Now that Gov. Chris Christie has conditionally vetoed a bill that would increase the minimum wage and tie it to the Consumer Price Index, some legislators propose — rather than trying to override the veto or to acquiesce in the governor’s suggestions — that the measure be a part of the state constitution.
There are a number of possible motivations. One is that inclusion in the state constitution makes a matter more permanent and removes it from legislative discretion. Another is that it bypasses the governor’s veto power, since a joint resolution for a constitutional amendment does not go to his desk.
In some states, other motivations have been apparent to constitutionalize policies that legislatures refuse to enact. Florida’s constitution, for example, contains detailed specifications for fishing nets and the humane treatment of pregnant pigs — policy matters that failed in its legislature.
Still other motivations are to overturn judicial interpretations of state constitutional provisions — as has happened several times in New Jersey — or simply to eliminate doubt about the constitutionality of policies that may be proposed in the future. Again, we are talking here about policies that could be treated by ordinary statutory law rather than state constitutional provisions.
State constitutions have swelled over the years to include a very wide variety of such policy matters, in addition to what are generally considered core or fundamental constitutional government structures and rights guarantees. This is because state constitutions are generally easier to amend than the federal constitution, and for that reason each generation’s views of important policies have been, sometimes, entrenched in the state constitution rather than enacted by ordinary legislation. Political scientist Christopher Hammons has concluded that the average state constitution contains about 40 percent of these policy provisions — sometimes referred to as constitutional legislation — in contrast to fundamental constitutional provisions. Interestingly, however, he found that New Jersey’s constitution includes only about 14 percent of such provisions. Thus, it appears that over the years we in New Jersey have been less inclined to use the state constitution as a tool of lawmaking or policy-making than those in other states.
In considering whether to constitutionalize any particular policy, therefore, we should consider two separate questions. First, do we favor the particular policy being proposed? In the current minimum wage situation, there are actually two basic policy elements to the question: (1) do we want to raise the minimum wage and (2) do we want to tie it to the Consumer Price Index in the future? Consideration of these questions is one thing in the context of a statutory proposal. It is a different thing in the context of the proposed constitutional amendment. Here, the second important question must be asked: Even if you agree with the policy recommendations, should they be entrenched in the state constitution? In this latter context, the question is whether there is a risk in a more rigid state constitutional provision that may prove difficult to change in the face of unanticipated consequences. That risk must be weighed against the benefits of the policy itself.
There are those who view the matter of a minimum wage for working people in New Jersey, who now toil for an effective hourly rate of around $6 after years of legislative inaction, as important enough to be constitutionalized and thereby removed from legislative discretion. Some argue that it is so important for the minimum wage to keep pace with inflation that it should be indexed in the state constitution. Several states have already used their constitutions to establish a minimum wage and to index it for inflation.
We are not of that view. On balance, we adhere to our often-stated belief that the state constitution should not be used as a mechanism for the enactment of matters that are admittedly within the competence of our legislative branch.