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"One of the strengths of our system of parallel federal and state sovereignties is that the states are, in some areas, free to do things differently than the federal government. Sometimes a state method is better."¹

[*pg 228]

I. INTRODUCTION

Under the dual sovereignty established by our federalist framework,² state courts have a vital constitutional role to fill. The "axiom" has long been recognized that "under our federal system, the states possess sovereignty concurrent with that of the Federal Government, subject only to limitations imposed by the Supremacy Clause."³ Maintaining and promoting state sovereignty by developing a body of state constitutional law that gives independent application and purpose to the Alaska Constitution has been a challenge for the Alaska courts. Nevertheless, Alaska has made substantial inroads in this regard. At times, the Alaska courts have clearly -- if not boldly -- departed from federal constitutional standards, developing a truly independent state constitutional doctrine. Other times, however, the Alaska courts have missed opportunities for developing Alaska constitutional law in favor of unnecessary deference to federal constitutional standards.

This Article posits that state courts are obligated to advance and develop the state constitution as a primary source for interpreting state law, and should therefore defer to federal constitutional standards only when required to do so by the Supremacy Clause. Absent Supremacy Clause concerns, state courts need not interpret or apply federal constitutional provisions unless they are both textually and historically consistent with state constitutional law and policy and provide worthy guidance. The position of this Article mirrors an early court doctrine first enunciated in Baker v. City of Fairbanks ⁴ and will be referred to as the Baker Doctrine.

This Article reviews the current status of the nascent doctrine of independent state constitutional law and explores areas in which the Alaska courts have succeeded in giving life to the state constitution. The Article evaluates selected cases in which the Baker Doctrine was appropriately applied and touches upon other cases in which it was needlessly overlooked in favor of federal supremacy.⁵

[*pg 229]

This Article also takes note of the heightened form of federalism recently promulgated by the United States Supreme Court. Known as the "New Federalism," this doctrine expands both the Tenth and Eleventh Amendments of the United States Constitution, and does so in a manner that reduces federal supremacy and elevates, or at least equalizes, state law. Finally, this Article juxtaposes Alaska's efforts in establishing its own constitutional doctrines within this new form of heightened federalism and contends that this combination provides the state with a significant opportunity to advance its independent state constitutional doctrines and continue with the development of state constitutional standards.

II. A REVIEW OF THE NEW FEDERALISM

Although it is beyond the scope of this Article to analyze the New Federalism doctrine comprehensively, a brief overview is necessary to provide context for the Baker Doctrine and to understand more thoroughly the opportunity presented to state courts to expand upon state constitutional principles. The starting points for a discussion of the New Federalism doctrine are the Tenth Amendment and the Supremacy Clause of the Federal Constitution.

The Tenth Amendment provides: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people."⁶ The Supremacy Clause provides:

[*pg 230]

This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.⁷

The Tenth Amendment both counter-balances the Article IV Supremacy Clause, which otherwise would eviscerate any true state autonomy, and provides express textual support for the primacy of state law, where not otherwise countermanded by the Federal Constitution.

State constitutional principles must therefore always observe any federal constitutional provision or federal law, and state court judges are mandated to "be bound thereby."⁸ However, three areas exist in which the states can develop and assert state-based principles independent of, and potentially superior to, federal law. First, states can use any federal law as a floor; the states are free to create standards that exceed federal minimums.⁹ Second, the Federal Constitution and federal laws do not speak to every issue,¹⁰ and states are thus free to address the many areas in which federal law is silent.¹¹ Third, and most complex, state law may trump any federal law that exceeds federal constitutional parameters.¹²

[*pg 231]

A. The Supremacy Clause and Its Limits

The drafters of the Federal Constitution envisioned that federal power would be circumscribed to limited subject matters only.¹³ State law-making power was viewed not just as a default to federal law, but rather a central tenet to the implementation of dual federalism:

The powers delegated by the proposed Constitution to the Federal Government, are few and defined. Those which are to remain in the State Governments are numerous and indefinite. The former will be exercised principally on external objects, such as war, peace, negotiation, and foreign commerce. . . . The powers reserved to the several States will extend to all the objects, which, in the ordinary course of affairs, concern the lives, liberties and properties of the people; and the internal order, improvement, and prosperity of the State.¹⁴

