Celebrating New York’s 1st Constitution!
For the past few years, I have made a point to celebrate April 20th as New York Constitution — the day in 1777 when New York ratified its first constitution.
Earlier today, I took to the Senate floor to deliver remarks about Constitution Day and offered a small snapshot into the 245-year evolution of New York’s constitution.
Below is a copy of my remarks as prepared for delivery. Enjoy this fascinating and interesting deep dive into New York’s constitutional history!
Today I want to take just a few minutes to commemorate April 20th — a day that may have passed without much fanfare — as the 245th anniversary of New York becoming a state.
On April 20th, 1777, New York ratified and adopted our first state constitution in the city of Kingston.
The constitution — the first chartering document of the newly declared independent New York — was drafted primarily by prominent Founding Fathers John Jay and Gouvernur Morris — both of whom would go on to sign the U.S. Constitution in 1787, and Robert Livingston, who represented New York at the Second Continental Congress, was a member of the Committee of Five that drafted the Declaration of Independence, and administered the first oath of office to George Washington in 1789.
The process of drafting the Constitution began almost immediately after the Declaration of Independence was announced in July 1776. The New York Provincial Congress — a committee of colonists who favored independence that began organizing itself in 1775 to support the war effort — met in the City of White Plains on July 10, 1776, to begin the work of creating a new government now that the colony had declared itself free & independent.
The work of the Provincial Congress was delayed and disrupted by the imminent invasion of New York City by British forces. The Congress had to adjourn repeatedly and seek out safer locations away from the British Army — a situation that became more desperate with the Continental Army’s defeats across Long Island and New York City, and their ultimate retreat across the river to New Jersey. As winter settled in on the war effort, and the British making their winter camp in New York City, the Provincial Congress fled to upstate Kingston to continue their efforts at mobilizing for the war effort and drafting the constitution.
Finally, on April 20, 1777, with only one dissenting vote, the Provincial Congress of New York, renaming itself the Convention of Representatives of the State of New York, adopted and ratified the new constitution. Remarkably, the new constitution was not submitted to the general public for ratification or support — the ongoing war made that effort nearly impossible.
The first constitution had 42 sections, and clocked in at just under 7,000 words. It included in its preamble the entire text of the Declaration of Independence. It did not have a formal bill of rights, but did include a right to trial by jury, a right to counsel in felony cases, and a right of due process, as well as prohibitions against bills of attainder, and protections of religious freedom and liberty of conscience.
The constitution made no mention of slavery nor did it even include a process for future amendments but it was the first state constitution — and therefore the first in the nation’s history — to require that legislative representation be based on equal population and that every seven years the apportionment of legislative seats be reallocated based on changes in the population.
This constitution was in many ways a precursor to the U.S. Constitution that would be adopted a decade later — for example, looking at the records we have of the deliberations, the state senate was designed to be a filter for public opinion much like the U.S. Senate was designed to be the saucer that cools the tea that we learn so much about in our social studies classes.
Over the years, our state — the structures of our government, the rights bestowed to our people, and the obligations of our people vis-a-vis our government, has changed greatly. In fact, the State of New York has ratified 4 different constitutions — in 1777, 1821, 1846, and 1894. And in between all those years, the Constitution has been amended hundreds and hundreds of times.
The history of our state’s constitutional evolution is rich and fascinating — I could very easily stand here for days talking about it, but I won’t!
But if my colleagues will indulge me for just a few minutes, I want to share some highlights and interesting points of information about our state constitution and how it’s evolved over time.
In 1821 the Constitution adopted a formal Bill of Rights, largely modeled on the federal Bill of Rights. It included provisions concerning habeas corpus, double jeopardy, self-incrimination, eminent domain, and free speech.
The 1821 Constitution authorized the legislature to deny suffrage to anyone convicted of a felony and also required that the sale of any state lands be used exclusively for the benefit of the state’s common schools. This was the first time that public schools were mentioned in the constitution.
