Law professor advocates for constitutional convention

James A. Gardner, constitutional law expert and SUNY Distinguished Professor in the UB School of Law, has an easy-to-understand reason why he is vigorously — even passionately — in favor of the coming Nov. 7 ballot question of whether to hold a constitutional convention.

“As many members of the New York State Legislature have been indicted as have been defeated,” says Gardner, a nationally recognized scholar in constitutional and election law who has studied state constitutions for more than 25 years.

“To me, you don’t have to say any more than this.”

For Gardner, whose accolades include receiving the highest honor given by the UB School of Law and its Alumni Association, the argument to support the constitutional convention is basic.

“There is one reason that completely overwhelms the others, and that is we in New York lack a functioning democracy,” he says. “It’s a simple as that.”

Gardner says the fact that as many legislators have been indicted or resigned in disgrace in the past six years as have lost an election shows why the state constitution needs drastic reform.

“What it shows is that the New York State Legislature is unaccountable and corrupt,” he says. “Laws are not made in a deliberative process on the floor of the legislature, as the constitution contemplates. They are made by three men, lately four men, in a room on the second floor of the Capitol.

“That’s not how the process was supposed to work. The legislators are completely unaccountable. They’re gerrymandered into permanent incumbency for as long as they want it. So there is no incentive for them to be responsive to public opinion.

“It’s been going on for 40 years.”

Gardner knows that some groups — including public employee unions — oppose the convention.

“‘Why’ is a difficult question to answer,” he says. “I know what they’re saying, but what they’re saying doesn’t make sense. So I wonder if those are the real reasons.

“The only groups I know of right now who are opposed to a convention are public employee unions. What they seem to be saying is that there is a threat that existing pension rights could be lost at a constitutional convention. In other words, delegates would meet, and for some reason they would try to rewrite the constitution to harm the pension rights of public workers.”

Gardner calls this “impossible” and “absurdly unlikely.”

“It’s impossible because pension rights of public workers in New York State are already protected by the U.S. Constitution’s Contract Clause,” says Gardner, a member of a prominent pro-constitutional convention group called the Committee for a Constitutional Convention. “And there is no possible way it would be legal under the U.S. Constitution to take away pension rights that are already vested in public employees of New York State. So it’s impossible for that reason.

“The second thing that strikes me as strange about this position is that it is absurdly unlikely. This is New York. This isn’t Texas or Arizona. It’s a progressive state. This state went for Hillary Clinton by an almost 2-1 margin. Chuck Schumer, one of the most liberal members of the Senate, was re-elected with 71 percent of the vote. So who are the people going to elect to a convention that are going to take away the pension rights of public employees?

“I’m a member of a public employees’ union,” Gardner says. “I disagree completely with their position.

“It depends on your views of how things are running,” he says. “If you are content with how things are running, I don’t think there is any reason to want to have a constitutional convention. I think most people are fairly well-convinced things are not running very well in New York State right now.

“Too many of our legislators are corrupt. Obviously, not all of them. But many of them. The two most recent legislative leaders have been convicted of crimes. These are faults that cry out for reform. I assume those are causes the constitutional convention would most intensely take up.”

If the ballot to hold a constitutional convention — known as Con-Con — does pass in November, the next step would be to elect delegates to that convention, according to Gardner. That would occur in fall 2018.

“At that point, a convention would be seated,” he says, “and it would likely complete its work in time for a referendum placed before the voters in 2019.

“I’ve studied state constitutional law for 25 years. In New York, if you put your nose into it, it smells. I think we need a constitutional convention quite badly.”