Sunday, May 7, 2017

Commentary: Convention Unlikely to Undo Protections for Forest Preserve (Part II)

Article 14, Section 1 New York State Constitution Forever Wild clauseWhat follows is the second of three essays about the vote coming this November on whether New York State will hold a Constitutional Convention.  This is part two of a commentary by Christopher Bopst and Peter Galie. An essay opposing a convention by Adirondack historian Philip Terrie will run on Sunday afternoon.

Part I of this two-part article discussed the history of the forever wild provision since its adoption by the Constitutional Convention of 1894. The absolute nature of the prohibition has made it the most amended section of the New York State Constitution (Peter J. Galie & Christopher Bopst, The New York State Constitution, 2d ed. (New York: Oxford University Press, 2012), p. 312). Despite the number of amendments to the provision during the last 120 years, most of the forest preserve has retained its wilderness character, and the preserve has expanded significantly since it was first created. The preserve has functioned both as a success story and a point of pride that New Yorkers can take in their state constitution.

Gerald Benjamin, one of the state’s pre-eminent political scientists, notes the necessity of an alert and committed constituency in support of a constitutional limit once it is established. If such a constituency exists, it is further empowered by the constitutional basis of the policy outcome it seeks to protect (Gerald Benjamin, “Gaming the Constitution: Why New York’s Constitutional Gambling Prohibition Does Not Prohibit Gambling,” in New York’s Broken Constitution: The Governance Crisis and the Path to Renewed Greatness (Peter J. Galie, Christopher Bopst & Gerald Benjamin, eds.) (New York: SUNY Press, 2016), p. 275). If a constitutional limitation maintains strong support, it will remain effective. A constitutional limitation that loses its public support over time will lose its effectiveness, either by limiting amendments or extraconstitutional changes.

Let’s look at two constitutional prohibitions that have not fared as well as well as the forever wild provision.

Gambling Prohibition

A prohibition against gambling was added to the constitution by the 1894 convention, the same body that added the forever wild clause. As adopted, the prohibition read:

“No law shall be passed abridging the right of the people peaceably to assemble and to petition the government, or any department thereof; nor shall any divorce be granted otherwise than by due judicial proceedings; nor shall any lottery or the sale of lottery tickets, pool-selling, book making, or any other kind of gambling hereafter be authorized or allowed within this State; and the Legislature shall pass appropriate laws to prevent offenses against any of the provisions of this section. (N.Y. Const. of 1894, art. I, sec. 9).”

Since its adoption, this provision has been eviscerated by constitutional exceptions. The slow march to virtual elimination started in 1939 with an amendment authorizing pari-mutuel wagering on horse races, and has included exceptions for: (1) bingo and lotto games conducted by bona fide religious, charitable or non-profit organizations (added in 1957); (2) a state-operated lottery system with proceeds being applied for education (added in 1966); (3) games of chance by religious and non-profit organizations (e.g., Las Vegas nights) (added in 1975); and (4) seven casinos to be located throughout the state (added in 2013). In addition to the constitutional exceptions to the prohibition, opportunities for legal gambling in the state have also been expanded by extraconstitutional means such as the negotiation of Indian casino compacts between the state and its Native American tribes, the emergence of video lottery games, and the state’s participation in multi-state lotteries such as Powerball and Mega Millions, none of which were specifically authorized by voters.

So many exceptions to the gambling prohibition exist that it is hard to see what remains of the original ban. If the purpose of the gambling prohibition was to prevent state residents from gambling, it is an unqualified failure.

Gift and Loan Prohibitions

Following the state’s near-default on its debt resulting from the financing of transportation and banking projects, the state added constitutional provisions in 1846 and 1874 prohibiting gifts and loans of state and local money and credit to private companies (N.Y. Const., art. VII, sec. 8; N.Y. Const., art. VIII, sec. 1). One need only glance at the front pages of the newspapers to discover that, notwithstanding these bans, a considerable amount of public financing of private investment occurs regularly.

