The New Jersey constitution: positive rights, common law entitlements, and state action.

• Author: Hershkoff, Helen

During the last half of the twentieth century, the New Jersey Supreme Court built an impressive reputation for its "intellectually rigorous and forcefully progressive" interpretations of state constitutional law. (1) The court's status as a jurisprudential entrepreneur rests, in part, on decisions that involve social and economic life--most notably, its enforcement of the positive right to an adequate education. (2) However, the court's commitment to material well-being has not stopped at the border of state action. In contrast to federal doctrine, (3) the New Jersey Supreme Court has shown a willingness to reconfigure contract and property rights in light of public policies that emanate from state constitutional norms. These cases, involving such issues as whether private property owners can bar leafleting, protect rights that typically are not enforceable against non-government actors and so usually are trumped by common law entitlements. In this Essay, I draw a connection among the New Jersey Supreme Court's treatment of social and economic rights, its departure from federal state action doctrine, and its reconfiguration of common law entitlements as a special feature of its state constitutional practice.

The New Jersey Supreme Court's commitment to social and economic well-being can be seen in its willingness to interpret and to enforce social welfare claims that often are regarded as nonjusticiable. (4) Some of these claims are grounded in the text of the New Jersey Constitution, which provides the source for positive rights that are said to be absent from the Federal Constitution. (5) The state constitution's education clause is best known; article VIII, section 4 commits the legislature to "provide for the maintenance and support of a thorough and efficient system of free public schools" (6) and the court has interpreted this right to require the redistribution of public funds from one school district to another if needed to secure an adequate education for the state's children. (7) In addition, the New Jersey Constitution grants private employees the right to "organize and bargain collectively." (8) Not all important social welfare rights are enumerated in the New Jersey text. For example, the state constitution lacks an explicit right to public assistance or to shelter. (9) Yet the New Jersey Supreme Court, finding that "homelessness represents something uniquely devastating to the human spirit," has refused to accept a twelvemonth limit on rent subsidies imposed by state law. (10) Moreover, the court has held that the state's failure to provide Medicaid funding for abortions, other than when medically necessary to save the mother's life, violates the New Jersey Constitution. (11) In these decisions, the court scrutinizes government inaction as well as action in order to effectuate the provision of socially essential goods. (12)

The New Jersey Supreme Court's commitment to social and economic concerns goes beyond the boundary of government action. Not only does the court conceive of government as a provider of important goods and services, but also it appreciates the modern role of the "activist state" as a regulator of the private sector. (13) A notable example is the court's treatment of racial segregation that is alleged to be caused by market conditions. Unlike the Federal Constitution, the New Jersey Constitution contains an anti-segregation clause which the New Jersey Supreme Court has interpreted as mandating a "constitutional imperative" against segregation: "'[w]hether due to an official action, or simply segregation in fact, our public policy applies with equal force against the continuation of segregation in our schools.'" (14) Rather than leave the achievement of racial equality to the vicissitudes of private preference, the New Jersey Supreme Court has refused to acquiesce in market conditions that exacerbate racial segregation. Similarly, the court has drawn on the public policy emanating from the New Jersey Constitution to grant privacy rights to private employees. (15)

In other doctrinal areas, the court likewise has...