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New York Needs a Political Primer on the State Constitutional Convention Referendum


boe poll workers and voting booths 1

(photo via NYC Board of Elections)


The following essay is a slightly edited version of J.H. Snider’s introduction to a Fall 2016 symposium, “The Politics of State Constitutional Reform,” published by the Law & Courts Section of the American Political Science Association. The symposium provides a summary of notable presentations at a short course, A Political Primer on the Periodic State Constitutional Convention Referendum, presented at the 2016 Annual Meeting of the American Political Science Association, whose theme for 2016 was “Great Transformations: Political Science and the Big Questions of our Time.” The short course and symposium provide an inter- rather than intra-state perspective on New York’s November 7, 2017 referendum on whether to call a state constitutional convention. Gotham Gazette has previously published four op-eds by J.H. Snider providing an intra-state perspective on the upcoming referendum.

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At the 2016 Annual Meeting of the American Political Science Association, I produced a short course, “A Political Primer on the Periodic State Constitutional Convention Referendum.” The short course consisted of two parts.  

Part I included a two-hour compilation of TV documentaries and political ads. The TV documentaries included excerpts from past constitutional conventions, mostly U.S. state constitutional conventions held during the latter half of the 20th Century, plus a smattering of recent path-breaking constitutional conventions held in other countries. The unedited TV ads, mostly 30 seconds in length, were either for or against calling a state constitutional convention at an upcoming referendum. The TV documentaries generally described the past constitutional conventions in hagiographic terms. Most of the professionally produced TV ads were negative and characterized a future constitutional convention as a grave threat to the people’s rights.  

Part II consisted of four panels of experts, each panel approximately 30 minutes long. The first panel focused on New York, which on November 7, 2017 has the next referendum on whether to call a state constitutional convention. The panel included a history of New York’s 11 state constitutional conventions since 1777 (by me) and an argument why New York’s upcoming referendum was of national interest (by Sandy Levinson).

The second panel reviewed the history of U.S. state constitutional conventions (John Dinan) and changing public opinion towards them (William Blake). The third panel examined the merits of alternative legislative bypass mechanisms, including Ireland’s 2012 constitutional convention with randomly selected members (David Farrell), Florida’s periodic constitutional revision commission (Carol Weissert), and the constitutional initiative (Craig Holman and John Dinan).  The fourth panel focused on the politics and policy of New York’s upcoming constitutional convention referendum, including an identification of the political actors (me) and arguments generally for (Richard Briffault) and against (Craig Holman).

The short course, which was recorded and posted online at The State Constitutional Constitution Clearinghouse and The New York State Constitutional Convention Clearinghouse, is intended as a resource for local opinion leaders in states with upcoming state constitutional convention referendums.

Between 2016 and 2034 at least one U.S. state every two years will have a referendum on whether to call a state constitutional convention: New York (2017), Hawaii (2018), Iowa (2020), Alaska (2022), Missouri (2022), New Hampshire (2022), Rhode Island (2024), Michigan (2026), Connecticut (2028), Hawaii (2028), Illinois (2028), Iowa (2030), Maryland (2030), Montana (2030), Alaska (2032), New Hampshire (2032), Ohio (2032), and Rhode Island (2034).

No periodic state constitutional convention referendum has passed since 1984—contributing to the longest drought in convening a state constitutional convention in U.S. history. After reviewing many debates leading to constitutional convention defeats, I concluded that the debate discourse was often ill-informed, partly because of a lack of local experts on whom the press could rely for historical and comparative information about state constitutional conventions.  

To rectify this problem, I have sought to provide easily accessible background information in a variety of different formats, including newspaper op-eds, online information clearinghouses, scholarly articles, public history events, and this short course.

My information clearinghouse on Rhode Island’s November 4, 2014 state constitutional convention referendum, the most recent such referendum, is the most comprehensive online documentation of the politics of such a referendum ever compiled online. The results of my research will be published in Snider, J.H., “Does the World Really Belong to the Living? The Decline of the Constitutional Convention in New York and Other U.S. States 1776-2015,” The Journal of American Political Thought.

Since only a tiny fraction of Americans has lived through a state constitutional convention in their adult lifetimes, and since Americans are not taught about state constitutional conventions (as opposed to the federal constitutional convention of 1787) during their formal schooling (even those such as myself who received a Ph.D. in American government), Americans approach these referendums starting with a huge knowledge deficit, making local opinion leaders that much more influential in public debates.

Too often local opinion elites and the public don’t focus on the referendum until only weeks or days before the vote, when the debate is dominated by lowest common denominator sound bites, including poorly informed opinion elites distracted by higher profile candidate races.  

Such a lack of attention and expertise should not be confused with lack of importance. As every young student learns, the preamble to the U.S. Declaration of Independence states that the American people have an “unalienable” right “to alter” their government. Thirty-seven of 50 U.S. states would eventually include similar rights language in their state constitutions; and all 50 state constitutions include some type of mechanism to implement that right. Clearly, the right to alter one’s constitution is one of the most fundamental, perhaps even the most fundamental, political rights Americans have. Implicit in that right is the right of the people to peaceably alter their constitution in the face of legislative opposition.

Fourteen states implement that right in part by granting the people the right at periodic intervals (ranging from 10 to 20 years) to call a state constitutional convention via a statewide referendum.  This institution, like the constitutional initiative, dramatically reduces the legislature’s gatekeeping power over constitutional amendment. Since legislatures have an institutional conflict of interest in proposing reforms that might weaken their own power, this institution serves a vital democratic function--albeit one that is rarely politically salient to the average voter.  

Motivating voters to care about the direct provision of collective goods, such as education or transportation, has proven hard. Harder still has been motivating people to care about indirect collective goods such as redistricting, campaign finance, or other “good government” reforms that serve as the platform for providing direct collective goods. Hardest of all may be motivating average voters to care about infrequent and unfamiliar mechanisms for creating good government—arguably, the ultimate collective action problem.

The price of serving as a check on legislatures is that legislatures are this institution’s intrinsic enemy. Powerful special interest groups with a track record of successfully influencing legislatures are also intrinsic enemies, as their ability to control a constitutional convention is a wildcard. Partly as a consequence of this intrinsic opposition and the collective goods nature of this institution for average voters, campaigns that oppose calling a state constitutional convention have tended to be much more sophisticated and better funded than campaigns that support calling a constitutional convention.  

A state constitutional convention referendum has the ingredients of a collective action problem: concentrated benefits for opposing one and diffuse benefits for favoring one.

Better educating the public about this institution via local opinion elites cannot eliminate this classic political problem, but it can mitigate it.

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On the short course page at NewYorkConCon.info, links can be found to the essays of the other symposium contributors as well as a two-hour documentary researched and compiled by J.H. Snider that consists of excerpts from TV documentaries and political ads on state constitutional conventions.

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