The intended structure expressly provides states with law-making powers that "are numerous and indefinite," whereas federal law-making powers are to remain "few and defined."¹⁵ It is established that "[e]very law enacted by Congress must be based on one or more of its powers enumerated in the Constitution."¹⁶

Balancing this constriction of federal power, however, is the need to have a large centralized government that enacts supreme law to create a unified government in areas expressly delegated to the federal government by the Constitution. As explained by one court:

In The Federalist, Alexander Hamilton sets forth how political power is to be divided in a Republic. He states that the laws of the larger political entity -- into which smaller political societies agree to join -- are to be the supreme law of the land. Were it otherwise, Hamilton continues, the agreement would be merely a treaty dependent on the good faith of the parties, and not a government. As a corollary, the acts of the larger society or the government must be pursuant to its constitutional powers, because if not, he concludes, such acts, which would invade the residuary authority of the smaller societies, would consti-[*pg 232] tute a usurpation of power. Beginning with McCulloch v. Maryland, federal courts have attempted to comply with the spirit of Hamilton's view.¹⁷

Obviously both state and federal courts have construed the Supremacy Clause more broadly than Alexander Hamilton envisioned.¹⁸ Specifically, the past decades have lacked any definition of the limitation on the Federal Supremacy Clause. However, a series of recent decisions together hint that federal constitutional limits to the Supremacy Clause do exist.¹⁹

The Supreme Court's decision in Gregory v. Ashcroft²⁰ offers one of the better modern explanations of dual sovereignty and the way in [*pg 233] which the constitutional design was intended to function. In Gregory, the Missouri State Constitution, article V, section 26, provided that "[a]ll judges other than municipal judges shall retire at the age of seventy years."²¹ Some state court judges challenged the state constitutional provision as violative of both the Federal Age Discrimination in Employment Act of 1967 and Federal Equal Protection principles.²² Their challenge was denied, and in the process, the Court reiterated its explanation of dual sovereignty, as set forth in an 1869 decision:

Over 120 years ago, the Court described the constitutional scheme of dual sovereigns: "'[T]he people of each State compose a State, having its own government, and endowed with all the functions essential to separate and independent existence,'. . . '[W]ithout the States in union, there could be no such political body as the United States.' Not only, therefore, can there be no loss of separate and independent autonomy to the States, through their union under the Constitution, but it may be not unreasonably said that the preservation of the States, and the maintenance of their governments, are as much within the design and care of the Constitution as the preservation of the Union and the maintenance of the National government. The Constitution, in all its provisions, looks to an indestructible Union, composed of indestructible States."²³

According to the Court, dual sovereignty is structured to provide co-equal sovereignty between states and the federal government, with defined exceptions granted to the federal government for supremacy, and with the states retaining superior sovereignty in the remaining vast and largely undefined categories.²⁴ This view was codified with the enactment of the Tenth Amendment. The Court recognized that "[t]he States thus retain substantial sovereign authority under our constitutional system."²⁵ Although the states ceded power to the federal government, the states retained "a residuary and inviolable sovereignty."²⁶ Today, we operate under a system in which the "Framers rejected the concept of a central government that would act upon and through the States, and in-[*pg 234] stead designed a system in which the State and Federal Governments would exercise concurrent authority over the people."²⁷

Of importance to the states, and state courts, is the purpose undergirding the structure of dual federalism. The Court in Gregory stated:

This federalist structure of joint sovereigns preserves to the people numerous advantages. It assures a decentralized government that will be more sensitive to the diverse needs of a heterogenous society; it increases opportunity for citizen involvement in democratic processes; it allows for more innovation and experimentation in government; and it makes government more responsive by putting the States in competition for a mobile citizenry.

