Understanding the Unoriginal: Indeterminant Originalism and Independent Interpretation of the Alaska Constitution

• Publication year: 2005

§ 22 Alaska L. Rev. 293. UNDERSTANDING THE UNORIGINAL: INDETERMINANT ORIGINALISM AND INDEPENDENT INTERPRETATION OF THE ALASKA CONSTITUTION

Alaska Law Review
Volume 22
Cited: 22 Alaska L. Rev. 293

UNDERSTANDING THE UNORIGINAL: INDETERMINANT ORIGINALISM AND INDEPENDENT INTERPRETATION OF THE ALASKA CONSTITUTION

MICHAEL SCHWAIGER ^[*]

I. INTRODUCTION

II. INDEPENDENT INTERPRETATION AND CONSTITUTIONAL FOUNDATIONS

III. A MODEL AND MODELED CONSTITUTION

A. The Last First Constitution: A Brief History

B. Pressures on the Constitutional Convention

IV. FROM AMBIGUITY TO LIBERTY

A. Interpreting Ambiguous Origins

B. A Few Opportunities for Expanded Rights

V. CONCLUSION

FOOTNOTES

In this article, I argue that the historical context of the Alaska Constitutional Convention should open up the Alaska Constitution to independent interpretation. Alaska courts sometimes avoid independent interpretation of the Alaska Constitution because it seems to be based on borrowed federal constitutional law. This apparent borrowing may be discounted by understanding the historical situation of the Alaska statehood movement and the power of Congress to mold state constitutions. Because of the inherent ambiguity of state constitutional provisions that have federal analogues, Alaska courts should abandon lockstep interpretation of these provisions and instead independently interpret them in line with the Alaska constitutional heritage. This would further protect the rights of Alaskans and make important contributions to the nation's shared constitutional discourse.

[*pg 294]

I. INTRODUCTION

Originalism ^[1] has today become so dominant a strategy for understanding law that it sometimes seems we are all originalists. ^[2] Originalists claim that reference to historical sources provides an objective method of making legal decisions, based on either enduring values ^[3] or the meaning of words in context. ^[4] According to originalists, original meaning is determinant of constitutional law. ^[5] In seeking to interpret the United States Constitution, legal scholars use originalism to understand a truly original work -- the first written national constitution. ^[6]

Despite its attractiveness as a method for interpreting the United States Constitution, originalism is much more intellectually frustrating when used to interpret decidedly unoriginal constitutions -- constitutions whose provisions are largely derived from other documents and framed by polities reliant on the U.S. Congress for sovereignty. Originalism's main strength -- recovering the historical context of constitutional provisions to determine constitutional law -- is substantially weakened when it is used to examine an unoriginal constitution because state constitutional history, as opposed to national constitutional history, is inherently indeterminant of constitutional meaning. This inherent "indeterminancy" arises from the unoriginal nature of state constitutions.

[*pg 295]

Yet, a corollary strength -- describing the nature of ambiguity in local constitutional history -- is augmented. Understanding this ambiguity enables a court to discount plausible "determinant originalist" arguments that would ask a court to interpret a state constitution in accordance with the documents on which it may have been modeled. Understanding the indeterminant nature of state constitutional history also encourages courts to interpret state constitutions according to local constitutional heritage. This is the strength and virtue of "indeterminant originalism." Perhaps nowhere is the opportunity for indeterminant originalism greater than in Alaska, the last state to adopt its founding constitution.

Recently, the University of Alaska has begun to make historical material easily available on the Internet in celebration of the fiftieth anniversary of the Alaska Constitution. ^[7] Thus, Alaska courts considering constitutional questions will undoubtedly be inundated with historical evidence marshaled in a determinant originalist modality. This evidence must be viewed in the larger context of the statehood movement to see how the Alaska constitution protects Alaskans' rights more broadly than does the Federal Constitution. ^[8] This is not just good sense, it is good law: the Alaska Supreme Court decides the meaning of the Alaska Constitution without having to look to federal interpretation of the Federal Constitution. This is "independent interpretation." ^[9]

