Amending state constitutions keeps them vital, says New York’s Chief Judge Rowan Wilson in IJA Brennan Lecture
Courts, legislatures, and the public at large should actively work to ensure that state constitutions are innovative, robust, and able to address modern-day issues, Chief Judge Rowan Wilson of the New York State Court of Appeals argued at the 30th Annual IJA Brennan Lecture on State Courts and Social Justice. Such activities include amending state constitutions, he emphasized. The chief judge examined the historical roots—as well as the powers and possibilities—of the New York state constitution in a discussion titled “State Constitutional Amendments and the Dynamics of Democratic Social Change.” The January 28 event was hosted by NYU Law’s Institute of Judicial Administration.
For this milestone anniversary, Wilson revisited and redirected key themes of the inaugural lecture, delivered in 1995 by Judith Kaye ’62. Then chief judge of the New York State Court of Appeals, Kaye had persuaded then-Dean John Sexton to launch an NYU Law lecture series focused on the state judiciary. In her 1995 remarks, she called for state court judges to use common law to act decisively as a means to remedy gaps or textual shortcomings in statutory law. Conversely, Wilson focused his remarks on state constitutional law.
“Of course, the New York Court of Appeals has historically exercised an important role in the development of our constitutional jurisprudence, but the court is not the sole arbiter of constitutional change,” he said. “The people either directly or through propounding referenda have regularly and consistently amended our constitution. Such a robust dialogue between the branches of government and the people makes for greater governmental legitimacy, quite apart from stare decisis.”
In the absence of new amendments to the federal constitution, Wilson argued that there is ample room for states to have a say in safeguarding and expanding various legal protections. As he discussed recent cases heard by the New York State Court of Appeals—including a ruling that barred noncitizens from voting in New York City municipal elections and a decision to uphold a criminal conviction issued by an 11-member jury—Wilson underlined that constitutional conventions and citizen-driven initiatives can bolster or amend state constitutions.
“Whether our [appellate] decisions in those cases will become ingrained in state law or a relic of history is ultimately the decision of the people,” Wilson said. “At Chief Judge Kaye’s inaugural lecture, she celebrated state courts’ use of the common law, because common law decisions, unlike constitutional ones, are more susceptible to subsequent modification. Relying on the common law enables state courts to shape evolving legal standards more cautiously, and thus allows them some flexibility that is not an option [for] federal courts. Today, I make that same extension to state court decisions grounded in their respective constitutions.... It is the impermanence of state constitutional decisions that reveal their value.”
Wilson also pointed to the benefits and significance of “constitutional amendability” by drawing from New York history and case law. In one example, Wilson referenced the New York state legislature’s passage of a Workers’ Compensation Law in 1910. One year later, the Court of Appeals deemed the measure unconstitutional. But in the aftermath of the Triangle Shirtwaist Factory fire, which resulted in the deaths of 146 people, a constitutional amendment later reauthorized the law in 1913.
Additionally, Wilson discussed the 1976 case People v. De Bour, in which the New York Court of Appeals established a four-tiered system for assessing police encounters with private citizens. “One of New York’s most distinctive deviations from federal constitutional law was created nearly 50 years ago in People v. De Bour,” said Wilson. “If De Bour, no matter what its nature, outlives its purpose; or if a better ruling comes along, or if it was a bad ruling from the start, the Court of Appeals can change it. But so can the people.”
Voicing his own wish that New York hold its first constitutional convention since 1967, Wilson reiterated throughout his lecture that pathways for amending—and ultimately enlivening—the state constitution foster the legitimacy of legal and governmental institutions while also providing lessons for municipalities nationwide. “The relative ease with which New Yorkers can amend [the] state constitution is evidence of a popular expectation that it is meant to accommodate change.… The dynamic relationship between our state’s constitution and its people promotes a healthy system of governance,” he said.
Selected remarks from the Brennan Lecture:
“Now, because it has become virtually impossible to amend the United States Constitution, the decisions of the United States Supreme Court have become the exclusive source of constitutional change. But the founders envisioned a more popular and more lively culture of amendment. Their vision was one whereby the US Constitution was not only more amendable by the people, but also mostly concerned with establishing the structure of the government and delineating its powers, leaving the articulation for protection of individual rights against legislative incursion to the courts, via the common law, which incorporated the natural right element. Understanding why that vision has not borne out helps to clarify why I believe state courts should be more innovative in their constitutional decision-making than their federal counterparts are now.”
“Although fallible, state courts are capable innovators and should participate without hesitation in the dynamic process of constitutional amendment in their states, secure in the knowledge that, in the end, the ultimate arbiter of the state constitution’s scope and sweep is the people.”
Photo by Jefferson Siegel for NYS Unified Court System.