Perhaps the principal benefit of the federalist system is a check on abuses of government power. "The 'constitutionally mandated balance of power' between the States and the Federal Government was adopted by the Framers to ensure the protection of 'our fundamental liberties.'" Just as the separation and independence of the coordinate branches of the Federal Government serve to prevent the accumulation of excessive power in any one branch, a healthy balance of power between the States and the Federal Government will reduce the risk of tyranny and abuse from either front.²⁸

The purposes identified by the Gregory Court should be considered whenever a state court faces an issue of state law that may differ from, exceed, or duplicate federal law. State courts should accordingly recognize the presence of these concerns as factors warranting a holding based on state law. The Supremacy Clause has given the federal government "a decided advantage in this delicate balance," ²⁹ as "Congress may impose its will on the States" so long as it is legislating "within the powers granted it under the Constitution."³⁰ State courts should therefore focus their analyses on the determination of whether Congress is, in fact, acting "within" its constitutional strictures. When Congress legislates "in areas traditionally regulated by the States," state courts should closely scrutinize the federal legislation to determine express congressional intent and the appropriate constitutional textual basis supporting such congressional intent.³¹ The preservation of dual sovereignty requires no less than an exacting scrutiny by state courts. Undue deferential rationalization to the potential supremacy of the federal government undermines the structure and feasibility of dual sovereignty and the federalist system overall.

Under the decision in Gregory, federal legislation seeking to regulate the structure and operation of state government should be considered [*pg 235] constitutionally infirm and violative of the notion of dual sovereignty.³² The Gregory Court stressed that congressional intent to preempt state law should not be lightly inferred, explaining that "it is incumbent upon the federal courts³³ to be certain of Congress' intent before finding that federal law overrides this balance [of dual sovereignty]."³⁴ The Court further explained that "if Congress intends to alter the 'usual constitutional balance between the States and the Federal Government,' it must make its intention to do so 'unmistakably clear in the language of the statute.'"³⁵ Accordingly, courts need to determine congressional intent and should not assume, infer, or imply intent where none is expressed, particularly when legislation affects state powers and autonomy.³⁶ Con-[*pg 236] gress is obligated to "make its intention 'clear and manifest' if it intends to pre-empt the historic powers of the States.'"³⁷

B. The Tenth Amendment: More Than a Restraint of Federal Power

While the Supremacy Clause has garnered the most judicial attention and application, the Tenth Amendment provides an additional check on federal power, as well as an express textual delegation of powers to the states that equals or exceeds federal power in certain circumstances.³⁸ The powers reserved by the Tenth Amendment to the states formed the basis of Justice Brandeis' dissenting view in New State Ice Co. v. Liebmann³⁹ that the states are "laboratories" with sufficient autonomy and sovereignty to create a body of law independent of federal law.⁴⁰ That view⁴¹ has been given life by the Court in numerous decisions.⁴²

[*pg 237]

The Tenth Amendment also establishes a textual limitation on federal law-making power to ensure a dual system of federalism.⁴³ As well recognized by the Court, even when Congress must act under "extraordinary conditions," it must still act within the confines of the express constitutional grants of power; the ends do not justify the means:

Extraordinary conditions may call for extraordinary remedies. But the argument necessarily stops short of an attempt to justify action which lies outside the sphere of constitutional authority. Extraordinary conditions do not create or enlarge constitutional power. The Constitution established a national government with powers deemed to be adequate, as they have proved to be both in war and peace, but these powers of the national government are limited by the constitutional grants. Those who act under these grants are not at liberty to transcend the imposed limits because they believe that more or different power is necessary. Such assertions of extra-constitutional authority were anticipated and precluded by the explicit terms of the Tenth Amendment.⁴⁴

The principles contained in the Tenth Amendment were implicitly assumed by the original drafters of the Constitution and codified later to eliminate any doubt that "the relationship between the national and state governments" would be preserved "as it had been established by the Constitution before the amendment."⁴⁵ As explained by the Court in United States v. Sprague,⁴⁶ "[t]he Tenth Amendment was intended to confirm the understanding of the people at the time the Constitution was adopted, that powers not granted to the United States were reserved to [*pg 238] the States or to the people. It added nothing to the instrument as originally ratified . . . ."⁴⁷