The state and its municipalities have used a variety of constitutional and extraconstitutional methods and legal legerdemain to weaken the gift and loan prohibitions. Constitutional amendments have been passed exempting from these prohibitions obligations undertaken for specified purposes, such as for the aid, care and support of the needy (N.Y. Const., art. VIII, sec. 7), the education and support of dependent children (N.Y. Const. art. VIII, sec. 1), and the construction and modernization of hospitals (N.Y. Const., art. XVII, sec. 7). Moreover, the legislature has resorted to such devices as public authorities and contracts with illusory consideration to completely circumvent this prohibition. As an example, once the legislature gives money to a public authority, that money is no longer considered “state money,” and can then be distributed to private companies without running afoul of the gift and loan prohibitions. (Bordeleau v. State, 2011). Such expansive readings of the clauses make aiding private enterprises with financial incentives no more difficult than it was before the prohibitions were adopted.

The history of these two prohibitions is a far cry from forever wild, where, despite 19 amendments to the clause, the forest preserve remains almost as wild today as it was in 1895 when the provision took effect. What accounts for this difference?

The answer is that the consensuses that existed to support the adoption of the prohibitions against gambling or the giving or lending of public money no longer exist, while the consensus that supported making the Adirondacks forever wild has actually been strengthened.

Social attitudes about gambling have changed dramatically since 1894. Gambling has become mainstream, with celebrities often seen playing high-stakes poker, and the erosion of the gambling prohibition is evidence of that change. The same thing can be said about the gift and loan prohibitions. Given the fierce competition among states (and internationally) for companies to locate within their borders, economic development agencies and decision makers see these prohibitions as anachronistic straitjackets — inconveniences that need to be overcome rather than constitutional mandates to be obeyed.

That has not happened with forever wild. There is a respect — even a reverence — for the prohibition that has persisted over 120 years and three intervening constitutional conventions. Indeed the constituency and consensus that supports forever wild has, if anything, grown in size and strength. In the intervening 120 years since passage of forever wild, the environmental movement has grown much stronger, thanks to events such as the publication of Rachel Carson’s Silent Spring (1962), the observance of Earth Day (beginning in 1970) and the efforts of climate scientists throughout the world. A 2016 poll from The Nature Conservancy found that 90% of New Yorkers support Governor Cuomo’s Clean Energy Standard goal for 50% of all electricity consumed by New Yorkers to come from clean energy sources by 2030 and that 84% of respondents were convinced by the support message that the time has come for us to take hold of our energy future so that our children and grandchildren will live in a state that is less dependent on fossil fuels and more focused on clean and renewable energy. (Dave Metz & Lori Weigel, New York Voter Attitudes on a Cleaner Energy Future: Reforming the Energy Vision, March, 2016, available here (accessed April 22, 2017), pp. 16-18).

To this end, a constitutional convention would likely prove an asset to those concerned about the state’s commitment to the environment. As many environmentalists worry about the impact a Trump presidency will have on natural resources, a state constitutional convention is the state’s opportunity, independent of the federal government, to follow in the footsteps of their nineteenth century forebears and to take further bold steps that reflect our deeper knowledge of and commitment to preserving the environment.

Six states have already taken such action in their constitutions, adopting provisions establishing a healthy environment as a constitutional right or mandating that a healthy environment be maintained for future generations. A few, like Pennsylvania and Hawaii, go further by declaring that public natural resources are the common property of all the people (Pa. Const., art. I, sec. 27; Haw. Const., art. XI, sec. 1). A constitutional convention could recommend to the voters an amendment that requires the state and its municipalities to proactively protect our air, water, and climate. Doing so would enable New York to resurrect its century-old commitment to environmental protection, and is a far more likely outcome than any undoing or severe undermining of the forever wild provision of the state constitution.

The New York State Bar Association’s Committee on the New York State Constitution shared this view in its Report on the Conservation Article, writing:

“Throughout its history, there has never been broad-based public support for repealing or diluting the forever wild protections, and nothing in the lengthy record of past Conventions and amendments to Article XIV suggest that delegates to a 2019 Convention would seek to do so. In any event, worries over the forever wild clause’s future should not inhibit study and robust debate over other provisions in Article XIV. Simply put, while there is no reason to modify the forever wild clause, opportunities to simplify and enhance other provisions in Article XIV merit serious consideration by policymakers and the public.”

(New York State Bar Association, Committee on the New York State Constitution, Report and Recommendations Concerning the Conservation Article in the State Constitution (Article XIV), August 3, 2016, available here (accessed April 22, 2017), p. 4).

