by John S. Hellenthal • of the Alaska Bar ( Anchorage)

Reprinted from the December 1958 Edition of the American Bar Association Journal

Although the new star will not be added to the flag until next July 4, Alaska will become the forty-ninth of the "United States" this month—perhaps before this issue of the JOURNAL reaches its readers. Alaska will be the largest state in the Union, but her citizens should take greater pride in the fact that they have perhaps the finest state constitution of the forty-nine. Mr. Hellenthal's analysis of this new constitution is both timely and interesting.

Alaska's new state constitution according to House Report No. 621 of June 25, 1957, which accompanied the Act of Admission on July 7, 1958, has been declared by political scientists and public administrators "to be one of the finest ever prepared". This modern constitution was found by Congress "to be republican in form and in conformity with the Constitution of the United States and the principles of the Declaration of Independence, and is hereby accepted, ratified, and confirmed".

Perhaps the outstanding characteristic of Alaska's up-to-date constitution is its provision for an extremely strong executive branch of government.

Deeply sensitive of their lack of home rule and of their self-labeled status as "second class citizens", the sturdy frontier people of the new state made sure that residual and active sovereign power rested with themselves, exercisable through their governor in whom they vested great power. In Alaska's state government there will he no buck-passing or shirking of responsibility by the governor.

Among the fifty-five delegates to the Constitutional Convention at the University of Alaska were fourteen lawyers; nine of these attorneys are present members of the American Bar Association. Prior to the election at which the delegates were chosen, the large number of attorney candidates was the subject of criticism; at the convention, however, committees that did not have lawyers among their members requested that lawyers be appointed to assist them.

The constitution is concise. It contains 12,000 words. It is not as brief as the Rhode Island constitution of 6,650 words, written in 1843, nor as prolific as the Louisiana document written less than forty years ago—1921 —which contains 201,423 words. It compares with the 1947 New Jersey constitution of 12,500. Missouri's highly regarded constitution of 1915 has 30,000 words.

The first statehood bill for Alaska was introduced in 1916, four years after Alaska was organized as a territory. Various Congresses over the years have held hearings on the question, and the committee records of hearings are more voluminous than those dealing with the admission of any other state.

In November of 1955, fifty-five delegates met for seventy-five days at the University of Alaska at College, near Fairbanks. Alaska, and drafted the constitution. The voters of Alaska approved it on April 21, 1956, by better than a two-to-one majority.

At the same time the voters approved a proposal termed the "Alaska-Tennessee Plan" to elect two "Senators" and a "Representative" to attend Congress. Tennessee. Michigan, California and other slates had successfully employed similar devices to expedite their admission to the Union. The pseudo members of Congress so elected in 1956 performed their duties with grace and tact and undoubtedly contributed to Alaska's admission eighteen months after they began their labors in Washington.

Statehood bills in Congress prior to the recent approval of Alaska's Act of Admission carried provision for the formation of a constitution and state government after the Act was passed; the Alaskan Act, however, reversed the normal procedure because foresighted and alert Alaskans had already drawn and approved their constitution.

Possibly it was fortuitous that at the time the delegates met, congressional approval of statehood seemed very remote. Had the delegates met after passage of the Act of Congress they would undoubtedly have been motivated by political considerations to a greater degree. As it occurred, however, the delegates were able to deliberate in a relatively pure academic atmosphere.

The Act of Admission provided for an election at which the boundaries established by the Act be approved, state and federal officials nominated, approval of Alaskan statehood be obtained, and reservations of powers in the United States and grants of lands be approved.

Governor Mike Stepovich called this election on August 26, 1958. The voters of Alaska overwhelmingly approved statehood and the Act by a vote of five to one, with 50 percent more voters voting than had ever voted before in a territorial election.

Shortly after the certification to him of the results of Alaska's general election of November 25, 1958, President Eisenhower will declare Alaska a state by proclamation announcing the results of the general election.

Why is Alaska's constitution regarded as one of the finest?

The basic structure of the new constitution follows the government of typical American states; there are many important features based upon past experience of the forty-eight states.

Judicial System

The Council of State Governments asserts "the judicial article embodies many of the concepts long advocated for good court administration". Some of these are:

1. The progressive features of the Missouri, California, New Jersey and American Bar Association plans for selecting judges;
2. The supreme court will make the rules for all the courts, subject to the authority of the legislature by two-thirds vote to amend the rules of practice and procedure;
3. The chief justice of the supreme court, with an administrative director serving at his pleasure, will administer the entire unified judicial system;
4. The governor will appoint the judges from names submitted by a seven-man judicial council consisting of three lay members appointed by him, three lawyer members named by Alaska's integrated Bar, and the chief justice;
5. Judges desiring to remain in office, must, three years after their initial appointment, submit their names to the voters of their jurisdiction for approval or rejection; thereafter, superior court judges must do so every six years and supreme court justices every ten years.

