THE GOVERNOR’S COMMITTEE ON PREPARATORY RESEARCH FOR THE New Jersey Constitutional Convention
THE LEGISLATURE – QUALIFICATIONS, TERM, AND COMPENSATION OF LEGISLATORS; SESSIONS, ORGANIZATION AND PROCEDURE
by William Miller
Research Director, Princeton Surveys
Lecturer in Politics, Princeton University
Introduction
American state legislatures and legislative processes have been intensively studied by scholars and by legislative bodies themselves, but there is little agreement as to what specific constitutional provisions can either make or discourage good legislatures.1 A concise review of the various aspects of the problem may be found in The Annals, Vol. 195, “Our State Legislators” (Jan., 1938). There are several preliminary considerations, however, upon which current study of the New Jersey Constitution must necessarily be premised:
1) Nature of constitutional specifications: American state constitutions generally set up legislative bodies with what are known as parlimentary powers. By this is meant that the legislature, in the absence of any specific restriction in the constitution by which it is established, has all powers of government which are not precluded by the Federal Constitution. In practical effect, this means that when a question of a power of the legislature arises, it is unnecessary to find a specific grant of the power in question in the constitution; if there is no prohibition, then the power exists. It is this characteristic of legislative power which has lead to description of state constitutions as documents of limitation and not of grant. This concept is succinctly stated by Chancellor Walker in Hudspeth v Swayze:2 85 N. J. L. 592, 601 (1913).
“The only restraints upon the exercise of the legislative prerogative are those expressly or impliedly contained in the Federal and State Constitutions and those immutable principles which lie at the very foundation of sovereignty.”
In the same case, Chancellor Walker goes on to quote one of Justice Holmes’ distinguished dissenting opinions, then as a justice of the highest court of Massachusetts, on the matter of legislative power under state constitutions:3 Opinions of the Justices, 160 Mass. 586, 36 N. E. 488 (1894).
“I admit that the constitution establishes a representative government, not a pure democracy. It establishes a general court (the legislature) which is to be the law-making power. But the question is whether it puts a limit upon the power of that body to make laws. In my opinion the legislature has the whole law-making power except so far as the words
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