For half a century now, New Jersey has been home to the most activist state appellate court in America. Lauded by proponents of “living” constitutions who urge courts to make policy instead of interpret the law as written, the New Jersey Supreme Court has profoundly transformed the Garden State by seizing control of school funding, hijacking zoning powers from towns and cities to increase subsidized housing, and nullifying taxpayer protections in the state constitution. Its undemocratic actions have blown apart the state’s finances and led to ill-conceived and ineffective policies. If you want to understand what rule by liberal judges looks like on the state level, you need only look at New Jersey, which is teetering on bankruptcy though it remains one of America’s wealthiest states.
Malanga goes on to discuss these three areas of court intrusion that he argues it doesn't belong. But as I have argued before, one must drill down deeper to understand reasons for the court's actions. I've left the following comments:
Mike LaFerrara February 15, 2012 at 10:45 PM
The “living constitution” doctrine has long been a tool of statists for making an end run around the Founding principles that center on individual rights. But there is more to it than that.
Mr. Malanga states that “In short, the Supreme Court seized power in education policy.”
No, it didn’t. I argue that the NJ State constitution’s “thorough and efficient” clause, enacted through the “democratic” process, empowered the court. All it took was a savvy former governor to recognize and exercise it.
That clause dates back to 1873. Hughes understood its meaning and discovered how to use it. Article VIII, section 4 empowers the courts, which must uphold the constitution. As I understand it, that clause gives the court the reigns over the legislature in one way or another.
In fact, in its educational rulings, the court actually did “interpret the law as written.” The state constitution reads: “The legislature shall provide for the maintenance and support of a thorough and efficient system of free public schools…” What if it doesn’t, according to the justices’ interpretation of that vague clause? The state is then in violation of constitutional law. The court is now faced with an impossible dilemma. It must either neglect its duty to uphold the constitution, or usurp the proper function of another branch of government.
The elephant in the room that few seem to want to confront is that the only solution to the court’s “massive redistribution of wealth” is to get rid of the constitutional mandate for state provision of the schools. It’s a daunting task, to be sure. But to find the philosophical unpinning for repeal, look no further than America’s Founding principles. The proper purpose of government is not to provide an education (or any material product or service, which by definition requires the redistribution of wealth). It is to protect individual rights, which includes the rights of parents to educate their children with their own resources as they see fit. Government-run schools violate everyone’s rights in two ways: They force people to pay for the education of other people’s children, and they put government in charge of what is taught, how it is taught, and who should pay for it.
The courts affordable housing mandates are also rooted in the violation of individual rights; the extraordinary powers of local zoning boards over private land use. For decades, town zoning boards routinely practiced “exclusionary” zoning, violating the rights of property owners, developers, and housing consumers to contract freely and voluntarily.
In 1970, Mount Laurel zoning ordinances forbade the African Methodist Episcopalian church from building a 36 unit apartment complex in the town. The state Supreme Court saw exclusionary zoning (which it was), and issued the decision that led to COAH. In doing so, it correctly identified the problem – local zoning regulations – but then proceeded to compound rather than solve the problem. The question that should have been asked and answered was: Why should any central planning authority have the power to stop the African Methodist Episcopalian congregation, or any property owner, from building what they please on their own land? The issue is not who should impose housing quotas, but the legitimacy of zoning powers as such.
If the court had used individual rights rather than the vague “general welfare of the Jersey population” as the standard, it could have arrived at the correct decision; to reign in the zoning boards, and restrict them to protecting everyone’s individual rights, including mediating legitimate disputes between developers and local residents, rather than dictate private property usage. Instead, the court granted override powers to the state to correct what it considered local zoning abuses. This simply shifted central planning abuses to the state level. Instead, it should have overturned those powers at the local level, thus liberating the housing market.
There are few problems that can’t be solved by returning to America’s Founding principles of individual rights and limited, rights-protecting government.
For more on this topic, see my previous posts:
Christie's "War on the Court"
New Jersey's Constitutional Roadblock to Reform
COAH, Mt. Laurel, and Fines For Disaster Victims in New Jersey
NJ's "Affordable Housing Crisis" - It's the Zoning, Stupid!
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