The New Jersey Constitution: A Tool of Good Governance, Not Partisan Politics     

This essay is part of a 50-state series about the nation’s constitutions. We’ve asked an expert from each state to dive into their constitution, narrate its history, identify its quirks, and summarize its most essential components for our readers.

The adoption of the 1947 New Jersey Constitution was a watershed event in the political and economic development of the state. Two prior constitutions, adopted in 1776 and 1844, were designed for the needs of a rural agrarian society, with extremely weak executive powers, a labyrinthine court system, and based on the principle of limited government and legislative supremacy. The 1947 constitution was an overdue recognition of the needs of a state with an urban and suburban population and industrial economy.

The 1776 Constitution

The first New Jersey Constitution was promulgated by the provincial legislature on July 2, 1776, the same day that the Continental Congress in nearby Philadelphia adopted the resolution of independence that would be declared to the public two days later. It provided for a legislature comprised of an assembly and a legislative council, with the latter also acting as the court of last resort in any judicial appeals. A weak governor, elected not by popular vote but by the legislature for a one-year term, presided over the legislative council and served as the chancellor. Political rights were subject to minimum property requirements. A person had to be both a landowner and worth £1,000 of property in the relevant county to be elected to the legislative council and £500 of either real or personal property to be elected to the assembly. 

The vote was open to all “inhabitants of the Colony of full age,” as long as they were worth £50 and had lived in the county where they were voting for a full year. It therefore included women and Black Americans, unlike most other provisions of the time that limited the vote to white males. Indeed, women and Black people did vote in New Jersey from 1790 until statutory authorization was repealed in 1807, with that exclusion later solidified in the 1844 constitution.

There was no comprehensive articulation of individual rights, but the common Law of England was incorporated by reference, and the right to trial by jury was specifically preserved “without repeal, forever.”

The 1776 constitution was, in form, merely an act of ordinary legislation by the state legislature. It did not have any provision for its amendment, and was intended as a temporary measure, not as a permanent outline for the structure of government. Perhaps its most distinctive feature is the last clause, which provided “that if a Reconciliation between Great Britain & these Colonies should take Place, and the latter be again taken under the Protection & Government of the Crown of Great Britain, this Charter shall be null and void.” Nevertheless, this document remained the organic charter for New Jersey for 68 years.

The 1844 Constitution

By the early 19th century, the frailties of the 1776 constitution were increasingly apparent, and eventually a convention was called for the drafting of a new document. The constitution adopted in 1844 attempted to address some of the failings of its predecessor by providing for a governor elected by popular vote for a non-renewable three-year term and giving the governor the power of veto over legislation. The veto, however, could be overridden by a simple majority vote of both houses. It also expressly introduced the concept of separation of powers, with the legislative council succeeded by a senate and its judicial powers transferred to a court of errors and appeals, comprised of the chancellor and all the justices of the supreme court sitting en banc. It provided that the governor shall nominate and the senate shall confirm officers of the state, but only those “whose appointments are not otherwise provided for by law.” 

The 1844 constitution did provide for a comprehensive bill of individual rights, many of whose provisions survive — some in modified form — in the present constitution. These included the right of free speech, freedom of religion, freedom from unreasonable search and seizure, and trial by jury. Suffrage, however, was limited to white male U.S. citizens age 21 and older who had lived the state for one year.

The Emergence of Fundamental Rights Analysis

Article I, paragraph 1 of the 1844 constitution introduced the seminal language, “All men are by nature free and independent, and have certain natural and unalienable rights, among which are those of enjoying and defending life and liberty, acquiring, possessing, and protecting property, and of pursuing and obtaining safety and happiness.” (In the 1947 constitution, the introductory clause was changed to “All persons are by nature free and independent” to establish the constitutional underpinning of equal rights for women.)

This provision closely followed language first drafted by George Mason for the Virginia Declaration of Rights, adopted as part of its state constitution in 1776. Subsequent versions are also found in many other early state constitutions, including those of Maryland, Massachusetts, New Hampshire, New York, North Carolina and Pennsylvania. This language also clearly served as the textual basis of Justice Bushrod Washington’s celebrated formulation of unenumerated fundamental rights articulated in Corfield v. Coryell. In determining which rights were deemed to be “fundamental” and thereby constituted “privileges and immunities of citizens in the several states” that could not be denied to citizens of other states by Article IV, section 2 of the U.S. Constitution, Washington began with the right to “the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety.” The Virginia Declaration’s concept of “natural and unalienable rights” constituting the primary source of individual rights under state constitutions was therefore well established prior to the Civil War.

