New York’s “incoherent, redundant, embarrassing” state constitution

New York Senate
New York Senate
Mike Groll

New York’s “incoherent, redundant, embarrassing” state constitution

New York’s “incoherent, redundant, embarrassing” state constitution
October 24, 2017

“The amount of material in the New York State Constitution that is obsolete, incoherent, redundant, or misplaced is startling, not to say embarrassing.”

– Peter Galie and Chris Bopst

Every 20 years, New Yorkers get the opportunity to clean out their constitutional closet and write a new one, but – like actual cleaning – there’s often some extra words that don’t get wiped away. “The geological deposits, layer upon layer – nobody ever goes back and removes the previous layer … and sometimes it has jarring results,” said Peter Galie, professor emeritus at Canisius College and expert on the New York Constitution. He and partner Chris Bopst combed through the constitution looking for detritus, and “we found 14,000 words that could be taken out and not a thing would change.”

RELATED: Dueling experts: Should New York hold a constitutional convention?

Don’t go looking for odd laws like no flirting, no talking in elevators and no selfies with tigers – that’s in the penal code. But Galie found the state constitution has some weird parts too.

I§9(1) “Nor shall any divorce be granted otherwise than by due judicial proceedings”

“The notion of a person seeking relief from a marriage through legislative means is anachronistic and unlikely,” Galie and Bopst wrote. And, Galie added, “What’s it doing in the Bill of Rights?”

I§7(d) “The use of property for the drainage of swamp or agricultural lands is declared to be a public use…”

Drain the swamp! “That’s a remnant of the 19th century,” Galie said. “Of course, it has no meaning today because the state has long ago assumed the power of eminent domain.”

I§9(1) “No lottery or the sale of lottery tickets, pool-selling, bookmaking, or any other kind of gambling, except lotteries operated by the state …”

“What is that doing in the Bill of Rights?” Galie asked. “It’s now become a hollow shell. Everybody gambles every which way.”

I§8 “In all criminal prosecutions or indictments for libels … if it … was published with good motives and for justifiable ends, the party shall be acquitted.”

“Well, that’s a quaint thing,” Galie said. “You cannot require someone to say that their motives were good in a libel suit. They don’t have to prove that!”

VII§14 “The legislature may authorize by law the creation of a debt … to provide moneys for the elimination … of railroad crossings at grade within the state …”

This long section was added in 1938 and “those debts have long been paid off, but this 800-word section remains in the constitution,” Galie said. “It’s of historical interest only.”

IV§5 “In case the governor … is absent from the state … the lieutenant-governor shall act as governor until the inability shall cease.”

This provision dates back to 1777, and new technology has rendered it an anachronism, but Galie and Bopst write, “The clause provides an opportunity for mischief by a rogue lieutenant governor.”

Jeff Coltin
is a senior reporter at City & State. He covers New York City Hall.