CHAIRMAN: Are there any other questions at this time? … Mr. Park.
MR. LAWRENCE N. PARK: Mr. Eisenberg, I believe that you told us that the substance of the due process language that is now incorporated in this draft is drawn basically from the 14th Amendment. I think that you told us correctly – I know that you did tell us correctly – that that is the supreme law of the land and binds New Jersey as well as any other place under the jurisdiction of the Constitution. But before we go into consideration of it, I would like to ask your opinion on this point:
Since the due process of law clause is already binding upon us and since Article I, paragraph 1, has been construed by our courts, to my knowledge, as being if not identical, at least substantially equivalent to the due process of law clause, what about this problem? Suppose that we have in New Jersey certain types of legislation which are called social legislation, which many of us approve and many do not, and it is alleged that this legislation is a violation of such due process. I suppose the persons that are against such a statute would raise the point that it’s violative of the due process clause, the 14th Amendment, and were your proposal to be adopted, it would also be violative of what you might call the second subdivision of the new section 5-A. So that you would therefore have two distinct, asserted grounds for invalidity.
Now, suppose the decision of our Court of Errors and Appeals, would be on the ground that the statute was as a matter of fact violative of such due process, and let us suppose the court were either explicit or vague on the question and ruled that the law violated both our Constitution and the Constitution of the United States. Is it not true we would then be estopped from having any further review by the United States Supreme Court on the point because the matter would have been disposed of by a ruling which would be adequate on non-federal grounds? I am quite confident – maybe I’m wrong – I am quiet confident that if that ruling were made, no one would have a right to go to the United States Supreme Court. Probably one couldn’t get there even by certiorari, because the Supreme Court would say the matter involved concerned our view on the subject of due process, rather than the 14th Amendment; the court would hold that the State of New Jersey says that it violates its own Constitution.
Now, don’t you feel that we are running an unnecessary risk, since we have nothing to gain by putting it in? Does it not close the avenues of finding an adjudication, especially when the statute is declared unconstitutional? We could have a situation such that in New Jersey one particular type of statute would be illegal and yet the Supreme Court of the United States might say, as far as it is con-
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