A Brief History of the Mechanisms of Constitutional Change in New York and the Future Prospects for the Adoption of the Initiative Power
The historical traditions of constitutional change in New York suggest at least two major themes that have guided the development of the powers of constitutional change since 1775. First, there has always been a pervasive concern for ensuring that no one individual or group, whether the people, the legislature, or the convention, has too much control in the constitutional process. Second, and attendant to that concern, the will and sovereign power of the people have been deeply involved in the constitutional revision and amendment process, but all involvement has been filtered and controlled by the established mechanisms of constitutional revision in general, and by the legislature specifically. In comparing these two themes with the nature of the initiative power, particularly as it has been articulated in New York, I conclude that the initiative power is generally inconsistent with New York's well-established constitutional change traditions.
This observation may be especially important for a few reasons. First, many observers argue that New York's framework for effecting constitutional change is broken. If New York's framework for constitutional change is broken, the question becomes, can it be fixed? Indeed, as a threshold matter, it may not be possible. So where does that leave New York's power of constitutional change for the future?
Looking to the existing framework, the potential for achieving a breakthrough in the constitutional revision process seems bleak. The ineffectiveness of conventions to achieve broad constitutional changes over the last fifty years and the evolution of partisanship in New York's political landscape suggests that conventions are not sufficient. While this ineffectiveness has also resulted in establishing incremental change through the increasingly partisan legislative amendment process as the only remaining viable method of constitutional change, even the legislative process has not succeeded in achieving effective change, much less comprehensive improvements to the existing constitution as a whole or the mechanisms of constitutional change in particular.
Moreover, this ineffectiveness, combined with the traditional distrust of government and the overarching theme of ensuring that those in government power do not have too much control in the constitutional process, suggests that a time may be coming in the not too distant future that an alternative to the current domination of the constitutional process by the legislature may achieve enough popular support to warrant a change in New York's constitutional revision framework.
Consequently, this Article argues that some variant of the initiative power may be the remedy sought to address the deficiencies of the existing mechanisms of constitutional change. Indeed, proposals for the introduction of the initiative power have achieved increasing levels of success in the New York legislature in recent years. The question of whether or not providing such a power is an effective or appropriate means of constitutional change, however, is complex and cannot be answered easily. But what can be said is that the adoption of an initiative power without extensive limitations would not follow in New York's long tradition of limiting popular involvement in the constitutional process and diffusing constitutional control amongst the legislature, constitutional conventions, and the people.