Under this understanding of the Tenth Amendment, the proper questions for courts confronted with the issue of whether a federal law applies in a given case are the following: (1) whether the law makes an express representation of congressional intent to usurp state powers and state law, and (2) if so, whether a textual basis exists in the Constitution for this exercise of congressional power. If either question is resolved negatively, both the Tenth Amendment and the principles of dual federalism require a rejection of the federal law. Moreover, it becomes apparent that the Supremacy Clause cannot be used to bootstrap an otherwise constitutionally infirm provision into constitutional supremacy vis-à-vis the states, as the Supremacy Clause itself requires that Congress must have acted within its constitutional powers before it "may impose its will on the States."⁴⁸ Viewed in this light, the Supremacy Clause is a conditional guarantee of supremacy, not an absolute one. The clause ensures supremacy only as long as the congressional enactment is made pursuant to an express delegation of power within the Constitution.⁴⁹

In practice, the powers reserved to the states under the Tenth Amendment have not established a truly co-equal or dual sovereignty system. Although many examples exist of Congress and the federal courts checking potential abuses of state governments,⁵⁰ it is impossible to find one state court decision or one state legislative enactment that attempts, much less succeeds, in checking the alleged abuse or usurpation of power by the federal government.⁵¹ This arrangement is not a surprising one, as it embodies a comfortable status quo intellectually and judicially; it is questionable, however, whether this should in fact be the status quo, particularly in light of the Court's recent decisions.

[*pg 239]

It is certainly unlikely that this development was intended by the framers of the Constitution. Alexander Hamilton expected the states to retain the ability to prevent federal usurpation of individual liberties, just as the federal government has the power to prevent state abuse of individual liberties: "If their rights are invaded by either, they can make use of the other as the instrument of redress."⁵² James Madison also imagined the power of either government to rectify, stop, or prevent the abuse of power by the other: "Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself."⁵³ As further explained by Justice O'Connor in Gregory, "[i]f this 'double security' is to be effective, there must be a proper balance between the States and the Federal Government. These twin powers will act as mutual restraints only if both are credible. In the tension between federal and state power lies the promise of liberty."⁵⁴

History, however, has demonstrated that there has been little, if any, "mutual restraint."⁵⁵ Instead, the overwhelming majority, if not the exclusive source, of restraint of power has emanated from federal to state,⁵⁶ thus rendering illusory the principle of "mutual restraint." This failure of mutuality can, in all probability, be credited to the fallout from the Civil War.⁵⁷ But now, over 140 years later, perhaps the time has come for the federal courts to relax their grip over the states and to allow the states to exercise mutual sovereignty as originally intended.⁵⁸

[*pg 240]

The Supreme Court's recent resurrection of the principle that states are co-equal sovereigns⁵⁹ and its renewed recognition that the federal government is not an unrestrained oracle of truth, power, and autonomy⁶⁰ indicates that the time has now come to test the waters of this New Federalism. The Court has restrained congressional legislative powers⁶¹ and, at the same time, reinvigorated the states' historical authority to establish their own regulatory or other legislative powers.⁶² In a series of decisions, the Court constricted the breadth of the Commerce Clause,⁶³ as well as Congress' powers under Section 5 of the Fourteenth Amendment.⁶⁴ Additionally, the Court elevated the Tenth Amendment and interpreted it in a manner that constrains Congress' ability to use the states to implement congressional legislative enactments simply by [*pg 241] fiat.⁶⁵ Finally, the Court has buttressed this invigorated federalism by giving states heightened protection under the Eleventh Amendment's⁶⁶ sovereign immunity doctrine.⁶⁷

Despite periods of Court neglect, the Tenth Amendment was clearly intended to provide a substantive barrier to federal authority. For instance, in 1798, Thomas Jefferson explained that any federal act that was not authorized by the express powers delegated under the Constitution would be void.⁶⁸ He wrote, "whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no [*pg 242] force."⁶⁹ In light of the Court's recent emphasis on the reserved powers of the states, each individual state, including Alaska, should reevaluate its respective state constitution and promote the development of state law independently of federal doctrine, grounded in the text and intent of the state constitution.

