New York’s Broken Constitution

The New York State Constitution is a mess. So it’s no surprise that New York’s machinery of governance—legislation, the judiciary, the formulation and enforcement of policy, state finances, the separation of powers, and so much more—is also a mess. In New York’s Broken Constitution, a (mostly) well-researched and well-written book, ten experts (a good mix of lawyers and political scientists) lay out the almost countless ways in which the New York Constitution is anachronistic and incoherent—and thus almost hopelessly divorced from the day-to-day realities of governing in a complex, twenty-first-century state.

On the flaws of our constitution and on how they enable the dysfunctions we know so well the authors make a compelling case. But on the crucial subject of whether or not a constitutional convention would actually solve this myriad of problems they are less convincing. Since we will be voting in a few months (on November 7, 2017) on whether to call a convention to rewrite our basic legal document, both the merits and the lacunae of this important book are worth a careful examination. Even though I remain skeptical with respect to its goal I enthusiastically recommend New York’s Broken Constitution to voters as they contemplate their decision on calling a constitutional convention.

One of my fears is that a convention would jeopardize the constitutional protection now afforded the Forest Preserve. More on this later.

The constitution we have today is a hybrid document, with provisions written at conventions held in 1894 and 1938, along with many amendments. New constitutions offered by conventions in 1915 and 1967 were rejected by the voters. Because it has been so long since our constitution was revised, many of its articles are “treated in the political branches and the courts as inconvenient obstacles to be overcome or bypassed.”

“The current constitution is a bloated, disorganized, 52,500-word behemoth characterized by detritus and disorder,” write Peter Galie and Christopher Bopst. The solution: get rid of useless, irrelevant verbiage from earlier days and items superseded by federal law and court decisions. The number of provisions that are “obsolete, incoherent, redundant, or misplaced is startling, not to say embarrassing.” Eliminating the irrelevant and clarifying the incoherent would help New York citizens to take the document seriously.

Because our constitution is so old and because it is so out of step with contemporary problems, the New York Court of Appeals has issued a series of opinions that have more or less rewritten key provisions. These cover such important issues as state-approved gambling, numerous aspects of the budgeting process, apportionment of Senate seats, and New York’s tradition of home rule. In other words, these opinions and not the constitution itself have come to be the basis of New York policies and laws.

And then there is the matter of corruption. A statewide poll in 2014 showed that 92 percent of New Yorkers believed corruption in state government to be “the single most important issue among voters.” More than once, the authors allude to what they call “the cynicism and disgust” that New York citizens evince when it comes to their state government. “The low esteem and distrust that characterize the public’s view of the New York State Legislature are well documented: it’s corrupt, ineffective, and incapable of reforming itself.” And, the authors further insist, the best, perhaps the only, way to address this culture of corruption is via a new, forceful constitution.

Here are some (but not all) of the specific issues addressed here that our current constitution fails to deal with adequately:

The judiciary: at too many levels, judges are elected, which means we have judges with skill at campaigning and raising money but not necessarily skill at judging. New York courts are a byzantine jumble of inexplicable domains, conflicting terms of office, and indecipherable rules. In their chapter on New York courts, Daniel Feldman and Marc Bloustein note that Article 6, on the judiciary, contains sixteen thousand words, almost a third of the constitution. The result is a truly incoherent system.

Peter Galie provides a thorough account of what is wrong with the “message of necessity” provision. The current constitution requires that the legislature must delay the final vote on any piece of legislation until three days after the final language is approved. It also allows the governor to issue a “message of necessity” to circumvent this provision. Manipulation of this requirement and the provision for dodging it leads to laughable procedural gymnastics and delivers undue authority to the governor.

The critical subject of reapportionment (Article 3) is ably handled by Jeffrey Wice and Todd Breitbart. Our constitution has never been updated to bring it into accord with U.S. Supreme Court decisions issued in the 1960s regarding equal representation. Although the actual Senate district lines have been improved, they remain undemocratic: upstate districts are underpopulated, while New York City districts are overpopulated. Advantage: upstate.

In their discussion of this significant inequity, Wice and Breitbart introduce a caveat that seriously undercuts the thrust of this book and confirms my reservations about calling a constitutional convention. The formula for selection of delegates, which cannot be changed, calls for three from each Senate district and fifteen elected statewide; there would be 204 delegates, with 189 elected by Senate district. Because of this, Wice and Breitbart express grave doubts about the inevitably partisan nature of a convention and the fairness of any new constitution written there, especially with regard to how it will establish procedures for drawing new legislative districts. They “view with alarm the prospect of a convention in which such a large majority of the delegates would be elected on the basis of these districts. … [A] reconsideration of the entire constitution is to be regarded more with fear of the mischief that might be done than with hope for what might be achieved.” And they don’t even mention all the money that will inevitably be poured into the election process—an unavoidable political reality that would completely erase the dream of a “People’s Convention.” Do we want a convention with delegates brokered by the Koch brothers?

The constitutional provision that might be of greatest interest to Explorer readers, Article 14, which, among other things, protects the Forest Preserve, is discussed by Paul Bray, an attorney and journalist who has been writing about state environmental matters for decades. Like many commentators, Bray expects that the forever-wild provision would be repeated, unchanged, in any new constitution.

But Bray considers the many amendments to forever-wild, approved over the twelve decades since 1894, and the awkward way they string along after the original (and still stirring) sentences, “cumbersome.” Elsewhere in this volume, Galie and Bopst advocate retaining the original language and eliminating all the amendments; they have done their work and could safely be dropped from a new constitution. Bray focuses much of his essay on what follows the forever-wild provision and argues for strengthening and clarifying language addressing state-wide environmental policy. The current Section 4 of Article 14, which established that state policy on any matter must always be environmentally sensitive, “has had little if any effect.” Bray advocates constitutional provisions to mandate state attention to greenhouse gases and other issues of global significance.

The chapter containing the most alarming mention of forever-wild concerns how New York handles debt and finance. When it comes to instruments of debt, Kenneth Bond sensibly points out that New York is hamstrung by (or simply must ignore) constitutional language, almost a century old, that does not reflect the realities of modern finance. But, bizarrely, Bond also mistakenly claims that Article 14 keeps “the Adirondack Park ‘forever wild’”—conflating the Park and the Forest Preserve—and insists that Article 14 “takes 30% of the state’s land area and renders it practically useless for economic growth and generation of state and local government revenues.”

If a constitutional expert, with forty years of experience in the labyrinthine passages of New York law, can get something this important so wrong, how can we not fear lest a constitutional convention be a disaster for the Forest Preserve—and who knows what else? Article 14 says nothing about the Adirondack Park. The Forest Preserve, which it does govern and which is roughly three million acres, in both the Adirondacks and Catskills, comprises less than 10 percent of the state. And it is absurd to say that the Forest Preserve is “useless for economic growth.” Tourist revenue is a huge part of the regional economy. We can argue about exactly how much cold cash Forest Preserve tourism contributes to Adirondack businesses, but to say it’s nothing is rank ignorance. Bond also ignores the substantial taxes paid by the state on the Forest Preserve to Adirondack and Catskill town and county governments and school districts.

There is plenty wrong with governance in New York. This reality the authors make abundantly, painfully clear. But that a constitutional convention, called in the intensely partisan climate of 2017, for a state where even an expert doesn’t know the difference between the Forest Preserve and the Adirondack Park, will find a reasonable antidote to our political woes remains discouragingly uncertain. As Wice and Breitbart remind us in their chapter on reapportionment, “New Yorkers who share our views confront a dilemma.” We desperately want change, but we doubt that a constitutional convention can produce it.