Sunday, May 7, 2017

Philip Terrie: Constitutional Convention Could Hurt Forest Preserve

Article 14, Section 1 New York State Constitution Forever Wild clausePhilip Terrie’s commentary is the third of three essays about the vote coming this November on whether New York State will hold a Constitutional Convention.  The first commentaries, by Christopher Bopst and Peter Galie, can be found here.

In the American political climate of 2017, is it really a good idea for people to insist that they can accurately predict the future? Peter Galie and Christopher Bopst appear to think it is. They claim that a constitutional convention (concon) will not diminish the authority of the provision in our current constitution – Article 14, Section 1 – stipulating that the state Forest Preserve be “forever kept as wild forest lands.” Their argument advances the case one hears circulating all around the state these days, as we gear up for the vote in November, 2017, when New Yorkers will vote yes or no on this simple question: “Shall there be a convention to revise the constitution and amend the same?” If this passes, delegate elections will he held in 2018, and the concon will sit in 2019. A vote on a new constitution would probably be held in November, 2019.

Along with a committee of the New York Bar Association, the League of Women Voters, and other prominent organizations, Galie and Bopst, duly noting both the culture of corruption in Albany and the labyrinthine and antiquated nature of much of what we have now, ask us to approve a concon and seek to convince those of us who have spent a good part of our lives defending the forever-wild provision that nothing bad can happen. Count me as unconvinced.

If a concon is called, we will vote to approve or reject a new constitution two and a half years from now. In the spring of 2014, who thought that Donald Trump could possibly be elected President of the United States? A few people obviously did, but conspicuously absent from the believers were the political scientists and good-government types who confidently tell us now what a New York concon will or will not do. Way back then, they consistently told us, a Trump presidency would never happen. Now they are saying that Article 14 is safe from any depredations at a concon. Why am I not assured?

Consider this: who would have believed a few years ago that labor-friendly Michigan, home of the United Auto Workers, would ever be a so-called “right to work” state”? These are strange times politically, and well-applied money can buy judges, laws, and politicians. It can also buy delegates to a concon.

If a concon is approved, delegates will be elected according to an already established and legally unchallengeable formula: three from each senate district and fifteen state wide. New York has 63 senate districts; they are big, with multiple media markets; a successful campaign for those seeking to be delegates will cost a lot of money. In 2014, the last year for which I could find numbers, over $60 million was spent on NY senate races. And bear in mind that many of the senate races that year were not seriously contested.

If we have a concon, huge sums of money will be spent by wealthy individuals, PACs, and corporations, many from out of state, to get sympathetic delegates elected. This will not be a people’s convention. It will be populated by political insiders, lobbyists, and current legislators and judges, just as previous concons have been. These are the same people who run Albany right now.

I have heard advocates of a concon dismiss as wild paranoia the idea that it could be brokered by the Koch brothers. When I look around this country and see what special interests and their money can do to subvert the public good, I don’t think it is the least paranoid to at least acknowledge the genuine possibility that a New York concon could be considerably less benign than Galie and Bopst so confidently predict.

What about the Forest Preserve? What about their argument that it is so revered, so historically enshrined, that no concon would ever dare diminish it?

For well over a century, ever since this provision was written into our constitution in 1894, New York’s natural-resources bureaucracy has resisted its strictures. It has proposed and implemented developments that significantly violated the forever-wild mandate. Beginning with state campsites developed after World War I, the state has frequently tried to get around forever wild. State officials wanted to construct a bobsled run on state land in 1930; after the great blowdown of 1950, they argued for the introduction of commercial logging; they built barns for horses in Cold River Country in the late 1960s; they have recently laid out wide, road-like snowmobile trails in roadless areas in the Forest Preserve.

Taken one at a time, these may not seem all that threatening, but they must be understood as a consistent, relentless pattern, one that has manifested itself with particular vigor in the administration of Governor Andrew Cuomo. The Governor’s office, ostensibly with the Governor’s approval, wants to develop part of the Boreas Ponds tract for people who don’t want to backpack or carry their own food. They’re proposing some sort of lodging and dining arrangement that would bring the perverse activity known as “glamping” into the Forest Preserve. Is that “forever wild”? Or is that a brazen attempt to redefine the purpose of the Forest Preserve?

