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Needed: Fresh Eyes to Improve New York’s Constitution (Part I)


constituents poster boards

(photo: Samar Khurshid/Gotham Gazette)


This is part one of a two-part series entitled Needed: Fresh Eyes to Improve New York’s Constitution. Read part two here.

New York’s Mandarin Constitutional Culture

During the last 500 years, a culture of innovation set off the West from the rest of the world, allowing it to achieve far higher living standards. Incentives for innovation have remained strong in the private sector but have greatly weakened in the public sector.

The United States and its most innovative state, New York, have led the West in innovation. During the 18th and 19th centuries, this included leading the world in constitutional innovation, which is arguably the most important type of public sector innovation. But present-day New Yorkers and their opinion leaders are as allergic to such innovation as Chinese emperors and Mandarins were in the 18th and 19th centuries.

Symbolic of the decline are the stale ideas currently dominating New York’s debate over whether to call a state constitutional convention. Every 20 years the state constitution mandates that New York voters be asked whether they want to convene another state constitutional convention. To date, New York has convened nine proposing and two ratifying conventions. On November 7, 2017, this question is next on the ballot.

The unique democratic function of a state constitutional convention is to provide a mechanism to bypass the state Legislature’s veto power over constitutional amendment when the Legislature’s institutional interests conflict with those of the public. The result is that not only the Legislature but also the most powerful special interest groups that thrive exercising influence over the Legislature are implacable enemies of state constitutional conventions.

The current debate in New York has been dominated by opinion leaders who were already adults when New York’s last constitutional convention convened in 1967. They have much to bring to the current debate, especially a sense of history, and we are lucky to have them. But too often their and their allies’ reform ideas are from a different generation. Their ideas may be improvements over the antiquated status quo, but so were the now obsolete audio and video tape recorders from the second half of the 20th Century that replaced paper-based recording technologies.

In contrast, when Thomas Jefferson wrote the U.S. Declaration of Independence and when James Madison and Alexander Hamilton both participated at the 1787 national constitutional convention and then defended it in the Federalist Papers, they were all under 40 years of age. The three leading figures behind the design of New York’s first constitution in 1777 -- Gouverneur Morris, Robert Livingston, and John Jay -- were all 30 years of age or younger. They brought to the design of our federal and state governments fresh eyes and many innovations from which we have greatly benefited.

A better balance between the old and new is needed. Unfortunately, getting true innovators involved in democratic reform is one of the hardest parts of democratic reform, as the rewards for such innovation are often negligible at best. Consider just one reason: why do the immensely difficult and costly work of developing an innovation that has no chance of being implemented because of a legislature’s institutional conflict of interest?

A state constitutional convention is one of the few institutional mechanisms in our democracy with the potential to stimulate fresh thinking. It would be a tragedy to squander that opportunity.

My greatest worry is not, as convention opponents argue, that special interests will derail a convention by getting it to place harmful proposals on the ballot. If special interests do corrupt a convention—and they will certainly try—the people have shown they can be trusted to veto the resulting proposals. This, after all, is why New York’s and other states’ most powerful special interests hate the institution of the state constitutional convention and have spent so much to oppose convening one: they are more confident in their typical, ongoing control over legislatures.

A greater worry should be that New York’s opinion leaders, including its press, academics, advocates, and politicians, will continue to treat democratic innovators the way Chinese Mandarins did during the era when the United States was founded. New York needs to breed a new generation of Alexander Hamiltons, and the time to begin that effort is now.

New York, despite its vast human and material wealth, has become too much like 18th century China, when China was a vastly larger, more sophisticated, and more prosperous country than ours but became arrogant and thus complacent in its superiority. New Yorkers should look to democracies, including Estonia, Iceland, and Sweden—two of them about the size of New York when it drafted its first constitution—where a can-do culture of democratic innovation survives.

New York, like China thought it was for hundreds of years, remains at the center of the world. But it won’t remain there unless it proves capable of developing an outward looking culture characterized by both constitutional humility and innovation.

This is part one of a two-part series entitled Needed: Fresh Eyes to Improve New York’s Constitution. Read part two: Implementing First Amendment Values in the 21st Century. And, read other columns by J.H. Snider here.

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Trump's Speech, a Nightmare for Democrats


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President Donald Trump (photo: @POTUS)


In the weeks before Donald Trump’s address to Congress, the main topic of conversation among Democrats was not how to make the president look incompetent and unfit—it was how to best exploit the fact that he so clearly is.

We underestimated him.

In the biggest political rope-a-dope of all time, after setting the bar as low as he could during 40 days of tumultuous terribleness and a chaotic campaign, Trump delivered a well-crafted, coherent and populist-yet-serious speech on Tuesday night. His presidency re-started today, powered by its success.

In other words, this is the Democrats’ worst nightmare.

As unpopular a president as Trump is, a high percentage of American voters approve of his policies when they put aside their personal feelings about Trump himself. That means he may still be able to be a well-thought-of president—if he can just act, well, presidential.

And that’s what he did last night.

Trump will now undoubtedly get a bump up in polls. He may even get a bit of a honeymoon period here similar to what presidents normally receive when they are first elected. It’s even possible most of the country will temporarily forget just how badly he and his people bungled the beginning of his presidency.

But the really scary thing for Democrats isn’t the speech; it’s what was in it. Though there were plenty of the same divisive ideas that are sure to enrage the liberal base, there was also plenty of bi-partisan policy and sentiment that is tough to argue with.

