New Yorks
Broken Constitution
SUNY series in American Constitutionalism
Robert J. Spitzer, editor
New Yorks
Broken Constitution
THE GOVERNANCE CRISIS AND
THE PATH TO RENEWED GREATNESS
E DITED BY
P ETER J. G ALIE
C HRISTOPHER B OPST
AND G ERALD B ENJAMIN
Published by State University of New York Press, Albany
2016 State University of New York
All rights reserved
Printed in the United States of America
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Marketing, Anne M. Valentine
Library of Congress Cataloging-in-Publication Data
Names: Galie, Peter J., editor. | Bopst, Christopher, editor. | Benjamin, Gerald, editor.
Title: New Yorks broken constitution : the governance crisis and the path to renewed greatness / edited by Peter J. Galie, Christopher Bopst, and Gerald Benjamin.
Description: Albany : State University of New York Press, 2016. | Series: SUNY series in American constitutionalism | This volume grew out of discourse at a number of conferences at the Rockefeller Institute of Government held over the past two decades. | Includes bibliographical references and index.
Identifiers: LCCN 2016007710 (print) | LCCN 2016007999 (ebook) | ISBN 9781438463339 (hardcover) | ISBN 9781438463322 (pbk. : alk. paper) | ISBN 9781438463346 (e-book)
Subjects: LCSH: Constitutional lawNew York (State)Congresses.
Classification: LCC KFN5682.A75 N49 2016 (print) | LCC KFN5682.A75 (ebook) | DDC 342.747dc23
LC record available at http://lccn.loc.gov/2016007710
10 9 8 7 6 5 4 3 2 1
Contents
Peter J. Galie and Gerald Benjamin
Peter J. Galie and Christopher Bopst
Peter J. Galie and Christopher Bopst
Daniel L. Feldman and Marc C. Bloustein
Jeffrey Wice and Todd A. Breitbart
Peter J. Galie
Richard Briffault
Kenneth Bond
Christopher Bopst
Paul Bray
Gerald Benjamin
Gerald Benjamin
Preface
The idea for this volume emerged from conferences over the past two decades held at the Rockefeller Institute of Government. The discourse at those conferences brought home to us the extent to which the provisions of New Yorks constitution were frequently irrelevant to the actual governance of the state. The process by which it happened was slow, sometimes imperceptible; the result was the cumulative consequence of actions and interpretations over decades. The analogy that seemed most apt was the Potemkin Village: our constitution is now at least as much faade as it is operating document. We were motivated to ask: When and how did this process of uncoupling constitutional provision from governing practice begin; with what consequences; and what, if anything, can be done to rectify this condition? This collection of essays constitutes the fruits of our search for answers to these questions.
The issues addressed by the contributors to this volume are diverse and complex, encompassing as they do, state and local finances, the judiciary, conservation, gambling, legislative redistricting, local government, the structures of government, and methods of changing the constitution. We sought authors who were widely acknowledged to be well-versed on those parts or provisions of the constitution that suffer most from the Potemkin affliction. We believe readers will find our choices to be felicitous. We have endeavored to add hyperlinks wherever possible to make this a useful reference source for those wishing to educate themselves further about the issues discussed in the book and constitutional reform in general.
Ours is a career-long interest in the New York Constitution. Academic research has convinced us that constitutional reform is a prerequisite to effective governance in New York. Added impetus for this volume is the vote scheduled for November, 2017, on the question of whether to hold a constitutional convention to revise and amend the constitution. In the pendency of this vote, we hope the essays written by the editors and other contributors have achieved the delicate balance of disinterested scholarship and passionate advocacy.
Attempts to trace the well spring of the ideas and information presented in this volume would be an exercise in futility. In addition to the already mentioned conferences sponsored by the Rockefeller Institute of Government, which provided the editors an opportunity to present their ideas before informed and active audiences, interactions among the editors over the years at various fora, along with our published research, have been important parts of that mix. We have also learned much from the contributors to this volume and other colleagues interested in the New York State Constitution and state constitutionalism generally. Both directly and indirectly, their analyses have helped shape the introduction and conclusion to the volume. The assistance of Robert Ward of the Rockefeller Institute and now with the State Controllers Office, and the thoughtful comments of our anonymous reviewers have all been part of the crucible from which this volume has emerged. Finally, we would be remiss if we did not also acknowledge the support and forbearance of our families.
The Editors
Introduction
Peter J. Galie and Gerald Benjamin
The most basic question that one can ask about any political system is whether it is capable of governing effectively.
Sanford Levinson
The New York State Constitution was not written to last for long periods of time, nor does it have the ability to withstand new generations and changed conditions. The constitution is in fact a huge statute in constant process of reexamination and revision by the unsatisfactory process of submitting to the people highly technical and minute changes.
Temporary Commission on the Revision and Simplification of the Constitution
Surely this must be the first task of constitutional reformto make people of our states aware that they live under a constitution and that for better or worse, it affects their everyday life whether they live on rural mail routes in little towns or a teeming metropolis. Until this is done, the people are not likely to demand or even accept the more thorough going revision so badly needed in many states.
Robert Dishman
New Yorks state constitutions have mattered. Regularly revised or even replaced over the course of our now almost two and a half centuries of statehood, they have helped preserve and foster our liberty, diversity, social welfare, tolerance, and enterprise. They have provided an evolving framework for a self-governing polity and ordered liberty, adapting to and changing with the astonishing social and economic transformation that has shaped and continues to shape the state and nation.
Notwithstanding this proud history, over the most recent decades, and though there has been ample incentive to do so, we New Yorkers have shown no willingness to comprehensively reconsider the fundamentals of the governance arrangements set out in our current state constitution. At a time when scholars of the national Constitution, concerned about stasis in Washington, have turned to the states for models of willingness to broadly address questions of constitutional change, our state constitution has more and more come to be frozen in time, a repository of outdated restrictions and procedural irrelevancies. Some parts of the document continue to flourish; many, however, are treated in the political branches and the courts as inconvenient obstacles to be overcome or bypassed.
