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69 Alb. L. Rev. 553 (2005-2006)
The New Jersey Constitution: Positive Rights, Common Law Entitlements, and State Action

handle is hein.journals/albany69 and id is 577 raw text is: THE NEW JERSEY CONSTITUTION: POSITIVE RIGHTS, COMMON LAW ENTITLEMENTS, AND STATE ACTION Helen Hershkoff* During the last half of the twentieth century, the New Jersey Supreme Court built an impressive reputation for its intellectually rigorous and forcefully progressive interpretations of state constitutional law.' The court's status as a jurisprudential entrepreneur rests, in part, on decisions that involve social and economic life-most notably, its enforcement of the positive right to an adequate education.2 However, the court's commitment to material well-being has not stopped at the border of state action. In contrast to federal doctrine,3 the New Jersey Supreme Court has shown a willingness to reconfigure contract and property rights in light of public policies that emanate from state constitutional norms. These cases, involving such issues as whether private property owners can bar leafleting, protect rights that typically are not enforceable against non-government actors and so usually are trumped by common law entitlements. In this Essay, I draw a connection among the New Jersey Supreme Court's treatment of * Member, Professional Board of Editors, State Constitutional Commentary; Professor of Law and Co-director, Arthur Garfield Hays Civil Liberties Program, New York University School of Law. I am grateful to Stephen Loffredo and Robert F. Williams for their comments on an earlier version of this Essay. 1 Gerald J. Russello, The New Jersey Supreme Court: New Directions?, 16 ST. JOHN'S J. LEGAL COMMENT. 655, 655 (2002); see Stewart G. Pollock, Foreword: Celebrating Fifty Years of Judicial Reform Under the 1947 New Jersey Constitution, 29 RUTGERS L.J. 675, 676 (1998) (After half a century, the New Jersey Judiciary still leads the nation.); see also Bernard K. Freamon, The Origins of the Anti-Segregation Clause in the New Jersey Constitution, 35 RUTGERS L.J. 1267, 1268 (2004) (calling the New Jersey Constitution a model and a beacon for other state constitutions and for young post-colonial nations seeking to form sound and reliable constitutional orders). 2 See Paul L. Tractenberg, The Evolution and Implementation of Educational Rights Under the New Jersey Constitution of 1947, 29 RUTGERS L.J. 827, 839, 841-42 (1998). The concept of jurisprudential entrepreneurship refers to a court generating an independent interpretive approach to state law issues that influences other courts on a national level. Helen Hershkoff, Positive Rights and State Constitutions: The Limits of Federal Rationality Review, 112 HARV. L. REV. 1131, 1140-41 (1999). ' See generally Helen Hershkoff, State Constitutions: A National Perspective, 3 WIDENER J. PUB. L. 7, 20-21 (1993) (comparing the federal state action doctrine with that of several states).

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