Doctor Shelden Elliott, of New York University Law School, Director of the Institute of Judicial Administration, New York, and a member of the House of Delegates of the American Bar Association, who had assisted New Jersey in its constitutional revision, helped in the drafting of the provisions relating to the judicial branch. The Alaska integrated Bar approved the draft and offered many practical suggestions.

It is noteworthy that Alaska's method of judicial selection, patterned after the Missouri plan, met with little or no objection from the Bar or the lay public. Under territorial government, Alaska's district judges were appointed for terms of four years by the President, often being chosen from non-residents. One would excuse long-suffering Alaskans, crying for full local government, had they vigorously opposed any non-elective plan.

A Strong Executive Branch

Perhaps none of the states possesses a stronger executive branch than the Alaska state constitution provides. There are no other independently elected officers, and the Governor of Alaska will be held wholly responsible for the conduct of state administration during his four-year term.

Unhappy territorial experiences, resulting from the fact that the smallest details of government were administered by absentee bureaucrats in Washington, undoubtedly influenced this Hamiltonian swing of the pendulum. A strong executive may be the trend in modern state government, as evidenced by the 1947 New Jersey constitution, which creates an executive department very similar to Alaska's.

Unique features of constitutional provisions relating to the executive portion of the state government are:

1. The secretary of state succeeds to the governor's office in ease of vacancy and is nominated at the primary election like other candidates. At the general election, however, a vote for the governor is considered a vote for the secretary of state of the same party running jointly with him. This insures that both governor and secretary of state will be of the same party. At Alaska's primary of August 26, 1958, there was some criticism of this innovation because of the possibility that successful candidates for governor and secretary, though of the same party, might be of very divergent political philosophies. Some believe the constitution will ultimately be amended to provide that the governor shall appoint the secretary of state.
2. Executive departments are limited to twenty, in order to avoid waste, duplication, and an executive hedge-row. New Jersey's 1947 constitution contains a similar provision.
3. The governor, subject to being overruled by the legislature, can re-organize departments and transfer functions among them.
4. Individuals appointed (and removable) by the governor, but confirmed by the legislature, will head principal departments. Boards or commissions may head departments, if the legislature so provides, but their principal executive officer must be approved by the governor although the board may be authorized by the legislature to appoint him.

A Truly Representative Legislature

Territorial legislatures were not representative of the people and of the diverse areas of Alaska, with the result that relatively uninhabited regions exercised disproportionate power and frequently enabled a determined minority to throttle desirable legislation.

The membership of the legislature consisting of twenty Senators and forty Representatives was carefully apportioned in both houses according to population and geography, with emphasis upon area in the Senate and upon population in the House. Small house and senate districts assure that the less populated communities as well as the large cities are represented.

Some modern and progressive features of the article dealing with the legislature are:

1. Automatic reapportionment every ten years by the governor acting on the advice of an independent board.
2. Annual legislative meetings of unspecified length.
3. Annual salaries for legislators.
4. Veto or reduction of items in appropriation bills is possible. A three-fourths or two-thirds vote of the legislature, meeting in joint session, depending on whether a revenue and appropriation measure or other bill is involved, is required to override a governor's veto.
5. It is mandatory that a legislative council be established to meet between legislative sessions.
6. A constitutional provision requires legislative regulation of the practice of lobbying.

Many Modern Constitutional Provisions

Voting Age Lowered

Nineteen-year-olds are permitted to vote. High school trained students with elementary civics and government fresh in mind should be well suited to enjoy the full rights of their citizenship. Many believe that youthful voting will tend to curb juvenile problems by instilling a sense of responsibility following high school, rather than requiring young men and women to mark time until they are twenty-one years of age.

Up-to-Date Declaration of Rights

Alaska's constitution accents human rights that have been stressed in current times. Thus—"No person is to be denied the enjoyment of any civil or political right because of race, color, creed or national origin", and "the right of all persons to fair and just treatment in the course of legislative and executive investigations shall not be infringed".

Martial Law

The martial law provision is unique, namely "martial law shall not continue for longer than twenty days without the approval of a majority of the members of the legislature in joint session".