III. THE BAKER DOCTRINE: THE OBLIGATION OF STATE COURTS TO DEVELOP STATE CONSTITUTIONAL PRINCIPLES FIRST AND USE FEDERAL LAW FOR MINIMUM STANDARDS

In light of the federal Supremacy Clause, Alaska courts interpreting the state constitution are obligated only to ensure that minimum federal standards are met.⁷⁰ Alaska courts are free to, and should, exceed these standards in the many instances in which the Alaska Constitution textually exceeds the Federal Constitution.⁷¹ An early decision of the Alaska Supreme Court, Baker v. City of Fairbanks,⁷² explained:

While we must enforce the minimum constitutional standards imposed upon us by the United States Supreme Court's interpretation of the Fourteenth Amendment, we are free, and we are under a duty, to develop additional constitutional rights and privileges under our Alaska Constitution if we find such fundamental rights and privileges to be within the intention and spirit of our local constitutional language and to be necessary for the kind of civilized life and ordered liberty which is at the core of our constitutional heritage.⁷³

[*pg 243]

The Baker court thus laid the cornerstone on which independent Alaska constitutional law can be built.⁷⁴

The Baker Doctrine establishes a preference, if not an obligation, for Alaska courts to examine and expound upon Alaska constitutional law in lieu of, or certainly in addition to, federal constitutional law.⁷⁵ As explained by the court:

[W]e have recognized that we are at liberty to make constitutional progress in Alaska by our own interpretations, as long as we measure up to the national standards which are required by the United States Supreme Court. It is our duty to move forward in those areas of constitutional progress which we view as necessary to the development of a civilized way of life in Alaska.⁷⁶

The court further reasoned that, although federal constitutional minimums must of course be observed, it is incumbent upon Alaska courts to decide cases based on the Alaska Constitution: "[doing otherwise] would be an abdication of our constitutional responsibilities to look only to the [U.S.] Supreme Court for guidance."⁷⁷

[*pg 244]

A review of the Baker Doctrine's application demonstrates the Supreme Court's notable success in progressing well beyond federal constitutional minimums.

IV. THE BAKER DOCTRINE APPLIED: NOTABLE CASES IN WHICH INDEPENDENT ALASKA STATE CONSTITUTIONAL STANDARDS WERE CREATED

Although only thirty-four years old, the Baker Doctrine has gained a strong foothold in the Alaska courts. Several reasons may explain the relatively rapid growth of independent state constitutional law in Alaska: (1) the state is both geographically and culturally dissociated with the Lower 48, and its people demonstrate, in most areas, a strong penchant for individual autonomy;⁷⁸ and (2) the federal government had an overwhelming influence in pre-statehood days, including ownership of almost all land, which strongly compelled most Alaskans to seek "independence" by becoming a state, and the state courts now guard that independence.

In addition, the potential for independent state-based law is high in Alaska because the scope of the state courts' constitutional review in Alaska is broad.

The courts of the state of Alaska have the constitutional duty to review actions by agencies of the state in order to ensure compliance with all provisions of the Alaska Constitution. This function applies not only to coordinate branches of government such as the legislature and the executive branch but to component parts of the judiciary such as lower courts, and the grand jury.⁷⁹

In short, virtually any government action, by law, regulation, rule, or court order, is subject to constitutional review if questioned. Accordingly, there is no shortage of opportunity to develop state law independently of federal law.

State courts gain distinct advantages by resting their decisions on independent state grounds. In addition to fulfilling the expectations of dual federalism, when a state court rests its decision on state law, any [*pg 245] federal review is thereafter more limited.⁸⁰ To an extent, the federal courts lack jurisdiction to review a decision that rests solely on state law.⁸¹ It is recognized that "where the judgment of a state court rests upon two grounds, one of which is federal and the other nonfederal in character, [federal court] jurisdiction fails if the nonfederal ground is independent of the federal ground and adequate to support the judgment."⁸² This rule was first established to preclude federal authority to modify state-court judgments resting on an alternative state substantive ground.⁸³ The doctrine grew and was extended to bar federal review of state judgments that rest on adequate and independent state procedural grounds.⁸⁴

