The Law Can Be an Unreliable Narrator
The Law Can Be an Unreliable Narrator
The law on the page might not be the law in fact
The fundamental idea of this post: “The law” is an emergent sum of a complicated, complex system. It is distinct from its many individual inputs, some of which could be described as constitutions, statutes, rules, and cases.
I recommend reading this post if those words aren’t clear:
The New York State Constitution is an unreliable narrator
You can’t just read the plain text of the New York State Constitution and gain a reliable up-to-date understanding of foundational state law. The New York Court of Appeals (the state’s highest court), the federal constitution, federal statute, and the U.S. Supreme Court have overridden it in various ways.
One example: New York’s Constitution lists voter qualifications in Article II, Section 1. You have to be 18 years old, etc. I don’t think this section would surprise anyone. But the text has only said this since November 1995, when voters approved a constitutional amendment that altered it.
Prior to 1995, the state constitution said you had to be 21 years old to vote. The problem? That text had been inoperative for more than twenty years.
In 1971, the U.S. Constitution was amended for the 26th time to say (emphasis added): “The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age.”
This was part of a larger federal push that began with a federal statute, which New Yorkers fought. Some wanted to preserve their more restrictive voting requirements. Per The New York Times in June 1970:
From ~1971 to 1995, the plain text of the NYS Constitution would have led you astray about voting qualifications. So now you have to ask yourself: in which other ways is the constitution’s plain text misleading, and how can you figure them out?
Unfortunately, there is no shortcut here other than legal research and spending a lot of time with the law. Maybe I will eventually do a really long write-up about it. But in the meantime there are a few books that give a great introduction to this subject. I recommend starting with New York’s Broken Constitution: The Governance Crisis and the Path to Renewed Greatness.1
Just for fun (and it is more fun, legally speaking), here’s a second example of an ongoing issue with the constitution’s plain text. When laying out the apportionment process for state senate districts, it says:
…no county shall be divided in the formation of a senate district except to make two or more senate districts wholly in such county.2
This provision, like the voting age, has been overridden by federal law and courts. But unlike the voting age, the constitution has not been updated to comply with superseding law; the plain text is just misleading. In 1992, when Bronx County was split into six separate senate districts, several of which spread into neighboring counties in facial violation of the provision above, New York’s highest court said this:
The issue before us on these appeals is not whether the Senate redistricting plan technically violates the express language of the State Constitution. No one disputes that such a technical violation has occurred, and in Matter of Orans, we recognized that such violations were inevitable if the Legislature was to comply with Federal constitutional requirements.3
Lol.
The New York City Charter is an unreliable narrator
Just like the state’s foundational legal document, the city’s can play fast and loose with plain text interpretability too.
When I did my first thorough read of the charter in 2021, I found a ton of errors—some substantive, and others that were more like typos. I continue to find new ones almost every time I crack it open.
Here’s one substantive example. I tweeted it at the contracted publisher of the city charter, and they forwarded the info to the city’s Law Department (you can also email them directly).
The city government is aware that their law isn’t in the best shape. Last year the City Council passed multiple laws to repeal outdated, unnecessary, and unconstitutional provisions of the City Charter and the Administrative Code (see enacted Local Laws 67, 68, and 69 of 2023).4
Nonetheless, errors persist in the same way as the state constitution. And lest you think this is a modern problem, it has ever been thus:
…§15 of the Greater New York Charter called for the compilation of a new code of ordinances for the unified city. After much delay, this was finally accomplished in 1906. When the 1906 code was criticized for being confusing, repetitious, and containing obsolete provisions and antiquated phraseology, a new code was promulgated in 1916.5
The judiciary might misapply or misunderstand the law
New York has a large slate of local courts, like village and town courts. Often their associated judges are not lawyers (“lay judges”), and they represent the bulk of state corrective action against the judiciary.
The New York Times ran a particularly harrowing account of the local judiciary in 2006,6 but the problem persists. The New York State Commission on Judicial Conduct issued a report in 2019 that shows the ongoing need for town and village court assistance, in much more tempered language than NYT:
It has been the Commission’s experience that many lay justices comport themselves and discharge their adjudicative responsibilities in such a manner as to seem indistinguishable from their law-trained counterparts. It is also true, however, that lay justices are more likely than law-trained justices to violate promulgated mandates to respect, comply with, be faithful to and be professionally competent in the law, in some instances because they do not appreciate certain nuances or even fundamental legal precepts that their law-trained colleagues are likely to know.7
There is also an ongoing, but non-boiling-over, debate about the selection mechanisms for, and the quality of, the state’s supreme court justices.
Why can’t we just fix obviously wrong law?
In this post I’ve mentioned a few sections of the New York State Constitution and the New York City Charter that are outdated. So why can’t they just be fixed?
Well—who would have that power? And who determines what is an easy fix that doesn’t have to go through the regular legal amendment process? As a proposition, “legal typo fixer in chief” is a nonstarter.
You can’t edit law the same way you would a Google Doc, even if it is obviously wrong. The wrong things will stay in there until the relevant legislature, in combination with the executive or the people, acts to remedy the wording.
In the meantime, the government ignores the incorrect or outdated passages; its machinery is capable of doing that. The benefit of this approach: less work in the short term, and no legislating is needed. The cost: the law becomes increasingly convoluted and inscrutable, especially to the everyday citizen.
But don’t despair! If this post is your first introduction to the idea that the law isn’t just the text written on a page in front of you, but the emergent sum of multiple kinds of law (and people) interacting with each other, know this: you can learn to understand it. There are models, rules, and heuristics to help you. But those are for another post (and many books), along with the many other ways that the law on the page might not be the law of the land.8
Galie, Peter J., et al. New York’s Broken Constitution: The Governance Crisis and the Path to Renewed Greatness. State University of New York Press, 2016.
The whole book is good at examining the ways in which the NYS Constitution is an unreliable narrator, but Chapter 1, “Cleaning the Constitution Part I: Institutions and Rights” and Chapter 2, “Cleaning the Constitution Part II: Public Policies” are the tip of the spear.
Matter of Wolpoff v. Cuomo, 80 N.Y.2d 70, 77-78 (N.Y. 1992)
The Report and Advisory Board Review Commission is tasked with streamlining reporting requirements for city agencies, and they’ve been active under Mayor Adams. You can read some coverage about their recent activity here.
Manz, William H, and Ellen M Gibson. Gibson’s New York Legal Research Guide. Buffalo, New York, William S. Hein & Co., Inc, 2014, p. 529. From chapter 26, “New York City Administrative Code.”
“In Tiny Courts of N.Y., Abuses of Law and Power,” The New York Times, September 5, 2006.
I didn’t even get into executive modification of statute. A president, governor, or mayor might implement a statute in a different way than the legislature intended, or not implement it at all!