N.J. Constitutional Convention: Vol. 4, Page 318


STATE OF NEW JERSEY CONSTITUTIONAL CONVENTION OF 1947
COMMITTEE ON THE JUDICIARY
Tuesday, July 8, 1947 (Afternoon session)

Federal Constitution seems to be ideal, on the other hand, applying that simplicity in a state, in any state, seems to me not at all practical. If this thing that has been referred to as politics is to be with us on a national scope or a state scope, and it always will be, you have the protection in your federal system of the fact that you have in the United States Senate 96 Senators from 48 states; that no matter whether they are Republicans from Iowa or Republicans from New Jersey, they still have a different viewpoint, and you have a very high degree of statesmanship in the United States Senate no matter whether the predominant party is Republican or Democratic, as far as the welfare of the people is concerned. You don't have that in the state, whether that state be New Jersey or Missouri. You have in the states the possibility of one party controlling the legislature, which doesn't give the legislature too much power to do much on the judicial article, as I see it. Now, it wouldn't make any difference what party that was. Of course, today we have an enlightened public due to the press, radio and the communications, and a higher degree of intelligence. That wasn't true in 1844. And I don't think that any party would ever be in power that would write rules or regulations that would be detrimental to the greatest number of people. I can't conceive of that, but it's easier for the Federal Government to have a superfine system than it is for the State.

JUDGE SMITH: Well, we have just gone through the procedure of revising Title 28. That is our Judicial Code. I had the privilege of acting as one of the representatives of the Chief Justice - not on the committee but, I might say, as counsel there, as portecting the right of the courts as we saw it. The constitutional amendment has been, you might say, supplemented by Title 28. Most of its provisions have stood since, I think, 1789. That is a pretty fair test of Congress and, I think, any legislature. There is this about it - that changes are necessary in the administration of justice, not of substantive rules, because they seem to grow of themselves and frequently meet the needs of the times. As new problems arise the courts have sometimes been slow, but they have met the problems as they have arisen. Procedural problems, however, sometimes have not been as quickly met, and they can be more quickly met if the procedure is governed by statute rather than by Constitution. And whenever you place limitations in the Constitution that will require the submission of every change to the electorate you may run into difficulty. You may be able to persuade your legislators that a change is necessary, but it is more difficult to effect a change in the Constitution.

Now, I know exactly what you have in mind, but the provincialism that may exist in a state legislature may likewise exist in


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