The Governor appears to find the current constitutional provision to be a limit on his inclination to turn the Forest Preserve into a source of income for local businesses. He will undoubtedly be the most powerful figure at a concon, whether he sits as a delegate or operates behind the scenes. Will he demand that the historic protections now inscribed in Article 14 be “clarified” in such a way as to permit the century-old dream of diverting the management of the Forest Preserve away from preserving wilderness to promoting economic development?

At every concon since 1894, special interests have tried to modify Article 14. At first it was to permit logging on state land; later it was to change the wording of that provision to broaden the authority of the state to develop the Forest Preserve for non-wilderness recreation. As Galie and Bobst admit, the 1967 concon did exactly that. The Froessel amendment, which significantly expanded the legal power of the state to develop the Forest Preserve, was approved at that concon. The only reason it’s not now part of our constitution is that the 1967 concon also would have facilitated state support for parochial schools, and the people objected, voting down the entire document.

As Galie and Bopst have argued elsewhere, most notably in their book New York’s Broken Constitution, there is much that needs changing in the document that underlies all of our state’s governance. The judiciary, the budgeting process, the rules determining how the boundaries of legislative districts are drawn– these and so much more are desperately in need of reform. But it is disingenuous and unrealistic to insist with such casual confidence that the Forest Preserve would be off bounds, that a concon could not possibly whittle away at the monumental provision that has protected our Forest Preserve so well for so long.

Philip Terrie also wrote about the risks of a constitutional convention in the March/April issue of the Adirondack Explorer newsmagazine.

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


Philip Terrie


Philip Terrie is an Adirondack and environmental historian, and the author of three books on regional history, including Contested Terrain: A New History of Nature and People in the Adirondacks (2nd ed., Syracuse UP, 2008).




17 Responses

  1. I agree with Philip and would add that recent studies have shown that our representatives in congress and the state legislatures vote according to the wishes of their constituents less than 1% of the time, opting instead to follow the wishes of those who provide major campaign contributions. Why on earth would we expect any different from a constitutional convention? While I agree that the majority of voters may consider the “Forever Wild” clause to be sacrosanct, recent history indicates that rich and powerful special interests hold far more sway over what actually comes out of our elected bodies. As for the voters having to approve whatever the convention comes up with, those same wealthy supporters who get their surrogates onto the convention floor also have the ability to use the media to spin the result and convince the voters to support it. Recent elections have given me much pause to trust the outcome based on “the voters would have to approve it”.

  2. Larry Roth says:

    To paraphrase Cordelia Vorkosigan, New York’s government is a really bad system, but it can be made to work, which come to think of it describes every other form of government. The question is, work how, and for whom?

    Any constitutional convention would be organized and largely constituted by the people who are making the current system what it is. Inequality in America is at all time highs – the rich have never been richer and their power has never been greater. The odds are high that any attempt to rewrite our system of government would be highjacked by them and used to further consolidate their power over the rest of us.

    They are already close to controlling enough state legislatures to call for a convention to rewrite the U.S. Constitution. Does anyone really think billionaires have the interests of anyone but themselves at heart?

    The voting booth and good candidates are the cure for what ails us; we need good candidates to get through the primaries so we have real choices when November comes around. It’s no surprise that New York State does not have open primaries, or that you have to register for the party you want to vote for in the primary months ahead of time.

    If you are registered as an independent, you can’t vote in either the Republican or the Democratic primaries, usually held in April – and you have to have changed your registration back in the previous October if you do want to vote. This may be the only thing that kept Andrew Cuomo from being knocked off the ballot by Zephyr Teachout last time around. People who would have voted for her couldn’t. Primaries are where the real choices get made – and New York politicians know it.

  3. drdirt says:

    A constitutional amendment could guarantee the success of the new “Frontier Gateway” in No.Hudson.
    The ‘Schroon Casino’ amendment w/ public gift money to a craft brewery and water-slide resort next to the campground w/ dance hall/pub is the answer!!!

  4. Sid Harring says:

    Phil is exactly right about what the Forest Preserve is up against. Powerful special interests want to divide up and exploit this natural resource — and all natural resources including both federal and state public lands. We need to block this at every opportunity, before these special interests call, then take over this constitutional convention.

    • Todd Eastman says:

      Sid,

      It is not about powerful special interests dividing up and exploiting natural resources…

      … is about breaking the system that governs and regulates land use among many things.

