The State Constitution Doesn’t Always Mean What It Says; Perhaps It Should

Professor's Piece: 

The State Constitution Doesn’t Always Mean What It Says; Perhaps It Should

Gerald Benjamin

The Court of Appeals, our highest court, is now considering a claim (Bordeleau v. State of New York) that most of New York’s economic development practices violate plain language in the state’s constitution. At issue is the constitutional prohibition against providing gifts or loans of state money or credit to benefit private parties. (Article VII. Section 8).

[See the oral arguments here:]

The state’s defense is that it is not really making gifts or loans within the meaning of the constitution; it is contracting for deliverables that benefit the New York economy.  The Attorney General’s office also distinguishes actions of the state public authorities’ actions from those of the state itself.  But it really boils down to this: New York came to believe that it could not accept 19th century constitutional limits and still compete economically in a 21st century world.  So paths around the constitutional restriction were found. And now – because of a straightforward “it means what it says” Appellate Division decision on a case brought by some pesky Tea Party activists – the resultant policies must be defended.   

There are many other examples of New York policy makers finding ways around inconvenient constitutional requirements. To cite just two:

-          The referendum requirement for borrowing (Article VII, section 11) has not kept us from finding ways around voter approval, and becoming one the most heavily indebted states in the nation.    

-          The requirement that a bill “ripen” on legislators’ desks for three days before any vote  except in emergencies has little force (Article III, section 14), as governors find “emergencies” whenever politically useful.

Not all the opacity of the state constitution can be traced to actions by state government to bypass it. Sometimes it is preemptive federal decisions that have emptied state constitutional provisions of meaning. So:

-          We have everything-goes Native American gaming in New York (Article I. section 9), notwithstanding our constitutional gambling prohibition.

-          We have a nightmarishly complex state legislature redistricting provision (Article III, section 4), with some parts rendered null and void on federal constitutional grounds, and some still in force.

Of course, though the causes are federal, the state legislature has done nothing to clean up the document in these two key areas.  (Neither has a series of governors, but they are less culpable. The executive has no formal role in amending the constitution.)

Amidst all the ingenuity that’s been harnessed to overcome some of the limits on the legislature the state constitution, the parts of the document that have remained unchallenged are instructive.  The two major political parties’ iron grip on election administration remains intact. Despite all the recent uproar about the richness of public employee pension benefits, there has been no serious effort to modify the state constitutional pension guarantee for state and local workers (Article V. Section 7).   Quite clearly, while bypassing constraints it does not like, the legislature has remained respectful of constitutional provisions that are protected by powerful political interests.  It accepts the limits it likes.

There is no question that our state constitutions will always need interpretation. Saying with finality what the document means is and should be the province of our high court.  But saying what the document means is different than allowing provisions to continue in it that have been stripped of all or most of their meaning.  This is especially true at the state level, where one of the most important functions of a constitution is to limit the legislature’s otherwise plenary power. The difference between what is the operating reality in New York governance and what appears to be the basic law from a straightforward reading of our constitution has sometimes become so great as to reinforce the pervasive cynicism about and distrust of politicians and government. This is a very bad thing.

Political scientists are fond of saying that one difference between the national constitution and state constitutions in the United States is that the latter are far easier to change. Maybe, but in New York at least the changes we’ve been making in recent years have been of marginal consequence. Peter Galie, our leading state authority on the constitution’s history and development, told me recently that he thought there had not been a significant constitutional amendment passed in New York for upwards of two generations.  I disagreed; the amendment making the constitution gender neutral passed in 2001 was, in my view, symbolically powerful. 

But this was an exception. Recent amendments have been about things like altering the conditions under which veterans could get bonus points for civil service jobs, allowing state prisoners to do volunteer work for not-for-profits, or letting an Adirondack village improve their water systems.  (Why the constitution’s “forever wild” provision for the Adirondack Preserve trumps its local home rule provision remains a mystery.)  Here the salient point is not that the constitution has been emptied of meaning, but why this sort of stuff is in the document at all.       

To become a truly healthy polity New York needs serious attention to state constitutional change, if only to bring congruence between our basic laws and the actual operation of our state government.

Professor Benjamin's comments

With all due respect, I disagree with Professor Benjamin's comments.  There seems tobe a bit of a panic and prejudice in his comments.  If the economy was still rolling merrily along I doubt that some of the issues touched on would be of such great concern.  You do not, in my opinion, open Pandora's Box unless you know what is in it.  A Constitutional Convention allows dramatic and perhaps unneccesary change because there is wide spread panic over the present economic situation.  Agreed the Governor(s) and Legislators of the State have not done well in following the Constitution at times.  Then it becomes the obligation of the people of the State to voice their objections at the ballot box.  Don't like what is happening, do not vote for the incumbant.  I know that sounds naive, but it is the back bone of our democracy.  If it doesn't work, fix it.  But not by opening up the Constitution to every wacky idea floated by an angry populace (or more likely pressure group), including those articles which are working to benefit large numbers of people and the State.

Quality change does not happen in an atmosphere of panic.  Cogent thinking  and process should be the methodology of changing the Constitution.  Laws of the people and for the people are the responsibility of the elected leaders of the State.  Limiting the unfair advantages of  incumbants through pressure and more pressure by numbers of people, not lobbyists, can change the process.  That is the democracy we need, the democracy of numbers.



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