The converse is also true; when a state court relies on both federal and state law, the federal courts may find jurisdiction to review the state court's decision.⁸⁵ In Michigan v. Long,⁸⁶ for instance, the U.S. Supreme Court considered its jurisdiction to review a judgment of the Michigan Supreme Court that had ruled a search unlawful.⁸⁷ Because the Michigan court had relied almost exclusively on federal decisions construing the Fourth Amendment, federal review was not precluded; the federal courts expressly adopted a presumption in favor of federal review "when . . . a state court decision fairly appears to rest primarily on federal law, or to be interwoven with the federal law, and when the adequacy and independence of any possible state law ground is not clear [*pg 246] from the face of the opinion."⁸⁸ Accordingly, state courts can ensure the better development of state law and protect the integrity of their judgments by relying on state constitutional law when rendering decisions.

Other reasons exist to independently expand Alaska constitutional law. The Alaska Constitution, being relatively new in origin, contains textual provisions that could not have been, or were not, envisioned when the Federal Constitution was drafted.⁸⁹ For example, Alaska's "constitutional right to privacy finds no express counterpart in the federal constitution and has thus served as the basis for extending protections to Alaska citizens that are not extended under the United States Constitution."⁹⁰ The right to privacy is but one example. The state constitution also contains an entire article, article VIII, devoted to natural resources, a subject not mentioned in the Federal Constitution.⁹¹ As discussed below, Alaska courts have often given truly independent analysis and meaning to the Alaska Constitution, particularly in the areas of criminal law, individual rights, and civil liberties.⁹²

A. Alaska Has Created Greater State Constitutional Protections for Civil Liberties

Civil liberty protections have experienced the best developments in truly independent Alaska constitutional law. This trend is not coincidental since "[t]he 'constitutionally mandated balance of power' between [*pg 247] the States and the Federal Government was adopted by the Framers to ensure the protection of 'our fundamental liberties.'"⁹³

The court in Doe v. Dep't of Public Safety⁹⁴ explained the heightened recognition of personal liberty under the state constitution and squarely rejected federal constitutional standards that proved too insufficient to satisfy Alaska's greater protections of fundamental liberties:

We have often recognized the importance of personal liberty under our constitution. "[A]t the core of this concept is the notion of total personal immunity from governmental control." The right is not absolute; its limits depend on a balance of interests that varies with the importance of the right infringed. When the state encroaches on fundamental aspects of the right to liberty, it must demonstrate a compelling government interest and the absence of a less restrictive means to advance that interest.⁹⁵

Applying these standards, the court found that the Alaska Sex Offender Registration Act unconstitutionally required the convicted sex offender to register when his conviction had been set aside prior to enactment of the law.⁹⁶ The court reasoned that the "set-aside conferred on Doe a fundamental right to be let alone with respect to the conviction that was being set aside," and the state could not, consistent with notions of due process, require him to register.⁹⁷

Critical to our analysis here, the Doe court flatly rejected federal constitutional law standards that found no due process violation under the same circumstances.⁹⁸ Instead, the court, relying on the Baker Doctrine, detailed the greater protection of personal liberty offered by the state constitution:

State courts are not necessarily bound by the United States Supreme Court's decisions when they consider issues of state constitutional law. Only the Supreme Court's decisions on issues of federal law, including issues arising under the Federal Constitution, bind the state courts' consideration of those issues. The Alaska Supreme Court is the final authority on whether an Alaska statute violates the Alaska Constitution. Doe's appeal involves Alaska's constitutional guarantee of due process. The Federal Constitution protects the due process rights of all Americans. But federal law does not preclude the Alaska Constitution from providing more rigorous protections for the due process [*pg 248] rights of Alaskans. When we interpret a provision in the Alaska Constitution, we are not bound by the United States Supreme Court's interpretation of the corresponding provision in the Federal Constitution. We may not undermine the minimum protections established by the United States Supreme Court's interpretations of the Federal Constitution. But "we have repeatedly explained that we are free, and we are under a duty, to develop additional constitutional rights and privileges under our Alaska Constitution if we find such fundamental rights and privileges to be within the intention and spirit of our local constitutional language and to be necessary for the kind of civilized life and ordered liberty which is at the core of our constitutional heritage."⁹⁹

The Doe decision, by invoking the elevated protections under the Alaska Constitution and expressing the duty to turn to it before the Federal Constitution, represents an excellent application of the Baker Doctrine.