Finance

Earmarked funds are done away with, rigid tax and debt limits are abolished. No state debt for capital improvements can be contracted without approval by the state electorate. The governor must submit to the legislature a detailed annual budget; the legislature shall appoint an auditor to conduct legislatively prescribed post-audits.

Merit System

The legislature must establish a system under which the merit principle will govern the employment of persons by the state.

New Approach to Local Government

Evils of county governments with unchangeable boundaries, many elected officials, and overlapping tax authority are sought to be avoided by the creation of "borough" governments corresponding to counties, and to exist together with city governments as the only two classes of local government. Organized boroughs will be created as needed. Provision for home rule in cities and boroughs is made. Service areas to provide special and limited services in organized and unorganized boroughs may be established. The constitution is sufficiently elastic to permit retention of traditional forms of local government, should the legislature so desire; cities, however, must be extended maximum home rule by virtue of a self-executing provision of the constitution.

This approach is largely without precedent. The aim is desirable "to provide for maximum local self-government with a minimum of local government units, and to prevent duplication of tax-levying jurisdictions". Enlightened, inspired and unselfish legislation will be needed to accomplish this end within the constitutional framework.

Natural Resources

Provisions dealing with the abundant natural resources of the new state are advanced and sound. Maximum use is balanced with continued availability for future generations. Disposals of rights in state lands must be preceded by public notice. Mining laws shall follow the pattern of federal laws and shall be based upon discovery and appropriation of mineral resources.

Where the forty-eight states struggled to protect their resources after statehood, Alaska made provision for their protection prior to admission.

Amendments

Amendments to the new constitution can be proposed by a two-thirds vote of each house of the legislature to be effective after approval of the proposed amendment by a majority of the votes cast at the next statewide election.

Constitutional Convention

Provision is made for a constitutional convention every ten years. After a period of ten years passes without a constitutional convention having been held, the matter of whether or not such a convention shall be held must be placed before the voters; if the majority votes in the affirmative, a convention is held. The constitution drawn at this convention must he ratified by the people. Legislative inaction cannot hamstring constitutional reform.

Initiative—Referendum

The constitution provides for both initiative and referendum.

Many Proposals Rejected After Debate

Specifically rejected constitutional proposals were those for a unicameral legislature; elective attorney general, treasurer and other state officials; provision for "complete" separation of church and state; elected judges; independent boards and agencies; biennial meetings of the legislature; permitting legislators to be elected from districts other than their district of residence, as in England; overriding veto by vote of each house, rather than at joint session; prohibition against payment of public funds for "indirect" benefit of religious or private schools.

Some proposals were rejected as being legislative in nature, and many others on more general grounds, e.g. right to work provisions: prohibitions against gambling, and wire tapping or eavesdropping.

Lessons Learned at Constitutional Convention

Many states presently seek constitutional revision; many need a thorough-going revamping of their outdated constitutions. The recent experience of Alaska can benefit both groups.

At their convention Alaska's constitutional delegates discovered:

1. Fifty or sixty delegates can adequately handle the problem of constitutional revision at a unicameral meeting.
2. Committees should be established at the outset. Alaska created these: Judiciary, Legislative, Executive, Natural Resources, Local Government, Apportionment and Suffrage, Bill of Rights, Finance, Administrative, and Style and Drafting. The committees should hold hearings and report their conclusions in the form of drafts of constitutional articles to the convention floor.
3. The meeting should be limited in duration. Ninety days is sufficient time.
4. A handbook should be prepared well in advance, contrasting and comparing constitutional provisions of the forty-nine states on various subjects.
5. Full use should be made of professional bodies and of individuals devoted to study of political science.
6. The session should recess for about thirty days at the half-way point to hold public hearings and to explore popular sentiment.
7. The question of unicameralism should be buried at the outset of the session.
8. Certain illustrative committee hearings should be televised, as Alaska did, to generate the spirit of constitutional reform.
9. A secluded university affords ideal environment and atmosphere for constitutional deliberation.

During the more than two years following the adoption of Alaska's constitution by its people and the approval of the Act of Admission, no serious criticism of the constitution has been made by the many powerful foes of Alaska statehood, either during the violent debates in Alaska prior to the elections of April, 1956, and August, 1958, or during the congressional debates on statehood in 1957 and 1958. The constitution withstood the test of debate. Whether or not a modern and efficient state will result must be determined in ensuing years by the statesmanship of the legislators and their success in carrying out the intent of the constitution framers.

Article reprinted with permission from the Journal of the American Bar Association and LaRue Hellenthal

 
John S. Hellenthal's Biography