60 Years Later: The Alaska Constitution, History in Context
In anticipation of the sixtieth anniversary of Alaska statehood, "60 Years Later: The Alaska Constitution, History in Context" was presented Friday, October 12, 2018 at the UAA/APU Consortium Library. The Constitution of the State of Alaska was adopted by the Alaska Constitutional Convention February 5, 1956; ratified by the people of Alaska April 24, 1956; and became operative with the formal proclamation of Alaska statehood on January 3, 1959.
This free symposium on the history of Alaska's constitution was co-sponsored by the UAA Justice Center and the Alaska Law Review in cooperation with the Historians Committee of the Alaska Bar Association.
Coordinator: Prof. Ryan Fortson, J.D., Ph.D., of the UAA Justice Center
CLE Credits: The Alaska Bar Association approved this symposium for 4.5 CLE credits (including 1.5 Ethics credits).
Alaska Law Review 35(2), December 2018 — the symposium edition features the keynote address and articles presented at the symposium.The Alaska Law Review is published by Duke University School of Law for the Alaska Bar Association.
Dean, Berkeley Law
Presenters and panelists
- Ryan Forston, UAA Justice Center
- Tom Metzloff, Duke University
- G. Alan Tarr, Rutgers University; Center for State Constitution Studies
Robert F. Williams, Rutgers School of Law; Center for State Constitution Studies
- Hon. Larry D. Card, Alaska Superior Court (ret.)
- Susie Mason Dosik, Administrative Attorney, Alaska Judicial Council
- Brett Frazer, Latham & Watkins
- Willie Hensley, University of Alaska Anchorage
- John “Sky” Starkey, Landye Bennett Blumstein LLP
- Andy Erickson, Landye Bennett Blumstein LLP
- Mike Schwaiger, Alaska Bar Association, Historians Committee
- Hon. Sen Tan, Alaska Superior Court (ret.)
- Vic Fischer, Delegate to the Alaska Constitutional Convention
Alaska Law Review articles and symposium materials are linked beneath each video.
The complete series of videos are also available as a playlist at the UAA Justice Center YouTube channel.
Videos in the series were produced and edited by Eric Baldwin, UAA Academic Innovations and eLearning.
Click the header for the video you'd like to see.
1. Symposium Introduction and Keynote: Erwin Chemerinsky (44:40 mins.)
Erwin Chemerinsky, Dean of Berkeley Law, was keynote speaker for “60 Years Later: The Alaska Constitution, History in Context.” With the changes in the composition of the U.S. Supreme Court, civil rights litigants increasingly will be turning to state constitutional law. Alaska has been a leader in developing a robust use of state constitutional law to protect rights and liberties. How has it done this? What are the lessons for the rest of the country?
Prof. Chemerinsky was introduced by Prof. Ryan Fortson of the UAA Justice Center, who opened the symposium.
"Keynote Address: The Alaska Constitution and the Future of Individual Rights" by Erwin Chemerinsky. Alaska Law Review 35(2): 117-128 (Dec 2018).
In his keynote address , Dean Chemerinsky discusses how the Alaska Constitution operates to protect individual rights, and how these protections go beyond those offered by the U.S. Constitution.
- 2. A Comparative Perspective of the Alaska Constitution (49:46 mins)
Tom Metzloff (moderator) G. Alan Tarr Robert F. Williams Duke University
Rutgers University; Center for State Constitution Studies
Rutgers School of Law; Center for State Constitution Studies
This presentation seeks to clarify what is distinctive about the Alaska Constitution by placing it in comparative perspective. This begins with a review of the characteristics of state constitutions themselves, in contrast to the more familiar United States Constitution. Next, an introduction to the New Judicial Federalism, whereby state high courts may interpret, or at least consider interpreting, their own state constitutions to provide more protective rights than those under the US Constitution. This is one of the most important developments in state constitutional law, and Alaska is part of it. Finally, the presentation evaluates selected Alaska constitutional provisions and doctrines in the larger context of American state constitutional law.
"Alaska, the Last Statehood Constitution, and Subnational Rights and Governance" by Robert F. Williams. Alaska Law Review 35(2): 139–154 (Dec 2018).
This article will focus on the general characteristics of American state, or subnational constitutions, locating Alaska’s constitution within that constitutional tradition as contrasted with our federal constitutional tradition. This focus will include a brief discussion of “New Judicial Federalism,” where state courts interpret their state constitutions to provide broader protective rights than those recognized by the United States Supreme Court under the Federal Constitution. I will then discuss specific characteristics of the Alaska Constitution and judicial interpretations of it, within the national context.
