David Eastman: Constitutional convention? Definitely, maybe

By DAVID EASTMAN

As a legislator, I am frequently asked whether or not Alaskans should vote this week to hold a state constitutional convention here in Alaska. As with most questions that end up on the ballot at election time, there are strong proponents of the idea, and strong opponents as well. Owing to the great interest in the question from many of those I represent in the legislature, and primarily for their sake, I will do my best to explain how I see it.

I should note that what I am about to share is unlikely to be picked up and broadcast by either the “Convention YES” or the “NO on 1” camps because my purpose in writing is not to direct voters into either camp. In 2012, the last time the question was on the ballot, Alaskans voted 2 to 1 against calling a constitutional convention. In my district, the vote was even more lopsided at 2.5 to 1. Owing to the Convention YES campaign, I expect the Yes votes in my district to be higher this year, but there remains a great deal of confusion over what exactly it is that those who vote Yes are voting for.

On March 19th 1955, the Alaska Territorial Legislature issued a call for a constitutional convention to be held that same year. Elections were held, and 55 delegates were chosen. The convention was in session for 76 days and held public hearings over a 15-day period. After 220 hours of plenary sessions, 54 of the delegates voted in favor. One delegate, Ralph Robertson, refused to sign. On April 24th 1956, Alaskans voted overwhelmingly to ratify the Alaska Constitution. 

It has continued, largely intact, since that time.

The desire for statehood was a driving force in the legislature’s decision to call a constitutional convention in 1955. I believe the best argument for a convention today, which I hear very few people actually making, are the many profound changes that Alaska has undergone over the last 67 years.

The constitutional convention in 1955 was hardly a partisan affair. It didn’t need to be. Alaska was a Democrat stronghold. When the Alaska State Legislature held its first meeting in 1959, there were 18 Democrats and two Republicans in the state senate. The Alaska Constitution largely reflected the thinking of Democrat voters at the time.

Fast-forward to 2022; the last time Alaskans elected a Democrat majority in the state house was three decades ago. The last time they elected a Democrat majority in the state senate was nearly 50 years ago. Today, Republican voters outnumber Democrat voters by nearly 2 to 1, Nonpartisans outnumber Democrats, and most Alaskans choose not to declare an affiliation with any of the parties.

A lot has changed in 67 years.

One thing that hasn’t changed is Democrat control of the Alaska Judiciary. Article IV, Section 8, of the Alaska Constitution guarantees that members of the Alaska Bar Association will always have a monopoly on who is eligible to serve as a superior court judge or a member of the Alaska Supreme Court. There are 12 members of the Alaska Bar Associations Board of Governors. Three members are non-attorneys appointed by the governor and confirmed by the legislature. These are the only three Republicans on the 12-member board.

Even if Alaska were to one day be the most Republican state in the country, absent a change to the Alaska Constitution, Republicans would never be in a position to choose new judges or who sits on the Alaska Supreme Court. Democrats put a lock on that in 1956.

Likewise, that same supreme court has also sought to put a lock on the constitutional amendment process through the legislature. The Alaska Constitution provides in Article XIII, Section 1, that the legislature may amend the constitution by a two-thirds vote of each house at any time. What this means is that at least 41 out of 60 legislators must vote to send a constitutional amendment to the people for ratification. Needless to say, it doesn’t happen very often. In the case Bess v. Ulmer, the Alaska Supreme Court opined that this hurdle was not high enough, and sought to establish a higher one.

In response to the legislature passing a constitutional amendment to limit the power of the court, the court discovered a new definition of the word “amendment” that would limit the legislature to passing only those amendments that the Court itself approved of. Henceforth, the Alaska Supreme Court opined that it could veto any amendments passed by the legislature that the court found to be either “quantitatively” or “qualitatively” (or a combination of both) a “revision”, and therefore no longer an “amendment”. In doing so, it struck down an amendment that would have added less than 65 words to the Constitution.

To this day, whenever a legislator proposes a constitutional amendment, on whatever topic, the legislature’s attorneys dutifully provide a warning label that the court may, for reasons unknown, deem that amendment to the constitution to be “unconstitutional”.

Even a cursory review of the constitutional convention debates shows that delegates understood that the legislature had the power to pass an amendment that would eliminate the judiciary branch in its entirety! (See the remarks of Delegate McLaughlin, Chairman of the Committee on the Judicial Branch appearing on page 3,425), and that the legislature would need the authority to determine how quickly such a wide sweeping amendment would go into effect.

Effectively, the supreme court has now assumed responsibility for passing amendments to the constitution unilaterally through court decisions. If the legislature desires to pass an amendment without obtaining the consent of the court, the court points to a constitutional convention as the only avenue still available to the people and the other branches of government. Meanwhile, the court has declared that it alone is “under a duty to develop additional constitutional rights and privileges under our Alaska Constitution…” (Valley Hosp. Ass’n v. Mat-Su Coalition). 

As Alaska has moved further and further away from the Democrat stronghold it was in the 1950s, the court has responded by stripping more and more power from the other branches of government and from the people, turning on its head what convention delegates approved and the people ratified in 1956.

Some will say “now isn’t this exactly the sort of situation that calls for a constitutional convention.” Perhaps. But there’s a bit more to it. Many, perhaps even most of those advocating for a convention, point to some way or other one of the branches of government isn’t following the constitution; the courts are reinterpreting (rewriting) the constitution, the governor is misappropriating the PFD, legislators aren’t following state law dealing with limiting sessions to 90 days, etc.

Let us assume for a moment that these charges (or others like them) are true, and that violations of the constitution are taking place. If the constitution is being stretched or broken, how will rewriting the constitution at a convention solve for that? What will stop these same parties from stretching and breaking whatever changes are approved at the convention?

