Court Avoidance Erodes Constitutional Integrity

A Follow-Up to “All I Want for Christmas is… Constitutional Fidelity!” by Edward Martin, Jr. and Natalie Spaulding

By Edward Martin, Jr.

One of the quiet dangers to constitutional government is not open defiance, but judicial avoidance. When courts decline to interpret clear constitutional language, the result is not neutrality. It is erosion. 

Alaska’s Constitution is not merely a collection of permissions for government action; it is a framework of restraints. Those restraints only function when they are enforced as written. When courts sidestep structural provisions—especially those designed to discipline spending and protect citizens—the Constitution is reduced from governing law to ornamental text. 

This concern is not theoretical. It is visible in modern Alaska jurisprudence. 

In litigation, brought by Bill Wielechowski, challenging reductions to the Permanent Fund Dividend, the Alaska Supreme Court resolved the dispute primarily on separation-of-powers grounds, emphasizing legislative discretion over appropriations.¹ What the Court did not do is equally important: it did not squarely address the Constitution’s explicit exemption of the Permanent Fund Dividend from the Article IX spending limit.² 

That exemption is not implied. It is textual. Article IX, Section 16 of the Alaska Constitution expressly excludes the Permanent Fund Dividend from the spending cap.³ Yet the Court never required the State to demonstrate how that exemption is honored in budget practice, nor did it define the constitutional consequences if it is not. By declining to interpret the exemption, the Court avoided judging the Alaska fiscal system’s quiet inversion of the Constitution’s design by treating citizen dividends as discretionary while government spending grows unchecked. 

This is a classic example of constitutional avoidance. Courts sometimes justify avoidance as prudence or restraint. But when avoidance concerns a structural limitation, the effect is not modest at all. Structural provisions exist precisely because ordinary political processes cannot be trusted to police themselves. If courts will not give those provisions operative meaning, then no institution will. 

The danger becomes clearer when the PFD exemption is viewed alongside other fiscal restraints in Article IX. In 1982, Alaska voters amended the Constitution to tighten limits on state debt, requiring voter approval for most long-term obligations.⁴ That amendment was a direct response to creative financing and public-authority debt that functioned like state debt without citizen consent. The principle was unmistakable: government convenience does not override constitutional control. 

The spending limit and the PFD exemption serve the same structural purpose. Both are designed to prevent government from expanding first and asking permission later. Both protect citizens—not politicians—from fiscal overreach. If one can be neutralized by interpretation-avoidance, so can the other. 

This is how constitutions decay: not through dramatic violations, but through selective silence. A provision acknowledged but not enforced is functionally repealed. Over time, political actors learn which clauses matter and which can be ignored. The Constitution remains formally intact, but its restraining force evaporates.⁵ 

Constitutional fidelity requires more. Courts need not favor one policy outcome or another to enforce structural limits. They need only do their duty: interpret the text and require compliance. When a constitution exempts something, that exemption must mean something in practice. When it limits power, that limit must be measured. 

The Permanent Fund Dividend is not merely a budget line. It is a constitutional construct tied to the people’s ownership interest in Alaska’s resource wealth. Treating it as an afterthought and refusing to interpret the very clause that protects it signals a broader institutional failure to respect constitutional structure. 

If Alaska is serious about constitutional fidelity, the path forward is clear. Courts must stop avoiding hard structural questions. Legislators must be required to demonstrate compliance, not merely assert it. And citizens must insist that constitutional limits be treated as binding law, not optional guidance. 

A constitution exists precisely because citizens and officials will disagree. It only works when those disagreements are resolved by fidelity to the text—not by silence when the text becomes inconvenient. 

Sources

1. Wielechowski v. State, 403 P.3d 1141 (Alaska 2017) (resolving PFD litigation on appropriations and separation-of-powers grounds). 

2. See id. (no substantive interpretation of Article IX, Section 16’s PFD exemption). 

3. Alaska Constitution, art. IX, § 16 (“The limitation on appropriations does not apply to appropriations from the permanent fund dividend fund.”). 

4. Alaska Constitution, art. IX, § 8 (as amended 1982) (restricting state debt absent voter ratification). 

5. See, e.g., Vest v. Schafer, 757 P.2d 588 (Alaska 1988) (discussing the importance of constitutional structure and limits on governmental power). 

Edward Martin, Jr. is a retired 50+ year IUOE, General Contractor and long-time Alaskan with a strong belief in the National and State Constitutions and the inherent rights of citizens. He devotes his retirement to investigating Constitutional violation(s) in hopes of protecting the eternal rights of liberty. “Where the Spirit of the Lord is, there is liberty.” — 2 Corinthians 3:17.