In 1846, a convention was held to make additional changes to the constitution. That convention proposed an amendment guaranteeing equal suffrage for African-Americans, but with the caveat that the amendment would only take effect after a public referendum. The public vote failed 223,000–85,000.
Delegates to the Constitutional Convention proposed an amendment guaranteeing free public schooling, but that proposal failed to win a majority of support from the convention’s delegates.
The 1846 Constitution prohibited excessive bail, cruel and unusual punishment, and the unreasonable detention of witnesses. It also included a provision requiring a public referendum every 20 years on whether a new constitutional convention should be convened — a provision that still exists in our constitution today.
The 1846 Constitution also reduced the length of state senate terms from 3 years to 2, which has remained the same ever since. This same constitution also laid the foundation of our judiciary, creating the trial-level Supreme Court and the Court of Appeals.
The next constitutional convention was convened in 1867. But in 1858, the legislature approved a resolution calling for an immediate convention for the express purpose of disbanding the state government and transferring all governing authority to the New York Central Railroad! The public narrowly voted down that idea by a margin of ~ 6,000 votes.
The convention in 1867 rejected a call for a women’s suffrage amendment, on the grounds that “public sentiment does not demand, and would not sustain, an innovation so revolutionary and sweeping.”
The convention also rejected a literary requirement for voting, on the grounds that “men’s relative capacity is not absolutely measured by their literary acquirements.”
A major theme of the 1867 convention was dealing with the balance between state and local government. After several decades of state domination over local affairs, including the legislative disbandment of the police department in New York City and the creation of a new metropolitan police department with the commissioner appointed by the governor, the 1867 convention proposed a series of structural changes designed to allow local governments to exercise various levels of “home rule.”
The 1867 convention proposed additions to the state Bill of Rights, including a right against unreasonable search and seizure, right to confront witnesses in criminal cases, the right to peaceful assembly, and the right to petition the government for redress of grievances.
The public overwhelmingly voted against all of the proposals of the 1867 Convention, though over time, many of these amendments were ultimately adopted.
In 1894, a constitutional convention considered 400 different amendment proposals, and ultimately adopted 33 of them.
Proposals to grant women’s suffrage, regulate anti-trust, guarantee pensions for the elderly, guarantee a right to join a union, and a ban on child labor all failed to even advance out of committee for the convention’s full consideration.
Of particular interest to me as the former chair of the Civil Service and Pensions Committee, the convention DID adopt a proposal to require a standard of “merit and fitness” to determine appointments to civil service positions, as well as the use of competitive examinations in filing government jobs.
The convention proposed requiring that all bills introduced in the legislative be made public for three days before they are voted on, a requirement that we still have in effect today.
Additionally, the 1894 convention added an entire article on public education, constitutionally committing the state to fund public schools, elevating education to the status of a core constitutional value though the amendment does not guarantee that everyone receives a constitutionally minimum level of education. (Something I’m proposing we change!)
The 1894 convention also saw the creation of the landmark “forever wild” provisions which obligated the state to keep the Adirondack and Catskill Forest Preserves free from development.
Additionally, the convention proposed rescheduling municipal elections on off-years from state elections, so as to diminish the partisan nature of local elections.
This may be of interest to our Majority Leader, the convention also proposed allowing the senate to elect a Temporary President to preside over the chamber in the absence of the Lt. Governor.
The next attempt at constitutional reform came again at the convention in 1915, where the major theme was reorganizing and reforming the growing executive branch and administrative state. There were 169 different state departments, bureaus, commissions, and agencies, many with overlapping jurisdiction with each other!
These proposals were largely shaped by a young reformer named Robert Moses. Yes, that Robert Moses.
The 1915 convention also set out to reform the state’s budget process. Up until that time, the legislature controlled the state budget, with very little care or focus given to a comprehensive or consistent financial plan for the state. Constitutional reformers wanted the state to centralize the budget authority in the executive branch, who would then submit the budget to the legislature for approval.
