Alaska, the Last Statehood Constitution, and Sub National Rights and Governance*

• Publication year: 2018

§ 35 Alaska L. Rev. 139. ALASKA, THE LAST STATEHOOD CONSTITUTION, AND SUB NATIONAL RIGHTS AND GOVERNANCE^[*]

Alaska Law Review
Volume 35, No. 2, December 2018
Cited: 35 Alaska L. Rev. 139

ALASKA, THE LAST STATEHOOD CONSTITUTION, AND SUB NATIONAL RIGHTS AND GOVERNANCE

[*]

ROBERT F. WILLIAMS

By being among the last states to write a constitution, we now have the advantages of correcting the mistakes of others, simplicity, and the delegation of responsibility, which can be clearly seen by our citizens. Rather than expressing details, as did the constitutions of many states, ours set broad goals for the new state of Alaska. Details would come later during the legislative process.

-Former Alaska Governor Tony Knowles ^[1]

One of the dismaying realities of American legal education, particularly at its most elite level, is the abject ignorance displayed about the importance of state constitutions and even of state judiciaries, even though most of the common law cases that students read arise in state courts. Still, too many students may well graduate from three years of legal study with the perception that the only Constitution operating within the United States is the national document and that the only courts one need really focus on are federal courts, particularly, of course, the United States Supreme Court.

-Professor Sanford Levinson ^[2]

I. INTRODUCTION

The editors of the Alaska Law Review are to be commended for taking the state constitution seriously. ^[3] This is, of course, nothing new because the Alaska Law Review has, since its inception, included important scholarship on the Alaska Constitution.

Alaska's 1955-56 Constitutional Convention was the penultimate step in a decades-long campaign for Alaskan statehood. ^[4] When Alaska finally gained its statehood, its state constitution took its place with the other forty-nine American subnational constitutions. While preparing the Alaska Constitution, delegates to Alaska's 1955-56 Constitutional Convention might well have echoed the words Delegate John Dickinson uttered at the beginning of the 1787 Federal Constitutional Convention: "Experience must be our only guide." ^[5] This theme of building on the experiences of other states ran throughout the production of the Alaska Constitution.

This Article will focus on the general characteristics of American state, or subnational, constitutions, ^[6] locating the Alaska Constitution within that state constitutional tradition rather than our federal constitutional tradition. This focus will include a brief discussion of "New Judicial Federalism," where state courts interpret their state constitutions to provide broader protective rights than those recognized by the United States Supreme Court under the Federal Constitution. I will then discuss specific characteristics of the Alaska Constitution and judicial interpretations of it, within the national context.

II. THE ALASKA CONSTITUTION AS A SUBNATIONAL CONSTITUTION

An article by my long-time Rutgers Political Science colleague, Alan Tarr, perceptively locates the current Alaska Constitution within its comparative "time and place." ^[7] Each of the constitutions of the non-original states is part of an epic story of that state's transition from colonial or territorial status to statehood. Consequently, as pointed out by former-Governor Knowles above, Alaskans had the benefit of these epic stories of virtually all of the other states. Alaskans could look to these states' experiences both with their initial constitutions and after their admissions to the Union as they continued to tinker with provisions on government structure, rights guarantees, and the entrenchment of policy matters in their state constitutions. ^[8] One recent analyst of Wisconsin's statehood constitution-making process stated:

Western state formation, even in its concrete form of constitutional conventions and founding texts, required a touch of fiction . . . . For the writing of a constitution necessitated that Wisconsin citizens imagine their state in its future life. In other words, they had to engage in a kind of (political) science fiction. ^[9]

The experiences of other states make this exercise in imagination easier, but not necessarily simple, for later-formed states like Alaska.

About half of the states in the United States were admitted to the Union pursuant to a congressional "enabling act." These enactments directed territories seeking statehood in a number of specific ways with respect to processes for drafting their proposed constitutions, and often required the inclusion of specific constitutional provisions. Alaska was not admitted pursuant to an enabling act, so it proceeded toward statehood without such advance direction. ^[10] Alaska was free from congressional requirements that could have had lasting effects on Alaska after joining the Union. ^[11] Despite this apparent independence, the Alaska Constitutional Convention seems to have limited itself by focusing on presenting a statehood constitution to Congress that would most easily lead to acceptance into the Union. ^[12] This focus often came at the expense of innovation in the constitution.

Alaska's decision not to innovate in its constitution was understandable in the context of its quest for statehood and desire to avoid congressional delay. However, it also illustrates a broader point about American state constitutions and, indeed, subnational constitutions worldwide. Our Federal Constitution leaves an expansive "subnational constitutional space," allowing states to innovate in the design of their state constitutions. ^[13] There are common variations in our state constitutions such as elected or appointed judiciaries, plural or single executives, differing rights guarantees, etc., but there are very few true innovations in state constitutions. Only one state has a unicameral legislature; ^[14] none have a parliamentary system. ^[15] The subnational constitutional space in other nations' federal constitutions is less expansive, but it is still underutilized, as in America. ^[16] Alaska's experience of choosing to forego innovation in favor of easier acceptance into the Union, provides one understandable reason for this phenomenon.

American state constitutions differ in many important respects from the more familiar Federal Constitution. Unlike the federal constitutional process, state constitutions and their amendments emanate directly from the people of the state through votes on new constitutions, revisions, and amendments. ^[17] This provides a constitutional interpretation technique that is not available in federal constitutional doctrine, where state constitutional provisions can be seen as the "voice of the people." This means that voters' pamphlets and guides, and even newspaper analyses can be relevant when interpreting the meaning of the state constitution. ^[18] In the words of the New Jersey Supreme Court:

It is a familiar rule of construction that where phraseology is precise and unambiguous there is no room for judicial interpretation or for resort to extrinsic materials. The language speaks for itself, and where found in our State Constitution the language is the voice of the people. As this Court said some twenty years ago,

[T]he Constitution derives its force, not from the Convention which framed it, but from the people who ratified it: and the intent to be arrived at is that of the people.

The Constitution was written "to be understood by the voters: its words and phrases were used in their normal and ordinary as distinguished from technical meaning"; and "where the intention is clear there is no room for construction and no excuse for interpolation or addition." ^[19]

State constitutions have evolved over the years to include policy matters and "positive rights" that can (and possibly should) be seen as more appropriate for statutory law. ^[20] Christopher Hammons formulated the distinction between "framework-oriented" and "policy-oriented" provisions in state constitutions, concluding that the national average was about forty percent policy-oriented. ^[21]

Furthermore, while the Federal Constitution enumerates powers for the federal government, the state constitutions operate within the plenary powers reserved to the states, where enumerations of power are unnecessary. As such, instead of delineating additional powers, state constitutions operate primarily as documents of limitation. ^[22] Additionally, state constitutions are much easier to amend than the Federal Constitution. Therefore, state constitutions have grown in length over the years, through additional constitutional conventions or the amendment process. ^[23]

Assessments of American constitutionalism rarely look to state constitutions, instead focusing exclusively on the Federal Constitution and its interpretation by the Supreme Court. Focusing on the Federal Constitution leads to the conclusion that America is "exceptional" when compared with other nations because of the static nature and absence of positive rights in the Federal Constitution. However, careful analysis has recently clarified the possible error of this point of view:

Our analysis reveals three important features of state constitutions that should prompt reconsideration of US constitutional exceptionalism. First, like most of the world's constitutions, state constitutions are rather long and elaborate, and they

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