Philadelphia. In fact the U.S. Constitution incorporates many significant elements of the New York State Constitution, such as a bicameral legislature, an independent executive power, and Freedom of religion. Jay would later be Governor of New York, U.S Secretary of State and the first Justice of the U.S. Supreme Court, Livingston would later for 24 years be the Chancellor of New York State who swore in 1789 George Washington as President, and as Ambassador to France in 1803, one of the architects  of the Louisiana Purchase, and Gouverneur Morris would be a prominent member of the federal Constituonal Convention and an important early promoter of the Erie Canal. Although not well-known today, the Constitutional Convention of 1777, the conditions under which it was held and the  First New York State Constitution which resulted from its efforts have to be considered one of the high points in New York State’s history and one which should be much more widely studied.

However, the New York State Constitutions of 1777 was not without its faults. First,there were property qualifications for voting, which greatly restricted eligibility to vote. For example, it required that all voters for representatives to the State Senate have at least $250, e. It is estimated that perhaps only 10% of the male population in places like New York City were eligible to vote in these elections. This would soon create considerably controversy, particularly when former Revolutionary War veterans were deprived of their ability to obtain forfeited land by the U.S. Constitutional provisions favoring Tories. Furthermore the veto of the Council of Appointment over a governor’s action also greatly restricted the governor’s ability to act. These problems were compounded by the fact that the 1777 Constitution did not have a specific procedure for amendment.  These were problems which would have to be faced in later Constitutional Conventions.

II New York State Constitutional Convention of 1821      

The 1821 Constitutional Convention Gave the Right On White None Property Owners to Vote

The issue of voting qualifications had long been a problem in the early history of New York State, particularly in New York City.   To some extent the problem was more severe in New York City than elsewhere because during the Revolution there were many more pro British Tories living in New York City, which was under British occupation during the War. Under the initial New York state statutes lands of these Tories were subject to forfeiture to the State, and Tories had no right to vote. However, the Treaty of Paris as implemented by the U.S Constitution overrode these state forfeiture statutes, and in the late 1780’s the restrictions against former Tories from voting were removed. Thus in theory former Tories had the right to recover their forfeited land, some of which had been distributed to Revolutionary war veterans. Meanwhile Revolutionary war veterans from New York City tended to be poorer working class people who did not own significant property (and who had fled the City during the Revolution). The new policies of the 1790’s tended to disenfranchise men who had fought on the American side, while enfranchising the Tories who had fought for the British.

The Revolutionary War veterans tended to congregate in a civic group called the Tammany Society which sought more liberal qualifications for voting, and the elimination of the developing hegemony of the former Tories and their allies over the City’s politics and economic institutions. This issue came to a head in the New York City elections of 1800, when the Tammany Society acting through its agent the Democratic Republican party ran candidates for the New York State Assembly (which selected electors to the electoral college) opposed representatives put forth by the previously dominant Federalist party. The candidates of the Tammany Society whose mastermind was Aaron Burr included a number of prominent Revolutionary war figures such as General Horatio Gates and former Governor George Clinton. They were pledged to the election of Thomas Jefferson as opposed to Federalist incumbent John Adams, and they were successful in defeating the Federalists. As a result, New York City and State sent pro Jefferson electors to the electoral college, Jefferson was elected President over Adams, and his election ushered in a new period of “Jeffersonian Democracy”. The political objective of the Tammany Society was always to expand the number who could vote. In fact they tried various strategems to get around the property qualifications on voting, such as having a large number of members buy a single property with a value over the voting limit and then claiming they all could vote. 

