Thursday, January 21, 2010

Kohlhaas blocked again

You cannot circulate an initiative petition to get a referendum on secession in Alaska. This is what the Alaska Supreme Court ruled in Kohlhaas v. State II, decided January 15. This decision follows a similar 2006 ruling. The reasoning of the earlier ruling was criticized (or perhaps satirized would be the better word) in the Alaska Bar Association's Bar Rag soon after it was issued.

In the January 15 ruling, the Alaska Supreme Court ruled:

Kohlhaas’s revised initiative seeks either secession itself or a change in the Alaska Constitution to allow secession. We have held that secession from the Union is clearly unconstitutional. We have also held that the Alaska Constitution may not be amended by initiative. Therefore, the lieutenant governor correctly denied the initiative’s certification and it was not error for the superior court to dismiss Kohlhaas’s suit on summary judgment grounds. For these reasons, we AFFIRM the superior court’s judgment.

The Court relied heavily on Texas v. White, an 1868 U.S. Supreme Court decision that basically says that the United States is an "indivisible Union of indestructible States." In other words, statehood is like joining the Mafia -- you can't leave alive. The Court also noted that the Alaska Constitution (written in 1956) contains many references to its relationship with the federal government -- references that were politically necessary if Alaska were ever to become anything more than a territory.

The Court left no room for argument:

[I]f and to the extent Kohlhaas’s revised initiative seeks secession itself, it is clearly unconstitutional and therefore an improper subject for the initiative process.


After this second Kohlhaas case, it should be clear that the Alaska Constitution, unlike that of Ohio, cannot be amended by an initiative. Article XIII of the Alaska Constitution provides only three methods for amendment: recommendation by two-thirds vote of each house of the State Legislature, by convention, or following a referendum placed by the Lieutenant Governor in which the voters call for a Constitutional Convention.

There is something to be said for having a Constitution that is harder to amend than Ohio's is; but I'm not sure that the initiative route should be completely closed for Constitutional amendments; and in my opinion, the Court's restriction of subject matter as being a priori unconstitutional, was an abuse of its power.

Clearly, achievement of secession by any means will require all the political savvy the Alaska Independence Party can muster. They will have to run an effective statewide campaign, running candidates for every seat in the Alaska legislature, and electing many of them, before secession can become a reality within their legal system.

Perhaps a more realistic approach would be to concentrate on nullification of unconstitutional federal laws that Alaskans find offensive.


Snaggle-Tooth Jones said...

I find it interesting how the Alaska Supreme Court relied so heavily not only on Texas v. White but on a number of other Reconstruction-era cases. Given the historical context in which these cases were decided, I attribute no more honesty to the SCOTUS that repeadly found the Southern secession a "nullity" than I do the Congress which engaged in the kind of legal shenanigans it did to force ratification of the 14th Amendment. In short, the only real "nullity" here consists of the actions and decisions of the Yankee SCOTUS and Congress. The Federals preserved the Union with an illegitimate invasion of the Southern states, and then proceeded to justify their invasion with all manner of legal legerdemain.

That being the case, Alaskan secessionists should not take this decision lying down. The Tenth Amendment finds the locus of original sovereignty not only in the states, but the *people*. More than that, the tenth amendment assumes that those who represented the 13 states at the time of the Constitution's ratification were true federalists, which is to say that they did not show the same deference to federal power that modern state legislators, jurists, and executives do.

As you accordingly suggest, the *people* should work tirelessly to take their states back from the usurpers who are merely administrators of the federal will, and that means working both within the system to effect that as well as outside of it.

Snaggle-Tooth Jones said...

P.S., I think Thomas van Flein in the AK ABA article you linked nails it: "It seems that a lot of Alaskans like the Federal government. For now. Just keep the money coming."