Somewhere along the way, many Alaskans came to find misplaced comfort in the myth that the constitution is a self-executing document; able to defend itself against those who would violate it. America’s founders were under no such illusion. The father of the Constitution, James Madison, was certainly not of that opinion. He referred to the Constitution as a parchment barrier. Unless the people are committed to its defense, its ability to stop government overreach is paper-thin.

The people can take steps to defend their Constitution at any time, but there is no certainty that they in fact will. In fact, so many of the proposals for how to fix government today; voting the bums out, supporting a particular political party, filing lawsuits, and yes, even the calling of constitutional conventions, all distract from the much more difficult work that must precede each of these things if they are to be effective.

To paraphrase Michael Boldin, founder of the Tenth Amendment Center, when individuals in government exceed their constitutional authority you aren’t supposed to wait some number of years to be able to elect someone else who will hopefully do better. You aren’t supposed to wait years until a friendly judge or justice finally agrees that they were out of line and its ok for you to be free again. Those are all passive approaches to government overreach, and passivity only invites more and further overreach. In a constitutional republic, all public officers and all naturalized citizens take an individual oath to support and defend the Constitution because they all have an active role to play in its defense.

It could be that the spirit that currently animates the Convention YES camp will develop into that type of resolve. I believe that is what many of us are hoping for, but it won’t simply happen by itself, even if Alaskans approve a convention on Tuesday. Here are some of the obstacles that Alaskans will need to be able to navigate if a convention is to be successful.

The first and most obvious challenge will be the election of delegates. Some today, rightly blame legislators for the current mess and hope to exclude them from participating in a convention. This is a historical and a practical non-starter. In 1955, 10 legislators were elected as delegates, several more ran and lost, and eight recent former legislators were also elected as delegates. The irony is that federal law at the time expressly prohibited current and many former legislators from being elected as delegates. Congress had to pass a law specifically exempting Alaska legislators from the prohibition, and it did.

The Alaska Constitution also now specifically exempts legislators from such prohibitions. In short, if they want to run, they can. But the idea of excluding legislators is also a non-starter for an entirely different reason. The people are the ones who elect legislators, and the people are the ones who elect delegates. If you are trying to devise a system that prevents the people from being able to elect the representatives and delegates they want, you aren’t just excluding legislators, you are actually excluding the people themselves from the process, and that’s a recipe that quickly departs from the notion of having a constitutional republic in the first place. For better and for worse, the people stay a part of the convention process, and so do at least some of the legislators.

I’ve heard some conservatives propose simply not voting to elect any legislators that run for delegate. That’s one approach. Just realize that if Democrat legislators run and no Republican legislators run, the only legislators elected to be delegates will be Democrats.

Legislators will also be involved in passing the law(s) that will determine how a convention will take place. Someone needs to decide how many delegates there will be. Someone needs to decide how those delegates will get elected and which parts of the state they will represent. In 1955, the delegate elected with the fewest votes was Michael Walsh, who was elected as a write-in candidate with only three votes following the death of another delegate. Someone will need to sort out what happens when delegates die and so forth, and the Alaska Constitution entrusts those decisions to the people’s elected representatives in the legislature.

Because of the First Amendment (see Citizens United), money will also be part of the process. The value of the Alaska Permanent Fund currently sits at more than $70 billion. The constitution is what determines how and when that money can be spent. I don’t know, but Chuck Schumer or George Soros or any number of other political figures in Washington may have some ideas on how they would like to see that money invested and spent. If so, they might be willing to spend a few million to try and help delegates get elected that align with their ideas.

Some have suggested that a novel approach to electing delegates can be chosen which will limit the influence of outside money and current political figures. Perhaps such an approach could be devised, but it would require convincing a majority of legislators to pass such an approach into law, and few politicians are keen on passing laws that limit their own power and influence.

And there’s the rub. Nothing about the project of curbing corruption in government is easy. There’s no silver bullet that will stop corruption in its tracks or halt government overreach, much less turn it back. Holding individuals in government accountable for their actions is the only way. It’s the path forward until there’s a convention, it’s the path forward during the convention process, and it’s the path forward after a convention has done its business.

But it’s also the least attractive option for those in Juneau and also many in the public who see pushing back against government dysfunction as a colossal waste of time. So the dysfunction worsens and the calls for relief grow ever louder. One day, Alaskans will pull the trigger on a convention. If I were a betting man, I would put my money on Alaskans calling a convention through their legislators. Something that neither camp talks about is that the constitution gives legislators the ability to call a constitutional convention at any time.

Of course, its easier for some legislators to downplay that option, blame their troubles on the constitution itself, and tell the public that the only path forward is for the people to solve their problem by voting for a constitutional convention. Of course, if the vote on Tuesday is NO, it would not surprise me at all if some of these same politicians spend the next 10 years talking about how “the people have spoken” and that they couldn’t possibly go against the will of the people and trigger a convention through the legislature.

Will these politicians be held accountable by the people? Only the people can decide that question, and don’t look for help from those connected to Juneau. Politicians, legislative employees and their family members have a vested stake in the status quo (even those of us who are fighting against it every day).

The legislature could be putting the breaks on things like judicial overreach through laws limiting the jurisdiction of the courts, cutting their budgets, and beginning impeachment proceedings against the worst offenders. Instead, legislators routinely ratify such abuses by voting to approve the money that permits them to continue. Some may try to blame the constitution for that, but it’s not the constitution’s job to make politicians follow it. It’s the politician’s job to keep their oath, and it is the responsibility of every Alaskan to call them to task when they do not. 

David Eastman is a state representative for Wasilla, District 10.

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