The Baker Doctrine and the New Federalism: Developing Independent Constitutional Principles Under the Alaska Constitution

• Citation: Vol. 21
• Publication year: 2004

§ 21 Alaska L. Rev. 227. THE BAKER DOCTRINE AND THE NEW FEDERALISM: DEVELOPING INDEPENDENT CONSTITUTIONAL PRINCIPLES UNDER THE ALASKA CONSTITUTION

Alaska Law Review
Volume 21
Cited: 21 Alaska L. Rev. 227

THE BAKER DOCTRINE AND THE NEW FEDERALISM: DEVELOPING INDEPENDENT CONSTITUTIONAL PRINCIPLES UNDER THE ALASKA CONSTITUTION

BY THOMAS V. VAN FLEIN ^[1000]

I. INTRODUCTION

II. A REVIEW OF THE NEW FEDERALISM

A. The Supremacy Clause and Its Limits

B. The Tenth Amendment: More Than a Restraint of Federal Power

III. THE BAKER DOCTRINE: THE OBLIGATION OF STATE COURTS TO DEVELOP STATE CONSTITUTIONAL PRINCIPLES FIRST AND USE FEDERAL LAW FOR MINIMUM STANDARDS

IV. THE BAKER DOCTRINE APPLIED: NOTABLE CASES IN WHICH INDEPENDENT ALASKA STATE CONSTITUTIONAL STANDARDS WERE CREATED

A. Alaska Has Created Greater State Constitutional Protections for Civil Liberties

B. The Alaska Constitution Provides Greater Protections for Criminal Procedural and Substantive Rights

C. Alaska's Equal Protection Standard Is More Favorable to Individual Protection than the Federal Standard

D. Takings Requirements under the Alaska Constitution Exceed Federal Standards

V. CONCLUSION

FOOTNOTES

"One of the strengths of our system of parallel federal and state sovereignties is that the states are, in some areas, free to do things differently than the federal government. Sometimes a state method is better." ^[1]

[*pg 228]

I. INTRODUCTION

Under the dual sovereignty established by our federalist framework, ^[2] state courts have a vital constitutional role to fill. The "axiom" has long been recognized that "under our federal system, the states possess sovereignty concurrent with that of the Federal Government, subject only to limitations imposed by the Supremacy Clause." ^[3] Maintaining and promoting state sovereignty by developing a body of state constitutional law that gives independent application and purpose to the Alaska Constitution has been a challenge for the Alaska courts. Nevertheless, Alaska has made substantial inroads in this regard. At times, the Alaska courts have clearly -- if not boldly -- departed from federal constitutional standards, developing a truly independent state constitutional doctrine. Other times, however, the Alaska courts have missed opportunities for developing Alaska constitutional law in favor of unnecessary deference to federal constitutional standards.

This Article posits that state courts are obligated to advance and develop the state constitution as a primary source for interpreting state law, and should therefore defer to federal constitutional standards only when required to do so by the Supremacy Clause. Absent Supremacy Clause concerns, state courts need not interpret or apply federal constitutional provisions unless they are both textually and historically consistent with state constitutional law and policy and provide worthy guidance. The position of this Article mirrors an early court doctrine first enunciated in Baker v. City of Fairbanks ^[4] and will be referred to as the Baker Doctrine.

This Article reviews the current status of the nascent doctrine of independent state constitutional law and explores areas in which the Alaska courts have succeeded in giving life to the state constitution. The Article evaluates selected cases in which the Baker Doctrine was appropriately applied and touches upon other cases in which it was needlessly overlooked in favor of federal supremacy. ^[5]

[*pg 229]

This Article also takes note of the heightened form of federalism recently promulgated by the United States Supreme Court. Known as the "New Federalism," this doctrine expands both the Tenth and Eleventh Amendments of the United States Constitution, and does so in a manner that reduces federal supremacy and elevates, or at least equalizes, state law. Finally, this Article juxtaposes Alaska's efforts in establishing its own constitutional doctrines within this new form of heightened federalism and contends that this combination provides the state with a significant opportunity to advance its independent state constitutional doctrines and continue with the development of state constitutional standards.

