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

• Author: Galie, Peter J.
• Position: Part 2

[T]he Committee finds itself literally amazed by the extent to which the Constitution of New York contains hollow phrases, defective provisions, and creakingly antiquated policies. Moreover, the research that underlies our conclusions has in the main not exposed any true clash of principles. To a surprising degree the Constitution embodies sections that have been preserved not because they reflect the current convictions of some determined element of the public, but for no better reason than that nobody has bothered to remove them after they had served whatever purpose they originally had. (1)

--Inter-Law School Committee

1. INTRODUCTION

   The quotation above is particularly apt for the second portion of this two-part article about the unnecessary and outdated material that has been allowed to accumulate throughout the New York State Constitution. (2) Whereas the first part of the article addressed oddities, anachronisms, redundancies, archaic language, and incoherencies found in the bill of rights and in the sections of the constitution concerning the institutions of government, this part will deal with the public policy sections of the document, which are located in articles VII through XVIII. (3)

   Criticisms leveled against the state constitution, that it has not aged well (and was never designed to do so) and that it is a huge statute in constant need of reexamination, could never be said about the U.S. Constitution. (4) The New York Constitution differs significantly from its federal counterpart in its inclusion of heavily-laden policy matters. (5) Some of the document's size derives from its status as the governing charter of a state possessing plenary power. (6) This is not the only reason, however. The U.S. Constitution generally does not direct the Congress or President to take specific actions concerning policies; rather, it provides a list of enumerated powers, which cannot be exceeded, (7) and a list of prohibitions on the power of Congress. (8) The New York Constitution, by way of contrast, often commands the legislature or governor to take certain actions. (9) These detailed policy provisions engender further amendments necessary to respond to changing conditions. As often as not, the amendments that have been adopted have been work-arounds or poorly crafted attempts to circumvent or exempt previous provisions and restrictions, while retaining the original language.

   Given the role and function of a state constitution, a certain amount of policy material may be desirable. However, as the analysis below will show, detailed and specific material quickly becomes insufficient, obsolete, or ineffective. Our analysis reveals a studied unwillingness on the part of the State to undertake necessary revision and updating, leaving us with a document less able to respond to the diverse and dynamic needs of the state.

   The most recent illustration of this penchant for layering additional material onto existing language occurred shortly after the first part of this article was published. In November 2014, New Yorkers adopted an amendment to the state's reapportionment provisions. (10) This amendment established a redistricting commission to draw the state legislative and congressional district lines every ten years beginning in 2021. (11) The commission consists of ten members: two appointed by the temporary president of the Senate, two appointed by the speaker of the Assembly, two appointed by the minority leader of the Senate, two appointed by the minority leader of the Assembly, and two appointed by the other eight members. (12) The commission is to submit a redistricting plan to the legislature, which the legislature must vote on without amendments. (13) If the legislature does not adopt the first plan (by a majority determined by the commonality of the political affiliation of the legislative leadership in the two houses and the margin by which the plan received approval by the commission, (14) the commission must submit a second plan, which the legislature must vote on without amendments. (15) If the legislature does not adopt the second plan (by the applicable majority), the legislature may make whatever amendments to the plan it wishes. (16) The amendment also provides that "[districts shall not be drawn to discourage competition or for the purpose of favoring ... incumbents or other [political candidates]." (17)

   While reasonable minds may differ over the merits of the reapportionment amendment, (18) one of its major shortcomings is that it was added to already contradictory and confusing sections. The amendment was not designed to nor does it make sense of the existing language. It does not remove any of the sections found unconstitutional half a century ago. (19) Instead, it adds additional requirements to a landscape already studded with provisions that have been superseded by federal constitutional and statutory mandates.

   With those thoughts in mind, we now examine specific parts of the public policy sections of the New York Constitution that we believe are appropriate candidates for removal, modification, or rearrangement.

2. CLEANING HOUSE ROOM BY ROOM

   1. Article VII--State Finances

      It is no surprise that a state the size and complexity of New York has a fairly intricate financial structure and that the state constitution lays out provisions governing its operation. The first part of the state finances article details the state budget process, (20) provides conditions for the state to borrow money, (21) and prohibits certain gifts and loans of state money and credit. (22) In contrast to the necessary and substantive nature of these sections, however, are three sections totaling approximately 1200 words that concern authorizations for bonds that have long since been retired. (23) Not only could these sections be excised from the document without any impact on the state, future authorizations could include language allowing them either to be removed from the constitution by vote of the legislature or to be deleted automatically upon retirement of any bonds issued pursuant to the authorization. (24) These "hangers-on" are described in more detail below.

      1. Article VII, Section 14

         Section 14 of article VII, originally adopted in 1925, 25 had the laudable purpose of eliminating railroad crossings at grade. The provision as it currently exists reads:

         The legislature may authorize by law the creation of a debt or debts of the state, not exceeding in the aggregate three hundred million dollars, to provide moneys for the elimination, under state supervision, of railroad crossings at grade within the state, and for incidental improvements connected therewith as authorized by this section. The provisions of this article, not inconsistent with this section, relating to the issuance of bonds for a debt or debts of the state and the maturity and payment thereof, shall apply to a state debt or debts created pursuant to this section; except that the law authorizing the contracting of such debt or debts shall take effect without submission to the people pursuant to section eleven of this article. The aggregate amount of a state debt or debts which may be created pursuant to this section shall not exceed the difference between the amount of the debt or debts heretofore created or authorized by law, under the provisions of section 14 of article VII of the constitution in force on July first, nineteen hundred thirty-eight, and the sum of three hundred million dollars. The expense of any grade crossing elimination the construction work for which was not commenced before January first, nineteen hundred thirty-nine, including incidental improvements connected therewith as authorized by this section, whether or not an order for such elimination shall theretofore have been made, shall be paid by the state in the first instance, but the state shall be entitled to recover from the railroad company or companies, by way of reimbursement (1) the entire amount of the railroad improvements not an essential part of elimination, and (2) the amount of the net benefit to the company or companies from the elimination exclusive of such railroad improvements, the amount of such net benefit to be adjudicated after the completion of the work in the manner to be prescribed by law, and in no event to exceed fifteen per centum of the expense of the elimination, exclusive of all incidental improvements. The reimbursement by the railroad companies shall be payable at such times in such manner and with interest at such rate as the legislature may prescribe. The expense of any grade crossing elimination the construction work for which was commenced before January first, nineteen hundred thirty-nine, shall be borne by the state, railroad companies, and the municipality or municipalities in the proportions formerly prescribed by section 14 of article VII of the constitution in force on July first, nineteen hundred thirty-eight, and the law or laws enacted pursuant to its provisions, applicable to such elimination, and subject to the provisions of such former section and law or laws, including advances in aid of any railroad company or municipality, although such elimination shall not be completed until after January first, nineteen hundred thirty-nine. A grade crossing elimination the construction work for which shall be commenced after January first, nineteen hundred thirty-nine, shall include incidental improvements rendered necessary or desirable because of such elimination, and reasonably included in the engineering plans therefor. Out of the balance of all moneys authorized to be expended under section 14 of article VII of the constitution in force on July first, nineteen hundred thirty-eight, and remaining unexpended and unobligated on such date, fifty million dollars shall be deemed segregated for grade crossing eliminations and incidental improvements in the city of New York and shall be available only for such purposes until...