an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Further thoughts on constitutional reform in New York
I may have been unfair to California in some of my comments a couple of weeks ago, for New York's legislature must be, by any reasonable account, the most truly dreadful in the country right now. So the obvious question is why is a sophisticated state like New York saddled with a legislature that would bring shame to most "third-world" countries? There is an interesting piece in the New York Times discussing this. I excerpt some of the key paragraphs below:
.... [F]or those wondering how Albany could have sunk to the level it has, with the State Senate unable to function, one good answer is the extraordinary comfort among the state’s legislators that comes with knowing that they will almost never be voted out of office.... Last year, more than half of the 212 legislators in the Senate and Assembly won with more than 80 percent of the vote. Fifty-seven ran unopposed,.... The average senator has served for nearly seven two-year terms.
So, to quote Lenin, what is to be done?
[The piece notes that Rudy Giuliani] called for a constitutional convention to initiate a broad government overhaul. Gov.David A. Paterson said that a convention would inevitably be run by “the same special interests that have come to dominate establishment Albany,” and suggested passing campaign finance reform legislation.
Others have called for Senate leaders to resign. Rick Lazio, a Republican weighing a race for governor, said that the state should scrap the entire Legislature and begin anew with a single house.
Paterson's point is relevant if and only if the selection process for a state constitutional convention is skewed in favor of the status quo. The easiest way to prevent that is by random selection of a state-wide "citizen jury." As for Lazio's idea, I tend to think that New York, like Texas, is probably large enough to benefit from a second house, but that one could be far more imaginative in constructing a second house than is now the case in the states, where senators are simply represenatives with more constituents in geographically larger areas. But I commend Lazio for actually suggesting that structures might matter, and that looking at the structure of New York's legislature might be more cogent than passing a campaign finance bill that would be spectacularly unlikely to cure the ills that ail New York politics. And maybe Lazio is right, that New York could in fact emulate Nebraska in its unicameralism or, perhaps more to the point, follow the model of the United Kingdom, which retains a second house, but with very limited powers. American bicameralism, at the state as well as national level, is relatively atypical in giving each house an absolute veto over the actions of the other. Most bicameral systems have ways of breaking deadlocks.
Wouldn't it be wonderful if constitutional conventions occurred in the next couple of years in both New York and California and ordinary citizens, selected at random, actually demonstrated that cogent discussion, and even some relevant reforms, are possible even in the states that currently lead the way as examples of completely dysfunctional political systems? Perhaps federalism would actually work, for once, and provide a model of democratic deliberation that might actually register on the general American public with regard to the national political system. I realize this is probably a utopian hope, but is the alternative simply to accept, like sheep, the status quo in California, New York, and the country at large, regardless of the consequences for the ordinary people being subjected to the dysfunctionalities? New York and California don't have to have a Grand Ayatollah that suppresses popular revolt. Instead, people simply believe that nothing can be done. The System prevails, as life goes on and we all hope for the best.