Shadowed by its powerful neighbors to the north and west, New Jersey settled into a multiplicity of residential communities. The people of New Jersey, following in the footsteps of their revolutionary predecessors, jealously protect their rule from home against incursions of the larger realm. With a legislature historically dominated by municipal and county bosses, the judiciary has stepped into the political fray to guard the “general welfare” of the state as a whole. Nowhere has this had so great an impact as in education. New Jersey schools have become well financed and are nationally acclaimed for student achievement. Urban, minority schools are funded on parity with the schools in the most affluent suburbs. Turnaround educational visionaries in failing schools with expertise in the law and regulations can close the achievement gap and build a successful school.

I. New Jersey Political Roots

A. One Acre-One Vote

Real estate is king in New Jersey. The rule of New Jersey real estate can be traced to 1702 when the proprietors of East Jersey and West Jersey agreed to equal representation a General Assembly, despite their disparate population, in becoming a single royal colony rather than being swallowed up into New York and Pennsylvania respectively. Every parcel of land was accounted for by that early date with no land for the cities to expand into short of annexation of neighboring towns. Municipal boundaries were set in stone for purposes of consolidation, but flexible enough for more fragmentation. The Constitutional Convention of 1947 was forbidden to interfere with them.

Each county regardless of population in early New Jersey had one representative in the Governor’s council. This arrangement continued in the Senate after the revolution until 1966. Counties were also controlled by the next smaller political units. They were run by the Chosen Freeholders, one chosen by each township and borough in the county, allowing many smaller units with less people to outvote the representatives of consolidated more populous areas. The New Jersey Plan of representation by political unit was introduced at the United States Constitutional convention in the form of equal representation by the states in Congress. The Connecticut Compromise, or the Great Compromise between the New Jersey Plan and the Virginia Plan of representation by population resulted in our present bicameral Congress.

The state is broken into countless little political fiefdoms. Institutional realities prevent the establishment a statewide interest. The state has only one great city newspaper and not a single commercial television station. Without mass media to galvanize public opinion in the state, state leaders are occupied with the concerns of special interest. With twenty-one counties each equally represented in the Senate until relatively recently, eleven senators from the southern part of the state representing just twenty percent of the people historically held control over the state. The southern part of the state continues to hold disproportionate power.

The state executive, representing the whole state, originally had little power. The constitution of 1776 provided that legislature “by a majority of votes, elect some fit person within the Colony, to be Governor for one year.”¹ The members of the Supreme Court were also appointed by the legislature. The constitution of 1844 left most power in the legislature, members of which often served some position in local or county government. It eliminated legislative appointments and provided for an elected governor with the power to appoint judges and to appoint executive officials with the advice and consent of the Senate. This led to the practice of senatorial courtesy, in which the Senate would not confirm an appointee if the senator from his county objected. Today, with senate districts crossing county lines, nominees often have to gain the approval of two senators.

As long as the legislature dominated the state, New Jersey was not a state, but a collection of municipalities and counties. The politics of the county were the politics of the state. This was supposed to change with the 1947 constitution creating the strongest governor in the nation—empowered with the conditional and line item vetoes—but the state could not escape its history. “Political decisions driven by socio-economic-political considerations of times long past have paralyzed and frustrated the ability of future generations to make intelligent or even rational policy choices.”²

B. Reform

Despite the retention of rules such as senatorial courtesy, the 1947 constitution brought reform. In the early period after the new constitution, the governor, as chief executive of the state bureaucracy, had an upper hand over the legislature. This changed after the creation of the Office of Legislative Services in 1986, bringing a large professional staff into the legislature. The legislative staff grew from only nine professionals, mostly assisting committee chairs, in 1968 to a full service staff of 350 employees in 2007.

Before 1947, the judiciary was an unstable hodge-podge of different kinds of courts, a museum piece of early common law pleadings in which plaintiffs would shop venues to their advantage. The county party chairs determined who became a judge. Today, the state bar association makes recommendations for judgeships and the governor generally adheres to its advice. The New Jersey court system is among the most streamlined, modern and organizationally coherent judiciaries in the nation and the Supreme Court is one of the most prominent state high courts. The Supreme Court and not the legislature has plenary power over making rules for the courts.³ The management duties of county assignment judges and other judicial personnel flow from the Chief Justice, subordinate to his office, analogous to that of a chief executive.

The Supreme Court traditionally holds a 4-3 balance between the two parties, regardless of the party of the governor. The 4-3 balance, senatorial courtesy and automatic tenure, have maintained the independence of the New Jersey courts and have prevented governors from packing them with judges of their own ideology.

C. Home Rule

Home rule is important in New Jersey, “a state governed by 566 municipalities.”⁴ The state has so many towns that “the state’s population in 1967 was 26 times larger than it was in 1810, the average municipal population was only 2.5 times larger.”⁵ The home rule tradition reserves as much responsibility as possible to local government, which is accountable to residents in the Jeffersonian tradition of the most responsive level of government. Local government, and so many of them, becomes a farm system for state office, creates an opportunity for minorities to acquire power, and give a sense of place for individuals in the quintessentially American tradition.

Home rule in New Jersey education means the right of residents to determine the amount of resources for their local schools through voting on school budgets. Only four states allow voters to determine school spending and New Jersey is one of them. This explains the multiplicity of 600 separate districts, a large number of which have less than five hundred students. Texas has twice the population and over thirty-four times the area, but has only 188 districts.

