Next year, New York's voters will decide whether or not to hold a State Constitutional Convention, which means they will be deciding what to do about a document that is littered with anachronisms, oddities, and meaningless language.
For example: A section on the elimination of railroad grade crossings gives details about bonds that were retired three decades ago. Another section details how the State will go about funding bonuses for World War II veterans. And yet another section on Municipal debt contains language referring to bonds issued before 1910 by New York City for dock improvements.
These are just a few of the dozens of sections that are either no longer in effect or deal with topics that haven’t been a matter of public concern for decades. One of the purposes of a Constitution is to provide citizens with a coherent and understandable summary of their rights and a statement of Governing principles. By that measure, New York’s is a failure.
In a pair of articles published in the Albany Law Review in 2014 and 2015, Canisius College Professor Emeritus Peter Galie and Attorney Christopher Bopst examined parts of the Constitution that were superfluous, meaningless, or antiquated. They estimated that “over 14,600 words” in the nearly 58,000-word document “could be repositioned, modified, or removed without substantively changing the operation of the state.”
“The oddities, anachronisms, redundancies, archaic language and incoherencies found in the State’s fundamental charter constitute the stuff that clutters and expands the document, making it barely readable, let alone understandable,” they wrote. “It is a mass of legal texts, some truly fundamental and appropriate to a constitution, others a maze of statutory detail, and many obsolete or meaningless in present times. The current document is a bloated, disorganized fifty thousand-word behemoth.”
Several sections have been superseded by Federal law or Judicial decisions. The article on Suffrage, for example, severely limits the ability of students to vote in their college towns, and the section dealing with self-incrimination requires Elected officials to leave their posts if they decline to testify when they’re accused of misdeeds.
Other parts deal with topics that simply aren’t relevant in the modern world. A section dealing with corporations contains numerous provisions drafted in the 19th century, such as language prohibiting the Legislature from granting special Charters to banks, which are unlikely to have any practical effect given current corporate practices. And the article on Courts spends 1,500 words detailing the structure of Courts that were abolished in the same section.
Some parts of the Constitution are still in effect but are anachronistic. Consider the provision that empowers the Lieutenant Governor to act as Chief Executive when the Governor is outside of the State. The language was drafted in 1777, when it certainly was difficult for a Governor to stay in touch with events in New York while traveling elsewhere.
That’s obviously no longer the case, but the provision is still on the books and can have bizarre consequences. When the 2009 Senate coup was underway, there was a real concern that then-Governor David Paterson’s trip to the Statue of Liberty, which caused him to briefly enter New Jersey waters, would give acting Lieutenant Governor and future felon Pedro Espada the power to wreak havoc. Meanwhile, the Constitution is silent on whether the Governor has the power to fill a vacancy in the Lieutenant Governor’s office, a question which drew divided legal conclusions that same year.
Other sections are completely meaningless. The State is required to set the date of a General Election on the first Tuesday after the first Monday in November unless it chooses to hold it on another date. And language pushed by four-term Governor Al Smith limiting the Executive branch to 20 Departments has since been rendered entirely ineffective by the addition of numerous Agencies, Commissions, and Committees.
Galie and Bopst also argued that the current constitution is horribly organized.
Consider the ninth section of the State Bill of Rights. This details the freedom of residents to petition the Government and Assemble peacefully, neither of which seems out of place in a section detailing rights. But both of these guarantees are contained in a rambling 176-word sentence that also requires that divorces be granted judicially and that bans gambling unless it’s in the form of a lottery to fund education, at a horse race that provides funds to the State, or at one of seven casinos authorized by the Legislature.
Holding a Convention certainly would offer an opportunity to thoroughly revamp and modernize the Constitution. There are certainly drawbacks, however, and when voters last weighed in on the topic in 1997, they overwhelmingly felt these outweighed the positives.
Some opponents argued that any attempt to rethink Constitutional law would put provisions relating to education, public employees and the State’s “forever wild” forests at risk. Others felt that a Convention created the risk of new language enshrining abortion and gay rights. And a case could be made that a Convention would be a costly waste of time unlikely to produce any changes besides cushier pensions for the lawmakers who double-dip by serving as Delegates. When a Convention was last held in 1967, voters rejected the proposed Constitution in its entirety.
But the creation of a Constitution that’s comprehensible to a majority of the State’s residents could likely be achieved only by a redraft authored by Convention Delegates.
Some dated sections have been addressed through the typical amendment process, which requires passing a resolution in two consecutive Legislative sessions that’s later approved by the State’s voters.
Assemblyman Jim Tedisco was recently able to push through language that changed the requirement for bills to be physically printed. But there was a degree of taxpayer savings associated with Tedisco’s efforts, and there haven’t been many indications of late that there are any Lawmakers who think exerting years of effort into updating language dealing with World War II veterans is the best way to win another term.
And in some cases, Lawmakers have actually resisted the modernization of obsolete sections. A Constitutional Amendment drafted in 2012 to change the State’s Redistricting process primarily added language to the existing text, leaving intact most of what was already on the books. As a result, the recently revamped section still contains provisions for drawing Legislative lines that haven’t been in effect since a series of Court cases decided a half-century ago. In both Houses of the State Legislature, Districts need to be of roughly equal size, but somebody reading the State’s highest law wouldn’t realize this.
According to the Constitution, Assembly Districts are created on a County-by-County basis that would give Schuyler’s 18,343 residents the same voice in Albany as Ulster’s 182,493. The formula used to determine the number of Senators has been interpreted as dependent on the assumption that Nassau County is still a part of Queens. Its not.
The common understanding four years ago was that this language was left in place to placate Republicans. They were optimistic that future changes to Judicial interpretations of the Federal Voting Rights Act and the U.S. Constitution's Equal Protection Clause might force the State to revert to a system leading to a dramatic under-representation of New York City residents.
But regardless of why the State failed to address this antiquated language, its continued inclusion means the State’s most important Legal document doesn’t represent Legal reality.
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