    • Paul says:

      The Forest Preserve isn’t “up against this”. The Forest Preserve is growing by tens of thousands of acres including lots of new lands designated as Wilderness. Conservation easements have been placed on almost 1 million acres of private land in the park. There is no dividing and/or exploitation going on here. Quite the opposite.

  5. Paul says:

    In 2019 Cuomo will be far too busy running for president to care about this.

  6. Paul says:

    ” In the spring of 2014, who thought that Donald Trump could possibly be elected President of the United States?”

    Trump must relish the fact that he has now made it into what appears to be any conversation or discussion on any topic anywhere! I imagine that he thought that he could be elected?

  7. Charlie S says:

    Bear in mind that the Adirondacks is one of the most important water resources within New York state, that water specifically being in the area where a proposal was presented to Nelson Rockefeller to turn a good chunk of the Adirondacks into a National Park in 1967. Water is going to be the ‘new gold’ in the not too distant future and truly I believe there are designers whose desire it is to tap into those resources and what better way than “to revise the constitution and amend the same.” For one!

    You touched on this theme Mr.Terrie somewhat in ‘The Great Experiment in Conservation’ in 2009. I see nothing has changed these past eight years except for the fact that devil worshiping has only become more evident since the erection of our billionaire new president…..meaning things are going to get worse before they get better, especially in regards things ecological. Darkness is always aggravated when the Tories are in control….i’m afraid to say!!

  8. Charlie S says:

    Larry Roth says: “Does anyone really think billionaires have the interests of anyone but themselves at heart?”

    Yes… they come in million-lots and they recently erected what could be the biggest puppet yet!

  9. Charlie S says:

    “…as we gear up for the vote in November, 2017, when New Yorkers will vote yes or no on this simple question: “Shall there be a convention to revise the constitution and amend the same?”

    The questions should be, ‘how many New Yorkers really care and what can be done to get them to care?’
    Or, ‘What can be done to rouse them from their sluggish state?

  10. Robert ogborn says:

    We need to stand up for the environment now or just not do anything … nature doesn’t get a second chance …

  11. Peter S Paine Jr says:

    Phil is absolutely right on this point.The risks to Article XIV of holding a ConCon are considerable, especially under the current administration.

    Sadly, over the almost 50 years I have been involved in the debates about the Forest Preserve, one of the most persistent enemies of Article XIV has often been DEC itself, which is, of course, a creature of the Governor. The most recent example of efforts to weaken the constraints of Article XIV is the proposal to erect huts for a “Glamping” facility deep in the hear of the Boreas Ponds tract just acquired by the State from the Nature Conservancy

    • Bruce says:

      Peter,

      There seems to be some concern that the Constitution or the SLMP will have to be changed in order to establish an Intensive Use area as part of Boreas. Not so, unless you believe the entire tract is pre-ordained to be Wilderness or Wild Forest, which it is not.

      In my readings of the SLMP, I saw nothing which said Wilderness or Wild Forest cannot be adjacent to “Intensive Use.” Just look at the Loj. I might agree that it probably should not be sited next to the ponds, but closer to Blue Ridge Road, more like a trailhead.

  12. Christopher Bopst and Peter J. Galie says:

    Philip Terrie’s argument in response to our article is that New Yorkers should worry about the environment if a convention is called in spite of the evidence we presented as to the overwhelming and persistent public support for forever wild and for even greater protections for the environment (e.g., a right to clear air and water amendment). The gist of his response can be summarized as follows: “Anything can happen in two years and it will be bad.” Leaving aside the lack of evidence for this soothsaying, Terrie’s logic is problematic because it would preclude EVER calling a convention. By this position, we should never approve a con-con because no matter how much one is needed and however supportive voters are of conservation and preservation, things might change in two years. By definition the time can never be right.

    Terrie equates any attempt to balance other legitimate interests (e.g. home rule, recreational uses) as dangerous threats to Article XIV. Such rigid absolutism ultimately is self-defeating and may undermine the very real and extensive support that forever wild now enjoys throughout New York’s population–extensive support Terrie disregards in his response, perhaps because he thinks it no more than a will-o’-the-wisp easily wiped away in two years by dark money capable of buying delegates hostile to environmental interests. We disagree: The strong and persistent support that forever wild has enjoyed since inception cannot so easily be bought and sold, let alone in less than two years.

