The state constitution was a mess.

   It was old, and it had created a muddled executive branch, an inefficient court system and an unfairly elected legislature. The state wasn’t Alabama, where some lawmakers are mulling over a constitutional convention to update the state’s nearly century-old fundamental law.

   It was New Jersey, governed by a similarly creaky constitution. In 1947, the state held a 12-week convention and wrote a new constitution for the first time since 1844.

   “At that point, the constitution was 103 years old, and it really was out of date,” said Maxine Lurie, a professor of history at New Jersey’s Seton Hall University.

   “Especially, the legal system was described as the most complicated in the English-speaking world. It went back to the Colonial period.” Howard Green of the New Jersey Historical Commission said the 1947 convention fixed that problem, as well as ended the state’s history of having a very weak governor.

   “New Jersey also got a very powerful governor modeled on the idea of the CEO of a corporation,” Green said.

   Another state that successfully updated its constitution is Michigan, which had its most recent constitutional convention in 1961.

   Like New Jersey residents, Michigan voters wanted to revamp their tangled and outdated executive and judicial branches.

New Jersey: constitution on the quick

   New Jersey’s first constitution was written in haste because state leaders had other things on their minds, chiefly the British, who were attacking. The year was 1776.

  That constitution was written so quickly that it was actually pretty progressive. It allowed blacks and women to vote if they owned enough property (an oversight that was later changed by the state Legislature).

   “Historians disagree about why that happened,” Lurie said. “Most people, including me, think it was just an accident.”

   The original constitution, written at the height of revolutionary fervor, created a very weak governorship because the new country, having fought a king, feared strong executive control.

   The New Jersey Constitution was revised in 1844, but that was still only 70 years after the revolution, so the governor’s job remained weak. Governors could serve only three-year terms, could not succeed themselves and could have their votes overridden by a simple majority of the Legislature.

   In 1844, New Jersey had its own version of an Alabama Big Mule, as former Gov. “Big Jim” Folsom called the powerful companies that have long wielded power in Montgomery.

   New Jersey was basically controlled by Joint Companies, a transportation company that consisted of two subsidiaries, the Camden and Amboy Railroad and the Delaware and Raritan Canal company. The railroad had a monopoly on the high-traffic New York-to-Philadelphia route. “For 30 crucial years, this company had a vice grip on everything that happens,” Green said. “They were the most powerful players in the state. All the governors came either from their officers’ ranks or (had) their approval.”

   The state was able to break that hold when the company merged with an out-of-state railroad. But the bigger problems of the constitution remained - the weak governorship, complicated court system and unfairly apportioned Legislature.

   The Legislature was divided into two houses, Green said. The upper one allowed one senator from each county, which increased the power of small counties.

   Small counties didn’t want to give that up, so the efforts to write a new constitution were stalled until state leaders decided to leave the Legislature alone and concentrate on the executive and judicial branches.

   “It’s a classic textbook case of American politics,” Green said. “They had a number of pressing problems, they couldn’t get them all done at once, they picked off two of the three and left the other to be done another day.”

   The convention delegates did a nice job on the two problems they fixed, Green said.

   The governor went from being very weak to becoming the only officer elected statewide in New Jersey. That has attracted good politicians, some of whom - including current Gov. Christie Whitman - have become national figures. The governor also got the line-item veto.

   The state court system was also streamlined, becoming “a model and envy of other states,” Green said.

   The Legislature limped along for nearly another two decades, until the U.S. Supreme Court ruled in the 1960s that such legislatures had to be apportioned on a one-person, one-vote basis.

Michigan Constitution: a work in progress

   Michigan voters consider revamping their constitution fairly often - the 1850 version of that state’s constitution automatically puts the issue of whether to call a constitutional convention on the ballot every 16 years.

   In 1961, the issue was modernizing the state’s executive and judicial branches, said Bob LaBrant, senior vice president of the Michigan Chamber of Commerce.

   On the judicial side, there was no intermediate court of appeals, so cases went directly from the trial court to the state Supreme Court. On the executive side, there were hundreds of boards and commissions that weakened an already weak governor, who was limited to two-year terms.

   “There was this feeling that we needed to streamline at least the executive branch of state government,” LaBrant said.

   They did that, as well as the judicial branch.

   The governor got four-year terms, the governor and lieutenant governor were combined as a single team for elections, and most commissions and boards were eliminated.

   Michigan also got a district court system rather than the old justices of the peace, as well as an intermediate appellate court. The constitution also allowed a state income tax for the first time, but mandated that it be levied as a flat tax, not a graduated tax based on income. The state’s income tax is 4.2 percent.

   The 1961 constitution, written during a nearly 20-week convention, replaced the state’s 1908 version.

   Voters almost rejected it. Republicans won most of the votes to elect delegates to the convention. Then, many Democrats opposed the new constitution, as did the automobile unions.

   In the end, the constitution was approved by fewer than 10,000 votes, LaBrant said.

   Now, “Most people think what they came up with was a pretty good product,” he said.

   Michigan voters will vote again in 2010 on whether to try to write another constitution.

   Robert Sedler, a professor of constitutional law at Detroit’s Wayne State University law school, said state constitutions, unlike the federal document, tend to get very detailed and cluttered. “As a result, they become obsolete and difficult to interpret,” Sedler said. “This is why state constitutions tend to be amended a lot.”

   He predicted Alabama officials attempting to overhaul their state’s constitution will have a harder time than did their Michigan counterparts, because the document has been around for nearly a century.

   “There has been such a long period, the Alabama Constitution that’s going to emerge will change things very much,” Sedler said.

Return to: A State Buried in Paper, Introduction

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Reprinted with Permission from TheHuntsville Times.