It Took the Constitutional Convention of 1821 For New Yorkers Who Did Not Own Property to Have the Right To Vote

Notwithstanding the Tammany victory in the 1800 elections, control of New York’s politics see sawed between Federalists and “Democrats” up until around 1818 with the Democrats never quite able to amend the provision of the 1777 Constitution establishing strict property qualifications for voting. Finally in 1818, a democratic legislator in Albany sponsored a bill to seek a referendum on whether to call a Constitutional Convention to rewrite the New York State Constitution. This in essence would permit the Democrats seeking to eliminate property qualifications for voting to by pass the State legislature and amend the State Constitution directly.  A version of the bill passed in 1820 and in a referendum the state’s voters overwhelming called for the convening of a  Constitutional Convention to consider revamping the 1777 Constitution. This convention proved to be one of the most productive in the State’s history. It completely revised the wartime Constitution of 1777 to eliminate such archaic institutions as the Council of Appointment, which had the right to veto any legislation approved by the State Assembly and Senate.

More importantly after a bitter debate the Convention eliminated property qualifications for voting. In this debate a number of the State’s most prominent political leaders strongly defended the provisions of the original Constitution limiting the vote to property owners. Chancellor James Kent, the state’s leading legal scholar and the head of its highest Court, for example, argued that if all citizens in the State had the right to vote those without property would through taxation and other means appropriate the property of the wealthy landowners. He stated:

“By the report before us, we propose to annihilate, at one stroke, all those property distinctions, and to bow before the idol of universal suffrage. The extreme democratic principle, when applied to the legislative and executive departments of government, has been regarded with terror by the wise men of every age, because in every European republic, ancient and modern, in which it has been tried, it has terminated disastrously, and been productive of corruption, injustice, violence and tyranny. And dare we flatter ourselves that we are a peculiar people, who can run the career of history, exempted from the passions which have disturbed and corrupted the rest of mankind?...”  

On the other hand the state’s voters had elected the majority of delegates to the Convention from the Tammany or “bucktail” faction of the State’s politics, which was headed by  later Governor and President Martin Van Buren. Van Buren gave a long speech urging the rejection of a motion to retain property qualifications and attacking Chancellor Kent’s theories. Similarly Governor Daniel Tompkins, the chairman of the Convention who had led the State militias during the War of 1812 argued that the men who fought in the wars should have a right to vote, just as well as landed property owners. Tompkins stated:  “Who filled the ranks of your armies? Not the priesthood, not the men of wealth, not the speculators: the former were preaching sedition and the latter decrying the credit of the government to fatten its spoil. And yet the very men who were led on to battle, had no vote to give for their Commander in chief…. It is the citizen soldier who demands the boon, and he rightfully demands it.” The motion to retain property qualifications for voting was defeated by a vote of 19 to 100.  The entire Constitution as reported by the Convention was submitted to the state’s voters in 1822, and was ratified by a vote of 71,732 to 41,402. Like the Constitution of 1777, the Constitution of 1821, which had been created by a referendum, was an amazing achievement. It had modernized and updated the earlier Constitution to provide a framework for the State government that met the then modern conditions. The elimination of property qualifications for voting was probably one of the most important political developments in New York’s history and one which remains with us to this day. As the state’s economy changed from agricultural to industrial and as immigrants flowed into the state from Germany and Ireland and later from Eastern Europe and Italy, the right of each citizen regardless of land ownership to vote in elections would create a protection for the poor that was unlike anything available in the places where most immigrants came in Europe.Although arguably this provision spurred the growth of sometimes corrupt political organizations in the 19^th century, it required such organizations to provide basic services, such as free education, limited health care, and jobs on public works to integrate people into the society. By the 1920’s New York through such public officials as Frances Perkins, Belle Moskowitz and Robert Moses would be a leader in providing social welfare programs, which would later be implemented throughout the country. Rather than creating “corruption, injustice, violence and tyranny” as Chancellor Kent had warned, it helped significantly to create a stable democracy that people around the world would emulate, as internationally democratic governments with broad based suffrage would soon replace the monarchies of the past. 

