Knapp on the New Jersey Plan

Aaron T. Knapp, a visiting assistant professor at the Boston University School of Law, has posted The New Jersey Plan and the Structure of the American Union, forthcoming in the Georgetown Journal of Law and Public Policy 15 (2017):

The scholarly consensus says that of the constitutional plans which received consideration at the Federal Convention in 1787, the plan introduced by the Virginia delegation (the so-called “Virginia Plan”) exerted the greatest influence on the final document. The opposite judgment has befallen the plan for reform introduced by the New Jersey delegation in mid-June—the so-called New Jersey Plan. Citing the nationalists’ tirades against it, its purportedly backward-looking provisions, and the delegates’ ultimate vote to table it on June 19, scholars have all but relegated the New Jersey Plan to the ash heap of history.

This article challenges the cutting-room floor narrative surrounding the New Jersey Plan. It demonstrates that, notwithstanding the June 19 vote, the New Jersey Plan’s core tenets went on to shape the fundamental structure of the American union as memorialized in the Constitution to a much greater degree than scholars have recognized. Its influence on the Constitution breaks down into three primary components, analyzed respectively in Parts I, II, and III. First, introduction of the New Jersey Plan effectuated a shift in the proposed constitutional order whereby the “national” government envisaged by the Virginia Plan became a “federal” one that preserved the sovereignties of the several states. Second, provisions from the New Jersey Plan that the delegates later reincorporated into the Constitution, deserve primary credit for constitutionalizing judicial review of legislation. Finally, the New Jersey Plan significantly influenced the Committee of Detail’s determination to replace the government with unenumerated police powers proposed by the Virginia Plan, with a government of defined powers.

In short, arguably the Constitution’s most distinctive structural features came from the New Jersey Plan and not the Virginia Plan. Yet the New Jersey Plan’s influence on the American constitutional order did not terminate with the signing of the Constitution in September 1787. Concluding remarks show that during the ratification debates and in the decade or so after ratification, early Americans placed enduring constructions on the Constitution that reflected the core principles underlying the New Jersey Plan, even where the Constitution’s text counseled a contrary result.