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
- Wielechowski v. State, 403 P.3d 1141 (Alaska 2017) (resolving PFD litigation on appropriations and separation-of-powers grounds).
- See id. (no substantive interpretation of Article IX, Section 16’s PFD exemption).
- Alaska Constitution, art. IX, § 16 (“The limitation on appropriations does not apply to appropriations from the permanent fund dividend fund.”).
- Alaska Constitution, art. IX, § 8 (as amended 1982) (restricting state debt absent voter ratification).
- 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.
Very well written with constitutional facts. Thanks.
Exactly the intent of Rep.Oral Freeman. At every conversation regarding the protection of the PFD as the Constitution stated was his guardian word.
Here, years later, another comes to state clearly what the Constitution provides a protocol. No politician or potential candidate running for office from District 1, will avoid my asking their interpretation. If other, then I will chastise that person and politic against their success. In closing I will state recent past and present members, House and Senate, from District one have violated and continue violating the PFD statute.
Cheers,
Al Johnson-Ketchikan
Your article is pure fantasy.
For the record, I was on the Committee that wrote the first proposal for a dividend; the proposal that the US Supreme Court struck down because it required five years of residency to receive a full dividend. Three years later, I was the Chairman of the House State Affairs Committee when it was tasked with reviewing the second dividend proposal, the Senate Bill introduced by Jay Hammond, the same Dividend program we have today.
In 1982, I participated in the drafting of the 1982 Constitutional Amendment you referenced. It neither had the effect nor the intent that you have suggested. The amendment exempted the dividend and several other items from the spending cap it created. It did not exempt the dividend or anything else mentioned in the Amendment from the Legislature’s authority to appropriate or not appropriate any part of any statutory recommendation.
So, you are arguing that the Alaska Legislature has the authority to break its word every year and steal the people’s funds? I don’t think so, sir. Odd that it only occurred after decades and one spend-happy governor decided it could be done. Ever since, the Alaska Lawbreakers have played shell games with the budget and fed us all a line of sh*t for why they need to take our money.
Article 9 – Finance and Taxation
• § 7. Dedicated Funds — The proceeds of any state tax or license shall not be dedicated to any special purpose, except as provided in section 15 of this article or when required by the federal government for state participation in federal programs. This provision shall not prohibit the continuance of any dedication for special purposes existing upon the date of ratification of this section by the people of Alaska. [Amended 1976]
• § 13. Expenditures — No money shall be withdrawn from the treasury except in accordance with appropriations made by law. No obligation for the payment of money shall be incurred except as authorized by law. Unobligated appropriations outstanding at the end of the period of time specified by law shall be void.
In other words, the Legislature I was in did not have the authority to bind future Legislatures to our recommended appropriations. The Constitution requires each Legislature to decided what to appropriate and how much to appropriate once every two years.
I don’t know if the person who wrote that comment really is Ray Metcalf, but if it is then it blows this author’s arguments out of the water. What we do know is that the AK Supreme Court has ruled in line with what the above Ray Metcalf poster wrote, and against what the author of this article has written. The author and most commenters here voice some idea that they know more about the constitution than the AK Supreme Court, people who have spent their careers studying and interpreting these things. I am left wondering who to believe for certain, but it seems unlikely that random commenter’s here know more about the constitution than the AK Supreme Court. Perhaps the current court has ruled incorrectly and a future court will find otherwise, but for now i do not believe i have any good data suggesting that the current court is “lying” or “not able to interpret some clause” or “stealing.”
But let’s look at the issue the way i do. Manda: you are concerned that someone is “stealing the people’s money.” Unless spending is cut or oil taxes are raised, the people’s money will be taken in the form of income or sale’s taxes. The money has to come from somewhere. If you are right, and the state pays the statuatory dividend, or the “full dividend,” or whatever you want to call it, taxes will be instituted to pay for government. Dunleavy tried to cut spending and then buckled under pressure. SB21 means we will get little revenue from the new oil being developed. What is left is taxes. Do you think we should pay taxes to pay dividends? Do you think the state should tax hard-earned income to pay dividends that people get just for managing to live in AK for another year? I do not.
Snowy, I appreciate the seriousness of your comment, but I think it rests on a false choice and an appeal to authority rather than constitutional analysis.
Courts do not possess exclusive ownership of constitutional meaning. They interpret cases brought before them, often narrowly, and sometimes explicitly avoid structural questions. That is not an accusation; it is a well-documented judicial practice. Pointing out what a court did not decide is not claiming superiority—it’s basic legal analysis.
