Friday, June 30, 2017

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.


Shag from Brookline said...

I plan to read the article in the next day or so as I am intrigued by the claim in the second paragraph of the abstract that the New Jersey Plan:

" ... deserve[s] primary credit for constitutionalizing judicial review of legislation."

as neither Article III nor any other provision in the 1787 Constitution specifically references "judicial review."

Shag from Brookline said...

I read the section of the article on the matter I raised and it is well done. [With my eyesight limitations, articles like this with a table of contents are appreciated.] There are constitutional scholars today, as well as in the past, who have questioned the Court on "judicial review," which has a special definition that is not expressly set forth in Article III or any other portion of the Constitution. The Supremacy Clause, which can be sourced to the New Jersey Plan, does provide for the supremacy of federal laws, including the Constitution and decisions of the Court, over the states' laws that conflict with federal laws. Such federal laws must of course be constitutional. The Court comes into play in its determination of whether a federal law comports with the Constitution. But the Supremacy Clause in conjunction with Article III does not specifically provide for judicial supremacy over the federal Executive and Legislative branches in the manner of judicial supremacy over the states.

I plan to read the entire article. From what I did read, it redeems my fond memories of New Jersey pre-Gov. Chris Christie. From what I've read so far, the article provides a lot of interesting history of the Convention.