There is thus a historical basis for Article 1, paragraph 1, to constitute the source of many of the unique positive fundamental rights that the New Jersey Constitution now provides. In contrast, no similar general articulation of fundamental rights was or has been included in any operative provision of the U.S. Constitution.

Structural Changes in the 1844 Constitution

Despite its attempt to strengthen the executive branch, the legislature remained the dominant actor in state government, due in large measure to mistrust of a more active form of civil government by the landowners who still controlled the state’s political system and economy. The legislature provided for the appointment of dozens of independent boards and government agencies that were not under gubernatorial supervision and control, often serving for terms longer than that of the governor.

From 1873 to 1875, a series of amendments were adopted whose main purpose was to conform the state constitution with the requirements of the 13th, 14th, and 15th amendments of the U.S. Constitution, thus eliminating the limitation on voting rights to white male citizens. But the 1875 amendments also addressed changing social norms borne of the Industrial Revolution and growth of an urban population more dependent on government services. Some of those changes eventually formed the basis of positive state constitutional rights, such as requiring the legislature to provide for a thorough and efficient public school system. As many states did in the 19th century, New Jersey in 1875 established a general corporations law and eliminated corporate charters granted by special gift of the legislature, which had become the source of political favors and corruption.

The 1947 Constitution

By the early 20th century, the 1844 constitution’s structural flaws were glaringly apparent. Local political machine bosses resisted reform, fearful of losing their control, and smaller counties were concerned about losing their equal representation in the state senate. A serious proposal was developed between 1942 and 1944 but was deflected by the pendency of World War II. In 1947, however, a popular referendum finally approved the convening of a constitutional convention, which produced a document that was ratified by popular referendum in November 1947 and took effect in 1948. 

The new constitution redefined the role of the governor from a weak nominal executive to one of the strongest state chief executives in the nation. The governor nominates or appoints all officers of the executive branch, who serve at his pleasure, except the secretary of state and the attorney general. His veto can be overridden only by two-thirds vote of each house. Moreover, the governor enjoys a line-item veto over appropriations, and through the device of a “conditional veto,” can suggest amendments to a bill, which if then reenacted by the legislature, can be quickly presented again to the governor for approval without repeating the entire legislative process.

Another major structural achievement of the 1947 constitution was a complete overhaul of the judicial system. The New York Times declared that the pre-1947 New Jersey judiciary “comes out of Dickens,” adding that “its delays are notorious,” the “judges are numerous,” and “there must be some twenty different kinds of courts.”

Replacing an arcane system of chancery courts and law courts whose respective jurisdictions overlapped and interfered with each other, the 1947 constitution created one supreme court and one superior court, with the latter comprised of the appellate division, the chancery division and the law division. (County courts created in this constitution were later abolished and their jurisdiction transferred to the superior court.) 

Unlike most states, New Jersey judges are not elected but nominated by the governor and confirmed by the senate to an initial term of seven years, and if renominated and reconfirmed, enjoy tenure until the mandatory retirement age of 70. Once a judge is appointed to the superior court, the chief justice has the sole authority to assign the judge to one of the three divisions. The distinction between the chancery and law divisions is purely administrative and not jurisdictional, and thus any superior court judge assigned to one of the two trial divisions has the power to afford a complete remedy, whether equitable or legal in nature, or both.

The supreme court was given the exclusive constitutional authority to promulgate the rules of court and to regulate the legal profession, and it has on occasion rebuffed attempts by the legislature to intrude in those areas. Moreover, through interpretation of the clause that superseded the ancient practice of prerogative writs, judicial review of administrative action is afforded as of constitutional right, and thus no statute, such as the Administrative Procedures Act under federal law, is needed to provide that review nor permitted to interfere with its exercise. These provisions create a significantly different allocation of powers among the branches of government, with the supreme court in some cases exercising a role given to the legislature under other systems.

Equipped with these powerful structural and procedural tools, the New Jersey Supreme Court of course also enjoys the powers of any state court of last resort. One unique aspect of state constitutionalism is the fact that each state’s highest court is not only the ultimate interpreter of the state’s constitution and its ordinary statutes, but is also the final interpreter of the common law as it is established and evolves in that state. This makes available the device, denied to federal courts bound by the Erie doctrine, of melding the common law, statutes and the state constitution to achieve a combined result that might not have been possible if each source of law were applied separately. 

One further reason that development of New Jersey state constitutional jurisprudence has flourished is the New Jersey Supreme Court’s express articulation of factors that state courts may consider in deciding whether to give the state constitution independent meaning. They include considering textual language, legislative history, preexisting state law, the state’s own history and traditions, and matters of particular state interest or local control. These factors were first articulated in a concurring opinion by Justice Alan Handler in State v. Hunt, and give lower state courts a measure of confidence that permits them to apply the state constitution without the fear that they are creating novel doctrine out of whole cloth.

