| "Kaye —
Dual Constitutionalism in Practice" |
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Against this background, I would like to turn to New York State in particular. As an expression of inviolable principle and fundamental law, the New York Constitution is a curious document-particularly when laid against the United States Constitution. I mean this in two respects. First, the state Constitution is long and filled with detail, like a volume of miscellaneous statutes, specifying even-as a matter of constitutional dimension--the width of certain ski trails. The article dealing with local finances (article VIII) is alone longer than the entire federal Constitution. Since its enactment 210 years ago, it has swelled in size and scope, particularly in the aftermath of the depression, as part of the amendments of 1938. Provisions relating to barge canals, elimination of railroad grade crossings, social welfare and returning veterans reflect paramount concerns at given moments in the rich history of this State, alongside the abiding concern in our extensive Bill of Rights and throughout the Constitution for fundamental rights and individual liberty. Second, while the federal Constitution has been amended only 26 times in its entire history, the state Constitution has been amended often, for the most part in isolated fragments initiated by the legislature and thereafter approved by the People at a general election.[37] The Constitution has also been extensively revised, most recently in 1938, as the consequence of constitutional conventions. The last proposed new constitution of 1967 was resoundingly defeated at the polls, as were the proposed new constitutions of 1869 and 1915. Additionally, as the Constitution itself directs, every 20 years, and whenever the legislature provides, the People are asked at a general election, "Shall there be a convention to revise the Constitution and amend the same?" The combination of high detail and accessibility of the amendment process gives our Constitution a distinctive New York character; it is a product and expression of this State. While current interest centers on the common provisions of our two Constitutions, to proceed right to that issue ignores the fact that the People of this State have chosen to "constitutionalize" a great number of other matters in the Bill of Rights and throughout the state Constitution. Fortuitously, the heightened iinterestin concurrent provisions has drawn attention as well to the many matters uniquely part of the state charter. I will not linger long on a recitation of the provisions of the state Constitution that have no specific analogue or counterpart in the federal document. No one would question that, though other considerations such as due process or equal protection may also be implicated, these singular provisions must at some point be analyzed as a matter of state law. Our Constitution provides, for example. the right to a free education[38] and declares that the aid, care and support of the needy are public concerns.[39] It directs that provision be made for the protection and promotion of public health, and it recognizes that the legislature in its discretion may provide for low-rent housing and nursing home accommodations for persons of low income.[40] It specifies that environmental conservation is a policy of this State, and mandates that adequate provision be made for abatement of pollution and noise.[41] As a matter of constitutional directive, certain executive rules and regulations cannot be enforced until they have been publicly filed.[42] The benefits of membership in a state pension or retirement system may not be impaired;[43] and the jurisdiction of the Appellate Division to hear appeals may not be diminished.[44] The Bill of Rights bars the abrogation of a cause of action for wrongful death; it guarantees the right of workers to the prevailing wage, and to organize and bargain collectively; and it provides for workers' compensation.[45] Given its laborious detail, our Constitution may not in every phrase ring with the majesty of Chief Justice Marshall's declaration: "it is a constitution we are expounding."[46] But it is a constitution we are expounding, and its commands are therefore entitled to the particular deference that courts are obliged to accord matters of constitutional magnitude. To borrow former Chief Judge Breitel's eloquent words, in overturning the moratorium on enforcement of City obligations as violative of the State constitutional requirement of a pledge of faith and credit: "But it is a Constitution that is being interpreted and as a Constitution it would serve little of its purpose if all that it promised, like the elegantly phrased constitutions of some totalitarian or dictatorial Nations, was an ideal to be worshipped when not needed and debased when crucial.[47] One cannot help but wonder, reading our Constitution, why some seemingly everyday matters were elevated to a place in that document of fundamental law and, even beyond, enshrined in its Bill of Rights. Many of these matters were and are the subject of state statutes, some additionally the subject of federal statutes. They were nonetheless purposefully placed in our state Constitution-within an ambit of special deference and protection-in many instances to declare the existence of a right and correlative commitment by the State; to put them beyond repeal by the legislature; and to insure that derivative legislation involving the expenditure of state money and credit would not be cast out as unconstitutional by the judiciary. The People have declared to the courts and others that, as part of the Constitution, these matters stand above the miscellaneous statutes as their expression of what they consider to be particularly important and not subject to revision except by them. This being so as to the provisions that have no federal analogue or counterpart, no less can be said of the provisions of our state Constitution that do have a parallel in the federal Constitution. These provisions have obviously also been placed, and retained, our Constitution as an expression of the significance they have to the People of this State. |
 The Historical Society of the Courts of the State of New York |