Throughout the twentieth century, constitutional conventions have focused their efforts largely upon the matters that precipitated their convening. The 1915 convention occurred during the heyday of the Progressive Era, and emphasized efficiency and modernity through such proposals as the short ballot, the executive budget and executive reorganization. Called during the Great Depression, the 1938 convention adopted new articles for Social Welfare (Article XVII) and Housing (Article XVIII), defining the role of the positive state in New York. The 1967 convention, convened in the wake of the one-person, one-vote decisions of the U.S. Supreme Court and held during an era in which the Model State Constitution was emphasizing streamlined state constitutions, adopted an independent redistricting commission, allowed for a proactive role in addressing community needs, and produced a constitution (ultimately rejected) that was half the size of the existing document.

As we approach the 2017 vote, New Yorkers are focused on public corruption and dysfunctional government. In late 2015, both legislative leaders, Sheldon Silver and Dean Skelos, were convicted of felonies committed through the use of their offices. A poll taken last year showed that 93 percent of New York voters believe corruption in state government is a very serious or somewhat serious problem (Mike McAndrew, “Poll: 97 Percent of NY Voters Want New Laws to Combat State Government Corruption,” The Post-Standard (Syracuse, NY), May 3, 2016, available here (accessed April 16, 2017). The legislature has placed an amendment on the ballot this November to strip pensions from legislators convicted of felonies related to their office, but session after session has failed to produce any reform that would prospectively address the sources of corruption in New York. It is clear that meaningful institutional reform in New York will not occur absent a constitutional convention. Is it in the best interests of the state to hold such reform hostage to fears that ignore the history of forever wild since 1894; ignore the history of New York constitutional conventions as progressive vehicles; and ignore the overwhelming popularity of forever wild among people of all ideologies?

There is no reason to believe that a constitutional convention would have the political will and lack of good judgment to attempt to tear down or seriously impair one of the most popular, enduring, and endearing provisions of the state constitution. Furthermore, there is no reason to believe that the voters of the state, who have the final word on what is adopted, would ever accept any impairment of forever wild. There is, however, a reason to believe that the corruption and institutional dysfunction that have plagued New York for decades will not be remedied absent a constitutional convention. So we would say to Adirondacks lovers, feel free to vote “yes” on a convention this November knowing that the provisions about which you care deeply will remain safely intact; that the environmental resources not currently receiving constitutional protection may receive the constitutional protection they require for future generations, and the state’s lingering governing problems may be ameliorated — outcomes that would be a fitting tribute to the delegates to the 1894 convention who took that first step towards a world in which humanity and nature might find peaceful coexistence.

Christopher Bopst is Chief Legal and Financial Officer at Sam-Son Logistics in Buffalo, New York. He is the co-author with Peter Galie of The New York State Constitution (Oxford University Press, 2012), and co-editor with Peter Galie and Gerald Benjamin of New York’s Broken Constitution: The Governance Crisis and the Path to Renewed Greatness (SUNY Press, 2016).

Peter Galie is Emeritus Professor of Political Science at Canisius College in Buffalo, New York. He is the author of Ordered Liberty: A Constitutional History of New York (Fordham University Press, 1996), co-author with Christopher Bopst of The New York State Constitution (Oxford University Press, 2012), and co-editor with Christopher Bopst and Gerald Benjamin of New York’s Broken Constitution: The Governance Crisis and the Path to Renewed Greatness (SUNY Press, 2016).

Photo: Article 14, Section 1 New York State Constitution Forever Wild clause.


Guest Contributor

The Adirondack Almanack publishes occasional guest essays from Adirondack residents, visitors, and those with a biding interest in the Adirondack Park.

Submissions should be directed to Almanack editor John Warren at adkalmanack@gmail.com.




One Response

  1. Bruce says:

    As so clearly pointed out, not having a Constitutional Convention on the basis that Forever Wild provisions ‘might” or “could” be abrogated will only delay issues much on the minds of NY voters, such as political corruption. Many speak of corruption in Albany, and November’s CC vote represents an opportunity to do something about it.

    In other words, those who are corrupt would like very much to see a “NO” vote on the CC, because it will remove one opportunity the people have to deal conclusively with their shenanigans.

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