The legal rule in New Jersey, as in every state, is that municipalities “have no power other than those delegated to them by the Legislature and by our State Constitution. The State may withhold from or grant a[ny] given power to a municipality.” ⁶ American states, by contrast, are sovereign entities, not departments of the federal government. A “municipality is merely a department of the State.”⁷ That is the rule. The reality-in-fact, however, was best articulated by Chief Justice Cooley of Michigan 140 years ago. “First, that the constitution has been adopted in view of a system of local government . . . existing from the very earliest settlement of the country, never for a moment suspended or displaced, and the continued existence of which is assumed; and, second, that the liberties of the people have generally been supposed to spring from, and be dependent upon that system.” ⁸

Home rule was expressed in the “1851 statute, which gave school districts unlimited taxing power, set[ting] in motion a trend which New Jersey retains to the present day; i.e., school financial support in New Jersey became predominantly a local responsibility.”⁹ Ever since, travelers in the state have become familiar with the city limits sign saying, “We welcome your business,” meaning exactly that, we want your business—not your children. No one wants to pay for other people’s kids. “The paradigm of the perfect ratable generates a lot of tax revenue, generates no traffic or pollution, and most importantly generates no school aged children.” ¹⁰

D. Multiplicity of Municipalities

Home rule and the multiplicity of municipalities bring redundant expense. Property taxes in New Jersey are “double the national per-capita average” ¹¹ This makes for the highest overall taxation in the nation. Add the amount that the average homeowner pays for the “property tax to income tax and sales taxes, factor in all the nuisance taxes and fees for services, and the reality is that New Jersey, with its complex and convoluted system, leads the nation.”¹²

Even though everyone talks about the multiplicity of New Jersey municipalities and school districts, little consolidation takes place. On the contrary, as “the rest of the country saw a massive wave of consolidations, New Jersey, with its home rule tradition, increased the number of school districts.”¹³ The multiplicity of political units gives residents identity. The rank and file local officials enjoy their positions with broad public support. They enhance access to government and are “friends” that help when someone needs something done. It brings to mind the spoils system under Andrew Jackson: the more people you can give a government job, the better. Nonetheless, it is a very inefficient system. Each police chief for each small town makes about $100,000. Each has an office with secretaries. Yet the towns refuse to merge. “The system is complex, counterproductive, wasteful of land resources and more—and virtually fossilized.”¹⁴

E. The Neglect of the Cities

The distribution of power into local political units and the failure to establish statewide interests has been devastating to the cities. Power in real estate rather than in population was to the detriment of the urban areas. If you look at the right bank of the Hudson on an ordinary highway map of New Jersey, you notice Union City, Jersey City, and Newark. These cities never developed into world centers of trade like their big sister across the river due to neglect and unfavorable treatment by the state.

The legislature sold development rights along the river to the railroads. Dominated by rural interests, it granted the railroads riparian rights to dump garbage from New York City along the whole waterfront in Jersey City, the right bank of the mighty Hudson. This blocked all development of the harbor. The railroads were granted the right to build their tracks without regard to the welfare of the city and prevented Jersey City from any railroad tax revenue. By the time the first Railroad Tax Act was passed in 1873, the railroads owned 25 to 33 percent of the usable land in Jersey City. Years of litigation and legislation brought some local taxation, and restored some of the waterfront rights to the state. The state sold the rights along the river to support education, but not exclusively for Jersey City schools, but to lessen the costs of education in other parts of the state.

The legislature further prevented the cities from developing by not allowing the big city banks to branch into other counties, preventing a large banking industry from developing. While the legislature allowed the great multi-national corporations such as Standard Oil of New Jersey, better known as Exxon, to become chartered in the state, pouring revenue into the state treasury, it did not insist on maintenance of home offices in the state, which would have probably located in the cities and provided revenue for them.

The cities were not going to be where the middle-class lived. The state transportation system crisscrossed the cities leaving slums under their elevated highways. Following the lead of Robert Moses in New York, a builder whose projects dwarfed those of the pharaohs and Caesars,¹⁵ New Jersey was to be dominated by the automobile and the purpose of its highway system was to get people into the suburbs. This, however, was no relief for the urban poor trying to escape the cities. The zoning powers prevented the proliferation of low-income housing in the multiplicity of municipalities. “It was not so easy for the city folk to move out to the suburbs. By the end of the 1920s, zoning and master plans protected suburbs from ‘infiltration’ by low-income urban workers.” ¹⁶

The roads created one of New Jersey’s great contributions to modern America, the strip mall. Rather than transforming the towns into urban centers, New Jersey attracted international businesses not to centralized areas, but into any of its hundreds of municipalities. Thousands of square miles of farms of forests have been transformed into tens of thousands of miles of roads from one town to the next for residents to go to work, go shopping, and to go to school, without ever driving into the city.

While the left bank of the Hudson and the right bank of the Delaware had considerable power in New York and Pennsylvania respectively, Jersey City, Newark and Camden did not have that kind of command in Trenton. They never became great river cities. They did not become world-class metropolises in their own right. They were to be forever shadowed by their neighbors, New York City and Philadelphia.

Endnotes