More importantly, your framing assumes that if the statutory dividend is paid, taxes must necessarily follow. That conclusion only holds if current spending levels are treated as untouchable. The Constitution does not make that assumption. It does the opposite: it places restraints on government first.
Taxing citizens to replace what government has already diverted from them would indeed be perverse—but that is not the goal. The point is that government must demonstrate constitutional discipline before demanding new revenue. Alaska has not done that.
You ask who to believe. I would suggest believing the text the voters approved, and insisting that all branches—legislative, executive, and judicial—explain how their actions comply with it. Skepticism of unchecked authority is not extremism; it is constitutional citizenship.
Your faith in The Alaska Supreme’s isn’t grounded in my signature ““Where the Spirit of the Lord is, there is liberty.” — 2 Corinthians 3:17” and may never be! Liberty Ed
Ray — thank you for engaging and for your long public service to Alaska. Your historical involvement is important context, and I appreciate you taking the time to respond.
I agree with you on one foundational point: the 1982 amendment did not remove the Legislature’s general authority to appropriate funds, including for the Permanent Fund Dividend. The PFD is statutory, and appropriations still require legislative action.
Where we appear to differ is on the legal effect of the constitutional text the voters adopted.
The operative language in Article IX, Section 16 begins with a limiting clause:
“Except for appropriations for Alaska permanent fund dividends …”
Under settled principles of constitutional interpretation, that introductory clause is not surplusage or explanatory rhetoric; it defines the scope of the spending limit that follows. Its legal effect is straightforward: PFD appropriations are excluded from the constitutional spending cap.
That exclusion does not compel an appropriation, but it does constrain the reasons the Legislature may lawfully rely upon. Specifically, it means the Legislature may not invoke the spending cap itself as a justification for reducing or withholding dividends, because the Constitution expressly removes PFD appropriations from that calculation.
In short, the distinction is this:
The Legislature retains authority to appropriate;
But Article IX, Section 16 removes the spending-cap rationale from the decision matrix with respect to the PFD.
If the exemption had no operative effect beyond acknowledging appropriation authority (which already existed), it would do no constitutional work at all — a result courts consistently avoid. The voters were told in 1982 that government spending would be limited, but the dividend would not be part of that limit. A reasonable voter would understand that to mean the PFD would not be sacrificed to general budget pressures governed by the cap.
So my argument is not that the Legislature lacks power, but that constitutional fidelity requires acknowledging what the people carved out: the Permanent Fund Dividend was intentionally placed outside the spending-limit framework.
Respectfully, that conclusion flows from the text the voters approved, regardless of differing recollections about intent. And it is precisely that fidelity to text and structure — rather than institutional memory alone — that our Constitution ultimately demands.
The people didn’t carve out anything. The Legislature wordsmithed a proposed Constitutional Amendment, and voters approved it. I was part of the debate that did the word-smithing, and I can assure you that no one I debated interpreted our proposal to mean what you claim.
Dividends weren’t the only things exempted from the spending cap. If your interpolation were correct, appropriations of revenue bond proceeds, appropriations required to pay the principal and interest on general obligation bonds, and appropriations of money received from a non-State source in trust for a specific purpose, including revenues of a public enterprise or public corporation of the State that issues revenue bonds, would also be restricted from legislative tampering. The dividend was simply one of many exemptions from the spending cap. That didn’t mean we had to spend it. If you want a full dividend, stop electing legislators who vote to give the oil we all own to the oil companies for a tiny fraction of what the oil companies should be paying us. If Alaska were paid world market value for its oil, paying a full dividend would be no problem.
Ray — thank you for the continued engagement. I take your point about the Legislature’s retained appropriation authority, and I do not dispute it. The Legislature cannot bind future Legislatures, and nothing I’ve written claims otherwise.
Where we continue to differ is on the legal effect of constitutional exclusions.
You are correct that the dividend is one of several items excluded from the Article IX spending limit. But that actually reinforces my point, not weakens it. Each exclusion performs the same constitutional function: it removes certain categories of appropriations from being governed—or constrained—by the spending cap. That does not mandate spending; it limits which justifications may lawfully be invoked.
In other words, exclusion from the cap does not create an entitlement, but it does eliminate the spending cap as a rationale for denial. Courts routinely hold that constitutional text is not surplusage. If the exemption merely restated existing appropriation authority, it would do no work at all.
You emphasize intent as understood during debate. I respect that history. But constitutional law ultimately rests on the text voters approved, not the recollections of those who drafted it. Voters were told government spending would be limited, and the dividend would not count against that limit. A reasonable voter would understand that distinction to have real effect.
Finally, I agree with you that oil tax policy is a legitimate and critical debate. But that debate does not negate the constitutional structure. Policy disagreements do not authorize reinterpretation of constitutional limits after the fact.