Positive Rights

One of the notable features of New Jersey constitutional jurisprudence is its use in the discovery and articulation of positive rights — those rights that go beyond the negative proscriptions against government intrusion found in the federal Bill of Rights or the 14th Amendment and further impose an affirmative duty upon the state to protect and promote fundamental rights that are inherently enjoyed by all individuals. 

Thus, in State v. Schmid, the New Jersey Supreme Court found that the state constitution’s provision that “Every person may freely speak, write and publish his sentiments on all subjects” was broader than its federal counterpart and recognizes the inherent right of members of the public to engage in expressive activity, under certain circumstances, even on private property which in that case was Princeton University’s campus. Although federal case law had made clear that the First Amendment right of free speech applied only to public property, the Schmid court found that this federal requirement of state action (which was largely driven by federalism concerns that have no relevance when a state court is construing its own constitution), did not limit the state constitutional right.

Later, in New Jersey Coalition Against the War in the Middle East v. J.M.B Realty, the court considered the context of regional shopping centers and malls. In applying the Schmid reasoning, the court cited a number of empirical and social science studies, and found that "the shopping center is an integral part of the economic and social fabric of America” which had supplanted traditional public business districts where free speech once flourished, particularly in suburban areas that now make up a large swath of New Jersey communities. This reasoning demonstrates another singular aspect of New Jersey state constitutional jurisprudence, which is the ability to base constitutional decisions upon more localized cultural, social, and economic conditions. 

Two lines of cases exemplifying other positive rights have achieved widespread notoriety and occasionally controversy: the state’s financial obligation to provide a thorough and efficient public education described in 24 separate decisions starting with 1985’s Abbott v. Burke, and the obligation of local government to provide the reasonable opportunity for affordable housing announced in 1975’s Southern Burlington County NAACP v. Mount Laurel.

Abbott was based primarily on Article VIII of the New Jersey Constitution, which requires that “The Legislature shall provide for the maintenance and support of a thorough and efficient system of free public schools for the instruction of all the children in this State between the ages of five and eighteen years.” The court held that obligation was not satisfied by primary reliance on local property taxes to support public schools.

Abbott was also secondarily based, however, upon the constitution’s Article I, the provision originally contained in the 1844 constitution acknowledging “certain natural and unalienable rights,” which has been given an expansive reading by the court as the source of otherwise unenumerated fundamental rights. These include New Jersey’s version of the rights to due process and equal protection, which otherwise are not contained textually in the state constitution as they are in the U.S. Constitution.

The state constitutional basis for the Mount Laurel doctrine is based wholly on Article I and the principles of substantive due process and equal protection implied in that clause, the requirements of which the court noted may be more demanding than those of the U.S. Constitution. From those normative principles the court extracted the further requirement “that, affirmatively, a zoning regulation, like any police power enactment, must promote public health, safety, morals or the general welfare.” The court then rejected the contention that local zoning authorities are limited to a consideration of only those benefits to the general welfare which would be received by residents of the local municipality and found that that “general welfare . . . comprehends the benefits not merely within municipal boundaries but also those to the regions of the State relevant to the public interest to be served.” From that obligation arose the state constitutional requirement for all levels of state government to exercise the police power to serve not only their local jurisdiction but the general population, and led to the imposition of affordable housing obligations upon local government based on regional and not merely local needs.

Article I is also the source of one other state constitutional right that has become of great interest given the U.S. Supreme Court’s 2022 decision in Dobbs v. Jackson Women’s Health Organization that there is no federal constitutional right to an abortion. In both 1982’s Right to Choose v. Byrne and 2000’s Planned Parenthood v. Farmer, the court found that, “By declaring the right to life, liberty and the pursuit of safety and happiness, Article I, paragraph 1 protects the right of privacy, a right that was implicit in the 1844 Constitution” — “including a woman’s right to make certain fundamental choices.” Right to Choose explained that a state statute limiting Medicaid funding for abortions “impinges upon the fundamental right of a woman to control her body and destiny. That right encompasses one of the most intimate decisions in human experience, the choice to terminate a pregnancy or bear a child.”

Unique Methodology

Because the New Jersey Constitution does not expressly guarantee due process and equal protection, the New Jersey Supreme Court has extracted from Article I its own methodology for measuring the constitutionality of state action that intrudes upon individual liberties. It has rejected the regime of tiered scrutiny — strict scrutiny, intermediate scrutiny, rational basis — employed in federal equal protection analysis, noting in Planned Parenthood that “in cases involving a classification that indirectly infringes on a fundamental right, the inflexibility of the tiered framework prevents a full understanding of the clash between individual and governmental interests.”