    The response ignores the fact that before the last vote whether to hold a con-con in 1997 the largest amount of money by far was spent in opposition to the convention by public sector unions, who have historically been strong supporters of Article XIV. These same unions, about one million strong, will use their money, their voters and their phone banks to elect delegates supportive of progressive causes such as labor rights, social welfare and the environment. There is not a shred of evidence that New York, a state that elected Hillary Clinton by 23 points and just adopted a state budget containing a free tuition platform originally proposed by Bernie Sanders, is making the kind of political turns that Michigan and Wisconsin have made in the past few years. The groups and organizations supporting a convention have not included extremists on either side of the political spectrum. Conservatives have not been in the vanguard of convention supporters. (The Conservative Party has recommended a “no” vote). Supporters do include good government groups such as the League of Women Voters of New York State and Citizens Union—groups which have fought to enact, strengthen and support the very rights that people now claim will be under attack by a convention.

    Terrie argues that the con-con will be politics as usual with the same old politicians and political leaders. By that, we imagine he means the same old political establishment that: adopted the forever wild clause at the 1894 convention, proposed the “Environmental Bill of Rights” at the 1967 gathering, and made the state constitution in 1938 one of the most progressive in the nation by including protections for the needy and public employees. Somehow the “same old same olds” who have supported the clause throughout their political lives as delegates will turn into a conservationist’s worst enemy? The alchemy eludes us. They will be the same old same old, but, Terrie seems to argue, they will not be the same old same old. Moreover, a governor’s role in a convention historically has been not nearly as influential as Terrie would have the reader believe, with Nelson Rockefeller’s unheeded pleas to the 1967 convention to submit their work as multiple amendments being the best example.

    Given the systemic structural defects that are disabling the state’s government, we urge those individuals who have already obtained what they want from the state constitution (e.g., environmental protections, public pension protections, aid and care for the needy, etc.) not to hold the real need for constitutional reform hostage to putative dangers that we find no support for in the state’s demographics, the state’s history or the opinions of prominent state leaders and the public.

    Christopher Bopst
    Peter J. Galie

    • Philip Terrie Terrie Philip says:

      Christopher Bopst and Peter J. Galie appear to be certain that they know what will or will not happen at a concon. They must have a crystal ball. I don’t claim–and haven’t claimed–to know what sort of document will come out of a convention. I know only that in 2017 political pundits should show a little humility when they make predictions.

      I have attended several presentations around the state on the upcoming vote. The supporters of a yes vote in November routinely dismiss the anxieties that some of us may feel about the possible diminution of Article 14’s protections. They say we’re paranoid, inventing fears where none are justified. There is a not-so-subtle sneer in their dismissal of our failure to jump on board their ship.

      A I said above, the last time we had a concon, in 1967, the delegates in fact did seriously undercut the forever-wild protection. But because so much else in the constitution submitted to voters in 1967 was objectionable, that revision of Article 14 did not take effect. The point here is that precisely the sort of change that Bopst and Galie claim could never happen was proposed and passed at that convention. What could be clearer? And that was a half century ago; the political climate is different now, more volatile.

      Bopst and Galie are clearly not familiar with current pressures on the Forest Preserve or the history of the state’s efforts to make end runs around the constitutional protections it now enjoys. The efforts of the governor’s office to develop lodging and dining facilities on the Boreas Ponds continue. That’s but one example of this administration’s drive to get this pesky Article 14 out of their way.

      Yes, there is much in our constitution that needs reform (and reforms are always possible by other means–don’t forget that). People voting on calling a concon next fall should weigh all the issues and cast an informed vote. But don’t believe anyone who tells you that there is no way a concon could weaken Article 14. I don’t know what will happen at a concon. Neither do Bopst and Galie.

      • A bit of political humility indeed. A year ago those who thought they knew the future said Donald Trump could never become president. When you have the governor pushing for projects that violate the intent of Article 14 do you really believe that there isn’t political momentum to change it? It wasn’t that long ago the voters passed an amendment that was in direct contradiction to the wording of Article 14 because of the magic word “jobs”. If we learned anything from the NYCO amendment and from the 2016 election it is that ‘most’ people don’t think that deeply about issues and can be swayed by PR that appeals to their wants or fears.

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