Respectfully, my argument is not that the Legislature lacks authority, but that constitutional fidelity requires acknowledging the limits on the reasons that authority may be exercised. Again Ray the debate is wonderfully what needs to happen to wake up Alaskans!
Liberty Ed
“Where the Spirit of the Lord is, there is liberty.” — 2 Corinthians 3:17
You get what you elect, spineless politicians that won’t address outdated legislation in the interest of getting re-elected.
Truth.
We have weak courts managed by a corrupt administrator and judges. Too many times in past years they have lied to accumulate bigger budget needs based on fantasies for positions and cases. There is no oversight at any level within the court system or the executive and legislative branch. The governors pass every position to be appointed and so does the legislative body without challenge and proof of genuine and legal opportunity to that particular community of state discipline and need. We have a weak Bar Association that refuses to do their work which contributes to weak judges and legal employment within the system and the courts.
If there is reason to challenge what the legislative body is or is not doling, the judges stay quiet. If the executive branch should be challenged to explain a decision or purpose, the judges and the department of law stays quiet. When the grand jury issues came to the forefront, the judges perjured themselves with decisions to destroy the purpose of the grand jury within the framework of our constitution for Alaska.
When we have a governor such as we have now that works with a few legislative persons to divest the laws and give to boards the competencies of legislative duties to board members, the department of law is silent and so are the legislative persons whose jobs were given to them by the voters to stop that corrupt type of practice.
Gone are the days of the Rabinowitz court practices where ethical judges actually met their performance with pragmatic decisions within the framework of our law and the reason they sit in those jobs.
The bar Association is not ” weak” its complicit. Saying they’re weak gives them credit for even jntending to do the right thing. They’re in on it,theyre co-conspirators.
Excellent break down on how courts fail in their duty to the constitution and the people of alaska
Whatever legal wrangling it takes, we need to get rid of the dividend. It should be viewed as state money that is available to serve its citizens. What other state has a purely socialistic negative income tax, no income or sales tax yet can’t educate its citizens?
Evan, your comment abandons constitutional argument altogether and replaces it with ideological labels. That may be cathartic, but it doesn’t answer the question raised by the article.
The dividend is not a “socialistic negative income tax.” It is a distribution of resource wealth held in trust for the people, created precisely because Alaskans do not own subsurface mineral rights. Treating it as generic “state money” contradicts the constitutional framework that created the Permanent Fund itself.
Asking why Alaska struggles to educate its citizens while mismanaging billions is a fair question. But eliminating one of the few remaining structural restraints on government will not solve that problem—it will remove accountability. Other states tax heavily and still struggle. Revenue alone does not guarantee competence.
If the answer to every governance failure is to concentrate more control in government and fewer constitutional checks in the hands of citizens, then the lesson of Alaska’s experience has been missed entirely.
The debate here is not about liking or disliking the dividend. It is about whether constitutional limits still mean what they say—or whether they exist only until they become inconvenient. Evan, your debate is worthy for many today but if another advisory vote were taken today I believe your view wouldn’t be in a majority !
Thank you, Liberty Ed
“Where the Spirit of the Lord is, there is liberty.” — 2 Corinthians 3:17
Your explanation is right on. What needs to be discussed and worked through are the political whims of the now governor, and at this stage of the administration, made a political request through Rick Stedman to create a plan of distribution of the PFD to match Dunleavy’s aspirations and support to be governor for a second time. Stedman worked the issue in the Senate Finance and came up with the distribution plan to match Dunleavy’s plan on how the PFD would be distributed for the next five years and the amount of the plan based on the earnings. So Dunleavy was able to promise the state residents a large amount the year of his second term with each consecutive year an amount determined by the plan to meet the planned increase of budgets for each department so the PFD was over used and a good portion of it was removed from the disbursement to the residents. That is what we have today and the fifth ear of the plan is 2026 and the end of the Dunleavy Administration. So, Rick Steadman and the senators on that finance team knew what the plan was going to do and chose top be quiet. Dunleavy like his predecessors back to Parnell have been the most abusive governors in the recent history of the PFD and the distribution issues should be rectified through the legislative work and a governor who would follow the law and intent of the fund. The other serious problem of the PFD is the board and those who have had management of decisions of it during the Dunleavy Administration. The board should be replaced completely as the other boards members in this administration. There is a lot of work to do and it is a clean up job like never before seen in this state.
Anything not in compliance with US Constitution is void for effect. Marbury v Madison. Anything including state constitutions or gentlemen’s “agreements” in conflict with the US Constitution are illegal group activity.