This article places the Alaska Constitution in historical perspective by comparing it with other state constitutions. It first considers how the convention delegates’ need to satisfy four audiences—Congress, Alaska residents who would ratify the constitution, those who would live under the constitution, and posterity—affected the constitution’s design. It next shows how the Alaska Constitution reflects the fact that it is the state’s first constitution, that it is a western constitution, and that it is a mid-twentieth-century constitution. Finally, it compares the Alaska Constitution with the Hawaii Constitution, which was drafted at the same time.
- 3. The Alaska Judicial Council and Merit Selection of Judges (43:46 mins)
Hon. Larry D. Card (moderator) Susie Mason Dosik Brett Frazer Alaska Supeior Court (ret.)
Administrative Attorney, Alaska Judicial Council
Latham & Watkins
The Alaska Judicial Council, created in Article IV, Section 8 of the Alaska Constitution, carries out the duties of the merit selection system created by the Constitution. In this presentation, Susie Mason Dosik details an article by herself and Teresa W. Carns describing how the Council developed its procedures from statehood forward, and what they are at the present. Drawing on Council meeting minutes, files, and reports starting with the Council’s first meeting on May 18 and 19, 1959 in Juneau, the article covers all aspects of applying to be considered for judicial positions: the application, investigations, bar surveys, standards for nomination to the governor, interviews, voting, and transmission of results to the governor. The article includes a brief discussion of Council actions to continue to improve the process, and to increase public and bar participation in selection and retention matters, as envisioned at the Constitutional Convention.
The judicial selection and retention provisions of the Alaska Constitution, found in Article IV, achieve a delicate and remarkably successful balance between two competing interests—judicial independence and popular sovereignty. Brett Frazer presents a second article, coauthored with Walter Carpeneti, which describes this constitutional plan, (called “merit selection” because it begins with nomination based on merit alone, as determined by a panel comprised of members of the state bar and the general public), explains why the founders of the Alaska Constitution adopted it, examines historical challenges to it, and assesses its performance on the 60th anniversary of Alaska statehood. The authors ultimately conclude that Alaska's merit selection system has performed well, insulating judges from the worst of politics while still allowing some democratic controls on the composition of the judiciary.
"Alaska’s Merit Selection of Judges: The Council’s Role, Past and Present" by Teresa W. Carns and Susie Mason Dosik. Alaska Law Review 35(2): 177–204 (Dec 2018).
Delegates to Alaska's Constitutional Convention adopted a Judiciary Article that called for the state's judges to be selected and retained in a merit selection system. Modeled after the "Missouri Plan," attorneys applying for judgeships are reviewed by the Judicial Council; two or more candidates are nominated to the governor; the governor appoints from the Council's list; and all judges periodically stand for retention in the general elections. Alaska's Judicial Council is composed of three non-attorneys appointed by the governor and confirmed by the legislature, three attorneys appointed by the Alaska Bar Board of Governors, and the Chief Justice who serves ex officio. All appointed members serve staggered six-year terms and are appointed with due consideration for area representation and without regard to political affiliation. This article draws on Council minutes, reports, and other materials to describe the Council's selection process, and how it has evolved since the first days of statehood. The authors evaluate the effectiveness of the process using objective measures, including outcomes of retention elections. Finally, the article concludes with considerations for possible changes to make the process better suited to the Council's increasing work load and the needs of applicants and others participating in judicial selection.
"Merit Selection of Judges in Alaska: The Judicial Council, the Independence of the Judiciary, and the Popular Will" by Walter L. Carpeneti and Brett Frazer. Alaska Law Review 35(2): 205–237 (Dec 2018).
The judicial selection and retention provisions of the Alaska Constitution, found in Article IV, achieve a delicate and remarkably successful balance between competing interests. The purposes of this article are to describe this constitutional plan (called “merit selection” because it begins with nomination based on merit alone), explain why the founders adopted it, examine historical challenges to it, and assess its performance on the 60th anniversary of Alaska statehood.
- 4. A Native Perspective of Alaska’s Constitution (48:58 mins)
Willie Hensley John “Sky” Starkey Andy Erickson University of Alaska Anchorage
Landye Bennett Blumstein LLP
Landye Bennett Blumstein LLP
Due to the unique history of the territory and State of Alaska, and the social, political and legislative treatment of its indigenous inhabitants, Alaska's Constitution has an extraordinary impact on the legal rights of Alaska Natives. Willie "Iggiagruk” Hensley was a young Inupiaq man living in remote rural Alaska at the time of the constitutional convention. He presents the perspective of Alaska Natives in the drafting and ratification of the Alaska Constitution. Willie served in the Alaska Legislature, was a leader in the settlement of Alaska Native aboriginal land claims and has had many other experiences which have given him a close look at how the constitution impacts the rights and lives of Alaska Natives.