Because the Federal Constitution provides a sturdy floor for civil rights, the Alaska Supreme Court's independent interpretation of the Alaska Constitution based on Alaska's local constitutional heritage can serve to safeguard rights beyond federal consti-[*pg 296] tutional protections. ^[10] In this article, I argue that Alaska state courts can find new state constitutional rights even in state constitutional provisions that are superficially or even substantially analogous to the provisions of constitutions on which the Alaska constitution is modeled. This is due to the drive for statehood in Alaska, which created such intense pressure to conform the Alaska constitution to "outside" models, such that its text might not always be the best indicator of its heritage. Specific, recoverable historical context can serve to discount analogies between Alaska and federal constitutional law, opening the door for the Alaska Supreme Court to recognize new and expanded civil rights as part of Alaska's constitutional heritage.

In Part II of this article, I discuss the role of independent interpretation and originalism at the state level generally and in Alaska particularly. In Part III(A), I briefly discuss the history of the Alaska constitutional convention before arguing in Part III(B) that substantial pressures from both the Alaska citizenry and the United States Congress might have masked portions of the Alaska constitutional heritage in the framing of the Alaska Constitution. In Part IV, I conclude that Alaska's ambiguous constitutional history should not be ignored by Alaska courts, but should rather be embraced in order to recognize additional constitutional rights, following the guide of Baker v. City of Fairbanks.

II. INDEPENDENT INTERPRETATION AND CONSTITUTIONAL FOUNDATIONS

Since Justice Brennan's call to state judges to interpret their state constitutions before considering the Federal Constitution, ^[11] judicial recognitions of rights under many states' constitutions have bloomed. Even in the first decade after Brennan's invitation, scholars noted the development of new rights in several states through this process of independent interpretation, including Ore-[*pg 297] gon, ^[12] California, ^[13] Texas, ^[14] and Maine. ^[15] Each of these states has developed a jurisprudence identifying additional constitutional protections beyond those in the federal document. For example, indigent defendants in Maine accused of certain misdemeanors gained the right to court-appointed counsel even though the Federal Constitution extends that right only to accused felons. ^[16] Two recent articles have discussed the phenomenon of independent interpretation in Alaska. ^[17]

Independent interpretation of state constitutions has become an important part of the recognition of new constitutional rights and has helped transform state supreme courts into the keepers of the nation's conscience. ^[18] Judges in states with robust individual-rights jurisprudences are particularly concerned that their decisions will be overturned if based on the Federal Constitution, and so as a [*pg 298] result sometimes base their decisions solely on the state constitution. ^[19] It is a controversial question whether state courts are finding new rights that reflect a state constitutional heritage or advancing civil rights the Supreme Court is unwilling to match on a national scale. ^[20] Regardless of the answer, state courts are recognizing new rights, and these holdings will likely affect constitutional interpretation in other states. ^[21] Through such decisions, states may regain their stature as the "informers" of the United States Constitution. ^[22]

In Alaska, courts often apply independent interpretation in deciding cases. Even where the Federal and Alaska Constitutions use identical language, the Alaska Supreme Court has held that the Alaska Constitution affords greater protections than the Federal Constitution. ^[23] In 1995, Ronald Nelson first argued that Alaska's independent interpretations are both uniquely local and nationally valuable, and described Alaska's independent interpretation of clauses regarding equal protection, privacy, freedom of religion, and natural resources. ^[24] Recently, Thomas Van Flein discussed a series of notable cases exemplifying independent interpretation and argued that such interpretation is obligatory under Baker. ^[25] [*pg 299] Both Nelson and Van Flein suggest that Alaska's independent interpretations are robust -- not only on textual dissimilarity, but also on Alaska's local constitutional heritage. ^[26]

Yet in cases advancing independent interpretations of the Alaska Constitution, courts rarely explicitly rely on an originalist interpretation. ^[27] This is unusual among state courts, which often seem to ease their trepidation at departing from federal interpretations by resorting to determinant originalism. ^[28] Perhaps Alaska courts believe that originalism will force them into...