Editor’s Note: Whether or not New York State should have a new constitutional convention is on the voting ballot this November. As such, the Historical Society took a look back on the history of the State’s Constitution with the April 18, 2017 program Constitutional Conventions in New York: Past, Present, and Future. To start this series of posts about the history of New York’s Constitutional Conventions, Professor Peter J. Galie, who opened the program with his lecture New York State Constitutional Conventions: Back to the Future, compares and contrasts the successes and failures of two foundings.
Peter J. Galie, author of this article, is Professor Emeritus at Canisius College in Buffalo, NY, and earned his Ph.D. from the University of Pittsburgh. He is the author of numerous articles in the area of state constitutional law and three books: Ordered Liberty: A Constitutional History of New York (Fordham University Press, 1996); The New York Constitution: A Commentary, with Christopher Bopst, 2nd ed. (Oxford University Press, 2012); and co-editor with Christopher Bopst and Gerald Benjamin, New York’s Broken Constitution: The Crisis in State Government and the Path to Renewed Greatness (SUNY Press, 2016). He is currently serving on a Task Force on the Judiciary Article of the State Constitution formed by Chief Judge of the Court of Appeals, Janet DiFiore.
Photo: “Announcing the Founding,” Secretary of the 1777 Convention, Robert Benson, mounted a barrel in front of the courthouse and read the document to assembled citizens.
When establishing and gaining consent for a new regime, “a new order of the ages,” you need to have a people who are already committed to the principles the regime espouses or are amenable to persuasion and commitment. This is the paradox of founding. Plato, Rousseau, Machiavelli, and the authors of Federalist grappled with this conundrum. Is it possible to begin democratically when there is no tradition of democracy? Is it possible to found a regime on principles the regime wishes to establish?
We think of the national Constitution as the first constitutional republic founded on the consent of the people and embodying principles and values that trace their origins to the Magna Carta in 1215.
But it was not the first. The first fruits of the American Revolution were the state constitutions adopted between 1776 and 1780. The founding of independent constitutional republics began in 1776, not in 1787. New York adopted its first constitution on April 20, 1777. The Provincial Congress that brought forth this founding renamed itself “The Convention of the Representatives of the State of New York.”
The conditions were not propitious. It was a constitution created by a convention on the run — literally. The convention was deliberating on a constitution in the middle of a war while simultaneously trying to govern the newly independent state. Remarkably, by all accounts, it was well received. In a letter to Leonard Gansevoort, John Jay wrote: “Our Constitution is universally approved even in New England where few New York productions have credit.” The success in founding constitutional republics has significance beyond the borders of New York and the United States.
John Jay wrote the following shortly after the adoption of the 1777 Constitution in which he played a major role:
The Americans are the first people whom Heaven has favoured with an opportunity of deliberating upon, and choosing the forms of government under which they should live. All other constitutions have derived their existence from violence or accidental circumstances, and are therefore probably more distant from their perfection, which, though beyond our reach, may nevertheless be approached under the guidance of reason and experience.
Alexander Hamilton in the Federalist echoed and amplified this sentiment when he pondered the question,
whether societies of men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force.
Founding Regimes: Egypt and the Arab Spring 2011
The world historical significance of these successful beginnings had a direct bearing on events we collectively labeled the Arab Spring.
On February 11, 2011, more than a million demonstrators had been occupying Tahrir Square in Downtown Cairo for 18 days when the long-standing dictator Hosni Mubarak gave in and stepped down. With the whole world watching, the Egyptian people enacted a revolution at a time and in a place that was least expected. Ordinary people — nonviolent demonstrators fed up with decades of dictatorship, police brutality, and political corruption — made two demands: that Mubarak step down and that a democratic regime be established.
In less than three weeks, Mubarak’s regime ended; but the transition to democracy would prove to be much harder and things went especially wrong in the process of constitution making.
All modern revolutions have been made in the name of the people under the mantra of popular sovereignty. However, relying on popular sovereignty as a source of legitimacy creates more problems than it solves. We live in a world characterized by an ever-growing awareness of difference. The Egyptian process of constitution making took the majority as an authoritative voice of the people, in effect adopting a winner take all approach. The approach failed and the initial euphoria degenerated into civil war and failed states. The litany of similar failures around the world is long and depressing.
If we adopt the idea that the will of the people is the deep source of democratic legitimacy, but the people speak only in a plurality of voices, what are we to make of the demand for popular sovereignty? Founding moments reveal this paradox most vividly. How does democracy — a government derived and gaining its legitimacy from the people — get off the ground? How can revolutionary events transform themselves into a constitutional regime without degenerating into dictatorship and or permanent revolution? Why have so few beginnings succeeded?
Alexander Hamilton in the Federalist suggests that the answer lies in the assumptions founders bring to the undertaking.
So numerous indeed and so powerful are the causes which serve to give a false bias to the judgement, that we, upon many occasions, see wise and good men on the wrong as well as on the right side of questions, of the first magnitude to society. This circumstance, if duly attended to, would always furnish a lesson of moderation to those, who are engaged in any controversy, however well persuaded of being in the right. And a further reason for caution, in this respect, might be drawn from the reflection, that we are not always sure, that those who advocate the truth are actuated by purer principles than their antagonists. Ambition, avarice, personal animosity, party opposition, and many other motives, not more laudable than these, are apt to operate as well upon those who support, as upon those who oppose, the right side of a question. Were there not even these inducements to moderation, nothing could be more ill-judged than that intolerant spirit, which has, at all times, characterized political parties. For, in politics as in religion, it is equally absurd to aim at making proselytes by fire and sword. Heresies in either can rarely be cured by persecution.
The delegates to New York’s founding convention were not proceeding in a vacuum. They were blessed with an informed populace, one that had grown up in a tradition of mixed regime republicanism and nurtured on active citizenship. It was a people committed to an independent judiciary and the rule of law — the latter notion stretching back to Article 39 of the Magna Carta of 1215.
New York was twice blessed in this regard. Before its rebirth as New York, the Dutch founded its predecessor New Netherland. As recent research by Charles Gehring and others have shown, this Dutch legacy, with its strong legal tradition, right to petition, tradition of local self-government, tolerance, and religious liberty, provided a solid foundation for a successful constitutional republic in New York.
This tradition, along with compromises that balanced and protected the pluralism and key interests in the community, was key to New York’s successful founding. Additionally, opening the door to middle class farmers who were learning political self-reliance and independence furthered this success.
It is a lesson 21st century founders would be well advised to learn.
 The Correspondence and Public Papers of John Jay, vol. 1 (1763-1781) (Indianapolis: Liberty Fund, 2003) p. 141.
 Ibid, p. 161.
 Alexander Hamilton, John Jay, and James Madison, The Federalist (The Gideon Edition 1818) edited with an Introduction, Reader’s Guide, Constitutional Cross-reference, Index, and Glossary by George W. Carey and James McClellan (Indianapolis: Liberty Fund 2001), p 1.
 For exploration of this connection and more generally the founding of democratic regimes in a theoretical and global context, See Sedar Tekin, Founding Acts: Constitutional Origins in a Democratic Age (Phila: University of Pennsylvania Press, 2016).
 Ibid., p. 2.
 Albert M. Rosenblatt & Julia C. Rosenblatt, eds. Opening Statements: Law Jurisprudence and the Legacy of Dutch New York (Albany: SUNY Press, 2013); Russell Shorto, The Island at the Center of the World (NY: Doubleday, 2004).