II. A REVIEW OF THE NEW FEDERALISM

Although it is beyond the scope of this Article to analyze the New Federalism doctrine comprehensively, a brief overview is necessary to provide context for the Baker Doctrine and to understand more thoroughly the opportunity presented to state courts to expand upon state constitutional principles. The starting points for a discussion of the New Federalism doctrine are the Tenth Amendment and the Supremacy Clause of the Federal Constitution.

The Tenth Amendment provides: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people." ^[6] The Supremacy Clause provides:

[*pg 230]

This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding. ^[7]

The Tenth Amendment both counter-balances the Article IV Supremacy Clause, which otherwise would eviscerate any true state autonomy, and provides express textual support for the primacy of state law, where not otherwise countermanded by the Federal Constitution.

State constitutional principles must therefore always observe any federal constitutional provision or federal law, and state court judges are mandated to "be bound thereby." ^[8] However, three areas exist in which the states can develop and assert state-based principles independent of, and potentially superior to, federal law. First, states can use any federal law as a floor; the states are free to create standards that exceed federal minimums. ^[9] Second, the Federal Constitution and federal laws do not speak to every issue, ^[10] and states are thus free to address the many areas in which federal law is silent. ^[11] Third, and most complex, state law may trump any federal law that exceeds federal constitutional parameters. ^[12]

[*pg 231]

A. The Supremacy Clause and Its Limits

The drafters of the Federal Constitution envisioned that federal power would be circumscribed to limited subject matters only. ^[13] State law-making power was viewed not just as a default to federal law, but rather a central tenet to the implementation of dual federalism:

The powers delegated by the proposed Constitution to the Federal Government, are few and defined. Those which are to remain in the State Governments are numerous and indefinite. The former will be exercised principally on external objects, such as war, peace, negotiation, and foreign commerce. . . . The powers reserved to the several States will extend to all the objects, which, in the ordinary course of affairs, concern the lives, liberties and properties of the people; and the internal order, improvement, and prosperity of the State. ^[14]

The intended structure expressly provides states with law-making powers that "are numerous and indefinite," whereas federal law-making powers are to remain "few and defined." ^[15] It is established that "[e]very law enacted by Congress must be based on one or more of its powers enumerated in the Constitution." ^[16]

Balancing this constriction of federal power, however, is the need to have a large centralized government that enacts supreme law to create a unified government in areas expressly delegated to the federal government by the Constitution. As explained by one court:

In The Federalist, Alexander Hamilton sets forth how political power is to be divided in a Republic. He states that the laws of the larger political entity -- into which smaller political societies agree to join -- are to be the supreme law of the land. Were it otherwise, Hamilton continues, the agreement would be merely a treaty dependent on the good faith of the parties, and not a government. As a corollary, the acts of the larger society or the government must be pursuant to its constitutional powers, because if not, he concludes, such acts, which would invade the residuary authority of the smaller societies, would consti-[*pg 232] tute a usurpation of power. Beginning with McCulloch v. Maryland, federal courts have attempted to comply with the spirit of Hamilton's view. ^[17]

Obviously both state and federal courts have construed the Supremacy Clause more broadly than Alexander Hamilton envisioned. ^[18] Specifically, the past decades have lacked any definition of the limitation on the Federal Supremacy Clause. However, a series of recent decisions together hint that federal constitutional limits to the Supremacy Clause do exist. ^[19]

The Supreme Court's decision in Gregory v. Ashcroft ^[20] offers one of the better modern explanations of dual sovereignty and the way in [*pg 233] which the constitutional design was intended to function. In Gregory, the Missouri State Constitution, article V, section 26, provided that "[a]ll judges other than municipal judges shall retire at the age of seventy years." ^[21] Some state court judges challenged the state constitutional provision as violative of both the Federal Age Discrimination in...