By Jimmy Paulino, Esq., Goldberg Segalla LLP
This week’s Bar View guest author is Jimmy Paulino. The views expressed in this piece are those of the author and are not intended to represent those of the MCBA or its board of trustees.
To paraphrase the Declaration of Independence: Don’t hate the players; change the rules of the game. Thankfully, under both the New York and United States Constitutions, there is a mechanism for us to do just that, by updating the basic structure of our governmental systems to include additional protections against abuses of power by our public servants. In a world where “updates” are a part of our daily lives—from cars to phones to watches to thermostats—and after centuries of technological and social advances—from mass transportation to instant communication to 24-hour news—isn’t it about time we contemplated an American and New York State Government 2.0?
For as long as I can remember, people have complained about our government, both in Washington DC and Albany. As Election Day approaches, those complaints have taken a second seat to the national debate (aka dispute) over which candidates can help fix the problems plaguing both our state and federal systems. But…if history is any teacher…do we honestly think that a new (or recycled) politician can foster comprehensive and permanent changes? Or, is it time We the People took matters into our own hands, and updated the basic rules of the game to account for the realities of the 21st Century, like runaway spending, constant lobbying, billion-dollar campaigns, and representatives who work half as much as regular citizens?
In 1776, the first Americans realized that the problems they faced did not stem from George III’s abuses of power, but with the basic structure or “form” of the existing system—one that placed all government power in the hands of a select few, creating infinite opportunities for abuses or, 18th Century parlance, tyranny. The solution, masterfully explained by Jefferson, was a “political” exodus from the British “Form of Government,” and an institution of a “new Government…organizing its powers in such form as to them shall seem most likely to effect their Safety and Happiness.” Under the organizing documents for this new system, the ability to alter the form on a regular and ongoing basis was institutionalized, but for some reason we have failed to take full advantage of these tools and opportunities to form a “More Perfect Union.”
On November 7, 2017, New Yorkers have the opportunity to call such a Convention by ballot referendum, as our Constitution requires the following initiative every 20 years: “Shall there be a convention to revise the constitution and amend the same?” And, under Article V of the federal Constitution, the United States can call their own convention at any time, upon the request of 2/3 of the States (but it’s never been done before). These tools provide a unique vehicle among modern democracies to improve the system, and solve some of the fundamental problems plaguing Albany and Washington DC. In this author’s opinion, we must take full advantage of this process, if only to conduct a critical self-evaluation following centuries of social and technological change and confirm there is no room for improvement.
So…what might we change? Term limits, spending limits, campaign finance limits, and streamlined judicial nominations are some standard proposals at both the state and federal level. Our collective two centuries of experience can inform any proposed amendments, including the fact that politicians generally lack self-control when it comes to spending taxpayers’ dollars, and we can adopt penalties for failure to balance the budget such as ineligibility for re-election. The sky is the limit, and we are constrained only by our imaginations…and a fundamental commitment to protecting inalienable rights. But, until we seriously consider a convention, and spend time imagining a Government 2.0, there can be no change.
One proposal in New York is worth highlighting—an amendment to decentralize or regionalize State power, also known as a “home rule” amendment. No one can deny that the divide between Upstate and New York City has expanded exponentially over the past two-hundred years, easily seen in bills from Albany applying only to cities with populations over one million. More importantly, our experience has shown us that centralization of power breeds abuses, and that, in the modern “go local” movement, no two communities are the same, and laws and regulations are rarely one-size fits all. Stated simply, the constitutional convention is the only way to consider this issue…and 2017 is the only opportunity to call a convention for another two decades.
Over the next year, we will hear more about the State Convention, which was derailed two decades ago by fears of eliminating guaranteed pensions. As Jefferson commented, maintaining the status quo, even if riddled with abuses, is our default mentality—but, there comes a point in time where citizens must critically assess their situation, and take action in the name of justice. November 7, 2017 is such an opportunity.
The American Revolution was not simply a war against the British Monarchy—it was an assault on any power structure not premised on the absolute and equal sovereignty of every citizen. And, that assault was not intended to end with Independence Day, but to continue throughout the great American experiment in self-government. That’s why Jefferson wrote of the right to “to alter or to abolish” forms of government, and why our Constitution, written by Gouverneur Morris (the most forgotten and brilliant Founding Father, and author of both the New York State and federal Constitutions) was adopted to form a “More Perfect Union.” As Americans, and as people committed to liberty and justice for all, it is our duty to continue the work of our Founders in guarding against abuses of power in government, and to remain vigilant against tyranny in any form, whether from a royal or duly-elected representative.
As Election Day approaches, Americans must ask themselves whether the new crop of politicians really hold the keys to permanent improvements, or if we instead need an update to the basic blueprint for the entire system, and to formulate a streamlined and secure Government 2.0.