However, like the 1777 Constitution, the Constitution of 1821 was not without its flaws. Although it eliminated property qualifications for voting for white males, it provided that free blacks had to have at least $250 of property in order to qualify to vote. This effectively disenfranchised the entire black community in pre Civil War New York. Black leaders such as Brooklyn’s Henry Highland Garnet repeatedly tried to have this blatantly racist provision removed from the Constitution, but these efforts did not succeed until after the Civil War more than 40 years later.   After the 1821 Constitutional Convention, there were a number of efforts to further amend the New York State Constitution to meet different needs of the State Government at the time. In fact the Constitution was amended in 1846, 1867, and 1894, and there was an attempted amendment in 1915. Starting in 1846, there was a Constitutional amendment providing that a proposition had to be placed before the voters asking whether they wanted to call a Constitutional Convention to consider amendments every twenty years. This provision is still in the law and is the basis for the 2017 referendum. 
  

III. New York State Constitutional Convention of 1938
The Constitutional Convention of 1938 Want to Ensure That New Deal Programs Like Public Housing, Aide to Poor Children and Health Care Rights Were In the State's Constitution

The last significant successful amendment to the New York State constitution took place as a result of the Constitutional convention in 1938. This convention had the broad support of New York’s political leaders including Governor Herbert Lehman, and came at a very different time in the State’s politics. Both the country and the state were reeling economically from the impact of the Great Depression. New York politicians such as Al Smith and Franklin Roosevelt had led the country in instituting social welfare programs to combat the economic depression. Former New York labor Commissioner, Frances Perkins had been appointed by President Roosevelt the first woman to become the federal Secretary of Labor where she was designing and implementing the programs of the New Deal. {see A New York Woman Who Deserves to Be on the $20 bill” )The constitutionality of a number of these programs had been questioned by a Conservative Supreme Court. Roosevelt and Perkins’ successors in the New York State government wanted to continue their tradition of progressive social welfare programs so that New York would remain a model for the nation in this regard. However, concerns were raised that the New York State government too lacked the Constitutional power to carry out these programs.  

The delegates to the New York State Constitution of 1938 thus wanted to make sure that specific programs for low income housing, aid to poor children and medical assistance were explicitly authorized. Thus, specific provisions covering such programs by name were incorporated into the Constitution.  "For example, Article XVII of the Constitution as added by the convention, specifically dealt with "social welfare" and provided for state treatment of persons with "mental disabilities" and for the treatment of prisoners. Similarly Article XVIII contains specific provisions permitting the State and its localities to provide low income housing to its citizens, These are not matters specifically discussed in prior constitutions.    As a result, the current New York State Constitution is seven times longer than the Federal constitution. While effectuating an appropriate social purpose, these revisions were criticized thirty years later as unnecessary, since the state had the inherent authority to undertake them anyway

IV. Recent Efforts at Constitutional Reform Have Been Blocked By the State's Permanent Government

A Coalition of New Yorkers Hurt by Government Will Be Need to Build the Public Support and Political Power to Force the Permanent Govt To Allow A Constitutional Convention in 2017

Unfortunately the efforts to amend the State Constitution and bring its provisions into line with modern conditions in the last eighty years have been less successful. Whether for this or other reasons, the New York State government no longer is consider a national leader in the forefront of governmental reform or effectiveness of which most New Yorkers can be proud. In fact recently the legislative process has degenerated to a point where it is controlled by “three men in a room”, two of whom have been now convicted of misusing their positions for personal gain. As indicated above, the last two referenda for a  constitutional convention in 1777 and 1997 were rejected by the voters because of the opposition from well funded special interests concerned about change, concern about overpaying delegates and general voter apathy. The proposed 1967 revision to the Constitution, the last to be actually put before the voters was rejected because of political controversy over funding transportation for parochial school children. However, perhaps it is now time for New York State voters to look to the achievements of the more distant past, and not the more recent failures. There is now a state commission to celebrate the 100^th anniversary of women’s suffrage. July 4, 2017 will mark the 200^th anniversary of the commencement of the construction of the Erie Canal.  Why not look for a new beginning on November 7, 2017 with the referendum for a New York State Constitutional Convention?