Legal Commentary

It is hard to pull out the serious arguments in this editorial from the N.Y. Times about a proposed constitutional convention in New York. From what I can tell, the main argument is that a convention will take years.  But shouldn't constitutional design take a little while, if it is going to be done properly?  I'm all for fixing state governments quickly.  Yet it is hardly obvious that any quick fix can be made that would really improve the quality of our politics.  Moreover, it is difficult to come to agreement about which specific reforms are the most urgent to get state governments back on track.  I would think, accordingly, that it makes sense to have some sustained study by a group of engaged citizens, thinking about how, say, term limits intersect with partisan redistricting, primary design, bicameralism, and direct democracy.  Has the N.Y. Times editorial staff gotten to the bottom of the best way to design a state government?  Do tell, for although many of us know it is bad to spend public money on the sex habits of our governors, the hard design questions do not furnish us with easy answers.  They are highly contested in politics and in academia.  There are values questions at stake that cannot always be easily resolved in normal politics.  Emergencies are opportunities for high politics, not for as quick a resumption of normal politics as possible.

Indeed, it is hard to understand just what is so threatening about a focused attempt to rethink constitutional essentials (though for some hints, see "Constitution Conventionphobia").  Don't we want a fix that will help governance for the next generation, not just the next few years?  Maybe the Times can't help but think in "news cycles."  But a constitutional convention is a real opportunity to think about state citizens' long-term futures. 

To be fair, the newpaper is right that when the current legislators get to control the agenda and the delegate selection, conventions can be a waste and the proposals will tend to lose at the ratification stage.  We've learned as much from the New York convention of 1967 and the New Jersey convention of 1944: in those contexts, delegates to the convention included active legislators and government players ? and the people didn?t trust their elected leaders, which is what made the convention necessary in the first place.  But that is a design problem, not a problem with conventions as such.  True, for NY to run a successful convention, it will have to find a more creative delegate selection model than the one currently being discussed.  California's Repair California spent a lot of time considering delegate selection issues for months last year.  It didn't get it perfectly right.  But instead of always making California the butt of the joke (and NY's dysfunctions don't put the state in a great position to mock), a serious paper would actually engage the hard issues rather than bandy about hobgoblins.  Cuomo is at least trying. 

For my remarks on state constitutional convention design from last year (when I was helping Repair California think through these questions), see here.