THE GOVERNOR’S COMMITTEE ON PREPARATORY RESEARCH FOR THE New Jersey Constitutional Convention

THE BILL OF RIGHTS

3. Political Powers Article I, Paragraph 2

Source

As drafted by the Committee on a Bill of Rights and Privileges in the 1844 Convention, this paragraph included the words: “and to abolish one form of government, and establish another” before the word “whenever.” The phraseology was attacked as too broad, and it was pointed out that there was no right to substitute an autocracy or monarchy for a republic, because the United States Constitution charges the Federal Government with guaranteeing to every state a republican form of government.22 Proceedings, op. cit., p. 140. The reference is to U. S. Constitution, Art IV, sec. 4. With the criticized language deleted the paragraph was adopted upon the insistence of Delegate Moses Jaques, who believed the people were strongly in favor of it. “For my own part, I would not consider it safe to go home after voting to strike out this proposition. The people would pelt me with rotten eggs or brick bats, or anything they could lay their hands on.”23 Ibid, p. 141. He was defeated in an effort to include the thought that: “on entering into society, men give up none of their rights; they only adopt new modes, by which they are better secured.” The Convention felt that the words were too abstract and not true.24 Ibid, pp. 409 – 11.

The preamble of the New Jersey Constitution of 1776 enunciated the principle that “all the constitutional authority ever possessed by the kings of Great Britain … was, by compact, delivered from the people, and held of them for the common interest of the whole society. …” New Jersey thus early recognized that the state exists for man, not man for the state. Only three states fail to include a provision similar to Art. I, sec. 2 in their fundamental law.25 For comparable language see Missouri Constitution of 1945, Art. I, sec. 1: “That all political power is vested in and derived from the people, that all government of right originates from the people, is founded upon their will only, and is instituted solely for the good of the whole.”

Maryland Constitution, Art. 1: “That all Government of right originates from the People, is founded in compact only, and instituted solely for the good of the whole; and they have, at all times, the inalienable right to alter, reform or abolish their form of Government in such manner as they may deem expedient.”

Judicial Interpretation

One year after the adoption of the Constitution, the New Jersey Supreme Court described this paragraph as containing mere opinion without anything in the nature or form of enactment.26 State v Post, 20 N.J.L. 368, 375. It was held to be a corollary of the first paragraph and was intended only as a preamble to the other sections, all of which are in the form of command or prohibition. However, it was this provision that sustained the validity of the act of the Legislature which referred to a state-wide referendum the question of whether or not a legislative enactment should become operative and effective.27 Hudspeth v. Swayze, 85 N.J.L. 592. The very ques-

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