John M. “Sky" Starkey follows Willie’s presentation with some thoughts and legal analysis on how Alaskan courts can incorporate consideration of the near exclusion of Alaska Native representatives and perspectives in the drafting of the constitution when they consider constitutional issues with significant impact on Alaska Natives. He concentrates on the natural resource provisions of Article VIII of the constitution and issues related to Alaska Native hunting and fishing.
Andy Erickson discusses how to make the argument to the Alaska courts to bring back traditional and cultural history and context to the interpretation of Article 8 of the Alaska Constitution ("Natural Resources").
"Alaska Native Perspectives on the Alaska Constitution" by William L. Iggiagruk Hensley and John "Sky" Starkey. Alaska Law Review 35(2): 129–137 (Dec 2018).
This article, adapted from a panel session at the Alaska Law Review symposium "60 Years Later: The Alaska Constitution, History in Context," held on October 12, 2018 at University of Alaska Anchorage, focuses on the perspective of Alaska Natives in the drafting and ratification of the Alaska Constitution and considers how to analyze constitutional issues with significant impact on Alaska Natives in light of their exclusion from the constitution-making process.
- 5. Lunch Presentation: Thomas Stewart (10:33 mins)
In this presentation, Mike Schwaiger presents unpublished materials written by the late Honorable Thomas B. Stewart (1919–2007) about the movement for Alaska Statehood and the development of the Alaska Constitution.
"Preparing the Way: Tom Stewart’s Recollections on the Alaska State Constitutional Convention" by Thomas B. Stewart. Alaska Law Review 35(2): 289–306 (Dec 2018).
One of the most important figures in the successful effort for Alaska statehood was Tom Stewart. Born into an established Juneau family headed by Ben Stewart, founder of the Alaska Territorial Department of Mines, Tom was raised in Juneau. After earning his B.A. at the University of Washington, he attended Yale Law School. Following graduation, he clerked for United States District Court Judge George Folta in Juneau in 1951 and became a member of the Alaska Bar. After clerking, he served as Assistant Attorney General for Alaska from 1951 to 1954. He was then elected to the House of Representatives for the Alaska Territorial Legislature, and became closely involved in the efforts to pursue statehood while serving as the Secretary for the 1955 Alaska Constitutional Convention (the “Convention”).
In 1992, Stewart drafted an article for the Alaska Law Review focusing on his recollections of the work he had done both before and during the Convention. This anecdotal article was intended to share Stewart’s unique perspectives on what he thought were some of the significant elements of the constitution drafting process. For whatever reason, the article was not published at that time. In preparing for this symposium, Stewart’s article was unearthed, and it seemed appropriate to publish it as part of this symposium issue.
Stewart’s dedicated efforts to accomplish the drafting of a state constitution were motivated first and foremost by his desire for Alaska statehood. It was clear to him that Alaskans lacked the necessary authority to govern themselves under the existing territorial structure. There were many problems — indeed, Stewart stated that the problems were “too numerous to mention” — as the small territorial government attempted to manage and control the vast expanse of Alaska. Stewart was intimately familiar with prior efforts to pursue Alaska statehood.
- 6. Lunch Conversation: Vic Fischer and Sen Tan (41:19 mins)
Vic Fischer Hon. Sen K. Tan
Delegate to the Alaska Constitutional Convention, 1955–1956
Alaska Superior Court (ret.)
Retired Judge Sen K. Tan and Alaska Constitutional Convention delegate Vic Fisher held a lunchtime conversation about Mr. Fischer's recollections of the Constitutional Convention; about the Alaska Judicial Council, judicial selection, and the independent judiciary; about educating Alaskans about their constitution; amending the constitution; and the question of holding a new constitutional convention.
Vic Fischer was one of 55 delegates to the Alaska Constitutional Convention in the winter of 1955–1956, and was strongly involved in planning for the 2009 celebration of 50 years of Alaska statehood. Fischer was the first director of the University of Alaska’s Institute of Social and Economic Research, and has studied and taken part in Alaska government and politics for over 50 years. In 1974, he authored “Alaska's Constitutional Convention” (University of Alaska Press). Sen K. Tan served as a judge on the Anchorage Superior Court from to 2014, and was the presiding superior court judge for the Third Judicial District from 2011 to 2013.