Ironically, that was the same strategy as another Comeback Kid, who just happens to be the husband of the Democratic candidate Trump beat in November. Yes, in addition to the red meat he threw his base, President Trump attempted to triangulate his way out of trouble on Tuesday, using Bill Clinton’s method of marginalizing dissent by siding with the opposition party.

A few examples of Trump tacking left include:

--Immigration. The president seemed to indicate he would accept legal status for some undocumented immigrants, saying “I believe that real and positive immigration reform is possible.”

--Paid maternity leave. The president went way left on a favorite policy of liberals, declaring, “My administration wants to work with members of both parties to make child care accessible and affordable, to help ensure new parents that they have paid family leave.”

--Lowering the cost of prescription drugs. Traditionally an issue for Democrats, Trump announced (for the umpteenth time) that he would “work to bring down the artificially high price of drugs.”

Trump also made plenty of inarguable - and stereotypically presidential - statements in his speech. He decried hate crimes. He called for unity. He laid praise on the military. Sure, some of it sounded hollow and pandering. But he didn’t smirk or flub or appear indifferent. In fact, he delivered the lines believably.

You’d have to remember that he has said racist things, divided Americans for his own benefit, and criticized a war hero for getting caught by the enemy to be offended by his duplicity. A lot of Americans won’t.

And to be turned off by his false statements, of which there were plenty, you’d have to know they were false. For the record, these included the claims that Americans live in “lawless chaos” (American crime rates are near all-time lows), “Obamacare is collapsing” (20 million more Americans have health insurance now who didn’t before the health plan was passed), and our country is undergoing the “worst financial recovery in 65 years” (75 months of straight job creation and historically low unemployment).

And, by God, it was great TV.

Maybe that shouldn’t be a surprise. After all, Trump is the producer of a top-rated show. But maybe you would think that a Trump-produced address of Congress would be too over the top to be convincingly earnest. It wasn’t.

The most memorable moment of the evening – or of any presidential address of Congress in recent memory – was the moving memorial for Senior Chief William Ryan Owens, a Navy SEAL killed in a counter-terror operation in Yemen. His wife, Carryn, appeared to be speaking skyward to her late husband as the chamber stood and applauded. The applause lasted for several minutes. Then, the president quoted the Bible in eulogy.

Perhaps Trump’s communications team was thinking more about the effect that moment would have on its principal’s approval rating than the importance of it for the widow and the appreciation of the ultimate sacrifice of a soldier. Perhaps not. It doesn’t matter. It made the president look presidential.

But the Democrats do have one thing going for them: this was just a speech. Today may be a brighter day for Republicans and the White House—but sunlight is the best disinfectant, and only progress on the president’s promises will allow him to maintain his momentum.

Plus: Trump is Trump. If history is any guide, he does not have the discipline to stay on message for more than a short time.

So chalk one up for Team Trump. And Democrats beware. But leading a divided nation, convincing a cantankerous Congress and advancing a bi-partisan agenda is a lot harder than reading off of a Teleprompter.

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Evan Thies is the co-founder of Pythia Public Affairs. On Twitter @EvanRThies.

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To Secure Our Children’s Foundation, Honor Foundation Aid for Schools


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Public Advocate Letitia James, the author, with two children (photo: @TishJames)


With so much uncertainty in our country, there’s never been a more critical time to invest in our future and safeguard opportunities for our children. That’s why we must ensure that education funding is protected and our schools have the resources to prepare students for college and the job market.

Our children cannot perform at their best in overcrowded classrooms with outdated technology and slow internet access -- or, for that matter, with an obsession with test scores over well-rounded instruction. Our children cannot perform at their best if school libraries are closed, music and art classes are cut, and there is limited access to advanced courses. And our children cannot perform at their best if there is one guidance counselor for 800 students and no English language learning classes.

Perhaps unsurprisingly, the lack of funding that often leads to unacceptable educational environments disproportionately impacts low-income students and students of color. New York City is home to one of the most segregated school districts in the country, where 96 percent of black and 95 percent of Latino students attend majority low-income schools. Within this system, over three quarters of our public school students qualify for free or reduced-price school lunch, a universal metric for student poverty.

Every day that these students attend underfunded schools, they face both immediate setbacks in their daily lives and harm that is damaging to their futures. A recent study found that a 10 percent increase in school funding available for a low-income student results in a 9.5 percent increase in that student’s earning as an adult. With New York City schools owed almost $2 billion from the state, this is a legal and moral failing that we can no longer allow to persist.

While there is across-the-board agreement on the need to address these challenges, as a state we still haven’t put our money where our mouth is.

In 1993, New York City school parents sued New York State for failing to provide their children with the quality education they deserved. After a 13-year legal battle, in 2006, the state’s highest court found that New York State was failing to provide every student with the opportunity for a “sound basic education” due to lack of adequate funding.

Following the landmark ruling, then Governor Eliot Spitzer and the New York Legislature created the Foundation Aid formula to ensure schools in New York State were being funded. For two years, New York State increased funding to public schools -- a welcome boon to students who were struggling to receive sound basic education. Then the Great Recession hit and spending was cut across sectors, including education. This effectively reversed the two years of increases and further cut already lacking funds.

Our economy rebounded from the recession years ago, but funding for our schools has not been restored. Put simply: our state government refuses to prioritize the education of our students in public schools.

It’s alarming that Governor Andrew Cuomo’s proposed 2017-18’ budget does not adhere to the Foundation Aid formula – a failing that will rob our schools of the resources they are entitled to.

If we believe a high quality education is the foundation for our children’s success, the Governor and the Legislature must restore Foundation Aid and live up to our state’s legal and moral responsibility.

We owe it to our children.

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Letitia James is the Public Advocate of New York City. On Twitter @TishJames.

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