The 1915 convention overwhelmingly approved its proposed amendments, including amendments guaranteeing women’s suffrage, a ban on sweatshop labor, and an equal protection amendment, only to see all its work rejected overwhelmingly by the public. The vote of the public referendum was 400,423 in favor to 910,462 against.
However, by 1935, a majority of the convention’s 33 amendments would be adopted into the constitution.
Despite failing in 1915, an amendment granting women suffrage was approved by voters in 1917.
In 1919, voters approved an amendment allowing for absentee voting for the first time, spurred to act in part by the large number of soldiers who could not vote while overseas fighting in Europe.
In 1920, the constitution was amended to require the legislature to pass an annual debt service appropriations bill to ensure that future legislatures would not avoid paying back previously incurred state debt.
In 1921, an amendment was added which imposed a literacy requirement to vote. Similar proposals were rejected in 1867 and 1915, but anti-immigration sentiment post-WW1 led to the amendment’s passage.
In 1925, the constitution was amended to consolidate the executive branch into twenty distinct departments, with a prohibition on creating new departments by the legislature.
In 1927, the constitution was amended to give the governor sole control of the budget process. Some scholars point to this as the most significant constitutional development in New York in the 20th century.
The 1938 convention proposed adding a “labor bill of rights” to the constitution’s Bill of Rights, including provisions protecting collective bargaining rights, requiring the payment of prevailing wage for publicly funded projects, and limiting how many hours workers could work.
Additionally, the convention proposed a section prohibiting discrimination on the basis of race, color, or creed, marking this the first time a constitutional protection against discrimination would exist in the state constitution.
The convention also proposed a right against unreasonable search and seizures, a right which although existed in the federal 4th Amendment, was not directly applicable to state police actions until 1949. For most of NY’s history, there was no constitutional bar against unreasonable search and seizures!
The 1938 convention also proposed a new article concerning social welfare. Section 1 of the article was intentionally vague, but laid out a vision for a much more expansive social safety net with its promise that “the aid, care and support of the needy are public concerns and shall be provided by the state and by such of its subdivisions.”
In the years between 1938 and 1967, the constitution was amended 93 times!
The last time a constitutional convention was held in New York was in 1967. All of the recommendations proposed by the convention were overwhelmingly rejected by the public, but just as in years past, many recommendations were ultimately adopted piecemeal.
The 1967 convention proposed an innovative consumer’s bill of rights to protect residents from unfair and deceptive business practices, as well as expanding the equal protection clause to include sex, age, and physical disability discrimination.
Of special interest to me, the convention also proposed a new education amendment which would have provided for FREE public higher education! The rationale was that college was so fundamentally important to one’s future well being and success, that it should be a public good available to all without consideration of economic status.
Since the failure of the 1967 convention, more than 6,000 amendments have been proposed to the constitution. Up through 2017, only about 60 have been approved by the legislature and public.
I could spend hours and hours going through this history in even greater detail. But I’m sure you’re wondering — what’s the big deal? Why is this so important? Why should we care?
And the answer is really simple. Our civic culture places such a premium on our federal constitution. We learn about it all throughout our school years beginning in elementary school. We talk about the US Constitution as if it were some sort of religious document that holds the eternal truths that support our personal political views while simultaneously disproving the views of those we disagree with. We spend so much time and energy debating the constitutional powers of the federal government.
And yet, for all its sacred importance, and preeminence in our understanding of our civic identity, we tend to overlook just how important state governments really are. States — the laboratories of democracy as Justice Brandeis reminded us — have a more fundamental impact on our day-to-day lives as citizens than the federal government ever has and perhaps ever will.
And in a world that depends on an engaged and educated citizenry to fulfill the promise of self-government, what could be more important than starting with the very foundational charter that outlines the rights, privileges, powers, and responsibilities of a government that directly affects our lives each and every day?
We should care about our state constitution, because it is the blueprint for a state government that is meant to serve us.
So to everyone who calls New York home, I wish you a happy New York Constitution Day!