Constitutional "stuff": house cleaning the New York Constitution.

Author:Galie, Peter J.
Position:Introduction through II. Cleaning House Room by Room C. Article III - Legislature 1. Article III, sections 3, 4, and 5, p. 1385-1414 - Chief judge Lawrence H. Cooke Eighth Annual State Constitutional Commentary Symposium
 
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In the fall of 2012, an intensive effort was launched to examine every surface of the New York State Capitol and identify and implement a series of cleaning projects. Work crews labored to remove multiple layers of wax that had built up on the marble and granite floors and baseboards over the last forty years. They cleaned masonry and intricate stone carvings that were stained with decades-worth of emissions from coal furnaces once used to heat the Capitol, and cigarette and cigar smoke. Even brass railings and kick plates sparkle after a half-century of neglect. No detail too small, evidence of the Capitol's renaissance can be seen throughout the building.

The cleaning of the elaborately carved granite and sandstone arches and columns, and other decorative stonework was a significant undertaking. A specially trained team of employees from the Office of General Services used a latex cleaning product that was applied to the stone. As the latex dried, it captured dirt from crevices in the stone and was then peeled off as an elastic film, removing the dirt with it. (1)

--Restoring a Landmark: The New York State Capitol

The Capitol was in many ways for me a metaphor of turning government around, of cleaning government up, of making it work.... In management they say, "Come up with a series of short-term goals that you can focus on and achieve" .... So we had a short-term goal: we're going to get the building done. (2)

--Governor Andrew Cuomo

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The quotations above describe the meticulous cleaning the 115-year old New York State Capitol received as part of a decade-long restoration project. While the Capitol building has been restored to its architectural grandeur, the New York State Constitution, which predates the building by five years, remains in need of a meticulous cleaning. 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. A half-century ago, the Temporary Commission on the Revision and Simplification of the Constitution wrote that the New York State Constitution was "not a constitution in a proper constitutional sense. 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." (3) The current document is a bloated, disorganized, fifty thousand-word behemoth. (4) Although occasionally the cause of embarrassment and target of cartoon ridicule and scholarly sarcasm, the detritus and disorder that characterize the document--products of the past century--do not usually affect the structure and operation of state government, and thus rarely receive systematic attention. The authors believe, however, that New York's Constitution, like the building in which it is debated and amended, is in need of some good housekeeping.

New York has a proud constitutional tradition. Its first constitution, adopted in 1777, predated the approval of the Articles of Confederation by the Second Continental Congress. (5) Indeed, the first fruits of the American Revolution were the state constitutions adopted between 1776 and 1786. (6) The country cultivated a tradition of written charters that were the end product of the shared understanding of the states as engaged in a common enterprise, bound together by the values, interests, and aspirations contained in those founding documents. (7) Notwithstanding the intertwined history and common goals of the federal and state constitutional traditions, the treatment given to the United States Constitution and the New York State Constitution has differed in important respects.

We point to the national Constitution with pride and admiration. Read, studied, and celebrated, it has inspired generations, becoming in the process something of a sacred text. The Rotunda of the National Archives Building in Washington, D.C. that houses the document is its shrine. (8) The case preserving the document is a massive, bronze-framed, bulletproof, moisture-controlled, vacuum-sealed glass container. (9) Seated in the Rotunda by day, it is lowered into a multi-ton, bomb-proof vault by night. (10)

Do we point to the current New York Constitution with similar pride and affection? Is it read, studied, and celebrated? Has it inspired generations of New Yorkers? Where is its shrine? Those questions about the state constitution seem awkward, even out of place. Why? For one, we are not in the habit of asking such questions about our state constitution. But the short answer to the four questions posed is that we have not treated our state constitution very well. We have not given it the care that founding documents deserve. One manifestation of that lack of care is what we have placed in the document and, more to the point, what we have allowed to remain in the document. By these measures, the current New York Constitution, adopted in 1894 and extensively revised in 1938, (11) falls far short. It is a document neither known nor read by the general public, or most public servants for that matter; a document subject to neglect and ridicule; a document filled with impenetrable prose, anachronisms, oddities, and redundancies; a document encrusted with amendments that have undermined the initial coherence of the constitution. By trivializing its content, these provisions have done more than discourage reading: they have derogated from the constitution's character as a fundamental document, engendering disrespect if not ridicule.

The burden of this two-part article will be to describe and analyze this condition, and suggest that a first-order task of New York State should be to rescue its constitution from the neglect and embarrassment occasioned by these features. This article will not address the larger issue of systematic and substantive reform of the state constitution. The need for such reform has been obvious to nearly all those who have addressed the question over the last two generations, including civic reformers, scholars, the media, and politicians. (12) We have not attempted to provide a revised constitution that incorporates our recommendations; nor have we catalogued all possible candidates for re-arranging, though we have made some suggestions and have provided examples of proposals to reduce and simplify the document. The article focuses upon the provisions of each section of the constitution that can be removed, modified or relocated within the document without addressing the larger issue of the substantive changes the constitution might require. In Part I we address the first six articles of the constitution, which include the bill of rights, suffrage and the branches of state government; the second part will address the remaining articles.

  1. MANAGEMENT OF THE CONSTITUTION

    The ancient Greek word oikos, from which we derive our word for economy, (13) was the management of the household, (14) the cornerstone of ancient Greek society. New York seems to have lost sight of that connection, at least insofar as its state constitution is concerned. Like a house filled with "stuff," the document has expanded in size to nearly fifty thousand words. But the length of the state constitution itself is not the only problem with the document; it is the fact that the document is engorged with oddities, obsolete material, and redundancies, all displaying a half century of neglect. One does not have to read very far into the document before being confronted with deadwood, poor organization, and arcane or inscrutable language. Specific sections are no longer operative by virtue of clauses elsewhere in the document or by intervening court decisions and the meanings of certain provisions are not transparent without reference to provisions in other sections. This unkempt constitution did not just happen, nor has it gone entirely unnoticed.

    The 1958 Inter-Law School Report on the New York State Constitution stated that it was "literally amazed by the extent to which the Constitution of New York contains hollow phrases, defective provisions, and creakingly antiquated policies." (15) The Temporary Commission on the Revision and Simplification of the Constitution echoed these sentiments, calling the New York Constitution "almost unreadable and [one that] can be understood only after tedious study." (16) It continued:

    The Constitution of the State of New York is not a constitution in a proper constitutional sense. 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. (17) These reports, written more than fifty years ago, are as timely today as when they were first scripted. (18)

    1. Length: Should It Stay or Should It Go?

      The decision to "clean house" requires some attention to a prior question: how do we decide what goes and what stays? Moreover, that question forces us to address, at least in a preliminary fashion, the question of what a constitution should contain. (19)

      The answer from most scholars and constitutional reformers has been that a constitution should contain only the fundamentals. William Bennett Munro epitomized this philosophy when he wrote:

      A state constitution should confine itself to fundamentals.... The bill of rights should be reduced to a minimum.... The framework of state government should be simplified.... A large number of matters now incorporated in the state constitution should be transferred to an administrative code. (20) Among the reform groups who subscribed to this approach, the National Municipal League (now the National Civic League) stands out. Throughout the twentieth century, it published a series of pamphlets, monographs, and specialized studies on state constitutions. (21) Included in the organization's contributions to the study and reform of state...

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