Instead, New Jersey courts weigh the governmental interest in the statutory classification against the interests of the affected class. “In striking the balance, we have considered the nature of the affected right, the extent to which the governmental restriction intrudes upon it, and the public need for the restriction,” the Planned Parenthood court continued. The court has also at times questioned the usefulness and practicality of distinguishing between “fundamental” rights and other rights. Thus, where an important personal right, even if not expressly or impliedly contained in the text of the constitution, is affected by governmental action, the New Jersey Supreme Court often requires the public authority to demonstrate a greater “public need” than is traditionally required in construing the federal constitution.

New Jersey’s balancing approach shifts the affirmative burden to the state to justify the restriction it imposes, especially in cases where, under federal rational basis analysis, the government can usually safely rely upon the heavy presumption of constitutionality and leave to the challenger the virtually impossible task of establishing the absence of a rational basis.

Privacy Interests

The text of New Jersey’s constitutional protection against unreasonable searches and seizures is almost identical to the federal Fourth Amendment. Yet in a number of cases the New Jersey Supreme Court has construed it to provide greater protections than its federal counterpart, often by taking a more practical approach in defining modern expectations of privacy. In 1990’s State v. Hempele, for example, the court found that there is a reasonable expectation of privacy in garbage, despite a contrary ruling from the U.S. Supreme Court that people lose any reasonable expectation of privacy in their trash by leaving it in bags alongside the street. “The accessibility of garbage to outsiders . . . is not dispositive, because a person can maintain a privacy interest in something that is not completely invulnerable to prying eyes,” the Hunt court noted, saying the New Jersey Constitution “would protect only that which is under lock-and-key.”

New Jersey has been consistently more strict than the U.S. Supreme Court in enforcing the warrant requirement. New Jersey is one of a small minority of jurisdictions in the country requiring the state to prove, as a precondition to the validity of a consent search, that a person have knowledge of his right to refuse to give consent. In 2002’s State v. Carty the court found that even in the case of a voluntary consent search of an automobile, law enforcement must first establish a reasonable suspicion of criminal wrongdoing before seeking such consent. Noting the inherently coercive nature of being asked for consent during a traffic stop, Carty found that the “reasonable and articulable suspicion standard is derived from the New Jersey Constitution and serves the prophylactic purpose of preventing the police from turning routine traffic stops into a fishing expedition for criminal activity unrelated to the lawful stop.” In State v. Novembrino, perhaps the most marked departure from federal criminal procedure, the court rejected the creation of a “good faith” exception to the exclusionary rule if the police officer reasonably relied on a warrant that was issued without probable cause. 

Amendments

The 1947 constitution is comparatively difficult to amend and requires either a three-fifths vote of each house of the legislature in one session or a simple majority vote of each house in two successive sessions of the legislature before any proposed amendment is put before voters for approval by simple majority of votes. The most recent amendment in 2021 legalized the production and use of cannabis and established a related regulatory scheme. A 2017 amendment revised the provisions on bail which paved the way towards significant reform in the New Jersey pretrial release system that substantially reduced the use of monetary bail in favor of non-monetary conditions, thereby lowering the number of pretrial detainees held for relatively low-level offenses due to failure to pay bail.

In 2013, a constitutional amendment rather than ordinary legislation was used to establish a minimum wage in New Jersey. Different political parties controlled the executive and legislative branches, and a constitutional amendment was used to bypass the requirement of presentment of an ordinary bill to the governor, who would have likely vetoed it. The state constitution was also used to regulate gambling, an issue that has never been wholly entrusted to the legislative oversight. The 1947 constitution contains specific, and at times exhaustive, provisions on horse racing, bingo, and casino gambling in Atlantic City. It was amended in 2011 to permit sports betting on non-New Jersey professional, college, or amateur athletic events.

This use of the state constitution to adopt substantive policy normally left to the ordinary lawmaking process is the topic of debate. But there is no reason to predict that such use will become routine, which might risk dilution of its core mission to provide a neutral structure for good governance and protection of individual rights without becoming a common tool of partisan politics. In this regard, the 1947 New Jersey Constitution has admirably established a model as one of the strongest state constitutions in the country.

Ronald Chen is University Professor and Distinguished Professor of Law at Rutgers Law School.

Suggested Citation: Ronald Chen, The New Jersey Constitution: A Tool of Good Governance, Not Partisan Politics, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (Aug. 8, 2025), https://statecourtreport.org/our-work/analysis-opinion/new-jersey-constitution-tool-good-governance-not-partisan-politics