Another example of greater personal freedom being afforded under Alaska's state constitution is the decision in Swanner v. Anchorage Equal Rights Comm'n.¹⁰⁰ In Swanner, the court recognized that the wording of the free exercise of religion clauses in both the state and federal constitutions were identical.¹⁰¹ However, the court announced that it would apply and interpret the Alaska Constitution without being constrained by federal precedent, stating that it could reach a finding that would "provide greater protection to the free exercise of religion under the state constitution than is now provided under the United States Constitution."¹⁰² This decision is notable since it provides guidance to the Alaska courts to analyze constitutional issues independently without being constrained by federal precedent, even if the constitutional language is similar or identical.

One of the preeminent areas in which state constitutional law exceeds federal constitutional law pertains to the individual right of privacy. Unlike the Federal Constitution, the Alaska Constitution contains an express textual protection for privacy rights.¹⁰³ As the Alaska Supreme Court noted in Anchorage Police Dep't Employees Ass'n v. Mun. of Anchorage:¹⁰⁴

Since the citizens of Alaska, with their strong emphasis on individual liberty, enacted an amendment to the Alaska Constitution expressly providing for a right to privacy not found in the United States Consti-[*pg 249] tution, it can only be concluded that the right is broader in scope than that of the Federal Constitution.¹⁰⁵

Accordingly, because the Alaska Constitution expressly mandates the protection of individual privacy rights, the state legislature is often circumscribed, if not prohibited altogether, from enacting legislation that intrudes into this right, even though such legislation may not be violative of federal constitutional standards.¹⁰⁶ Thus, Alaska courts have invalidated, on state constitutional grounds, legislative attempts to restrict abortions,¹⁰⁷ laws attempting to criminalize drug use in the privacy of one's home,¹⁰⁸ voting right restrictions,¹⁰⁹ and attempted restrictions on the right to a jury trial.¹¹⁰

In Valley Hospital Ass'n, Inc. v. Mat-Su Coalition for Choice,¹¹¹ the Alaska Supreme Court held that the Alaska constitution provides a heightened right to reproductive choice:

[O]ur articulation of the protection of reproductive rights under Alaska's constitution may be broader than the minimum set by the federal constitution . . . .Our prior decisions support the further conclusion that the right to an abortion is the kind of fundamental right and privilege encompassed within the intention and spirit of Alaska's constitutional language.¹¹²

Thus, to some degree, the national debate over the validity and continuing viability of the United States Supreme Court's decision in Roe v. Wade¹¹³ is of minimal importance in Alaska, as the Alaska Supreme Court has rested its holdings on independent state constitutional grounds. By doing so, the state court has kept the promise of dual sovereignty and federalism.

Another example of Alaska's assertion of independent state constitutional doctrine is the right to privacy as it relates to access to records. The reasoning in Matter of A.B.¹¹⁴ is illustrative. In Matter of A.B., the court compared both federal and state constitutional privacy standards, [*pg 250] applied both standards to the facts then pending, and grounded its holding in both constitutions.¹¹⁵ The court explained:

In analyzing asserted constitutional rights of privacy, the applicable legal principles are as follows. The federal right of privacy derives from a broad reading of the due process clause of the fourteenth amendment, or from "emanations" from other constitutional provisions. The right to privacy in Alaska is expressly guaranteed by article I, section 22 of the Alaska Constitution, which states in relevant part: "The right of the people to privacy is recognized and shall not be infringed."

Although neither federal nor state rights of privacy are absolute, it is part of the judicial function to ensure that governmental infringements of privacy are supported by sufficient justification. Under federal precedent it must be found that the privacy invasion is necessary to a compelling state interest, and that the governmental regulation does not sweep too broadly. Under the Alaska Constitution, the required level of justification turns on the precise nature of the privacy interest involved. In absence of a suspect classification or impairment of a fundamental right, we have required that there be a "fair and substantial relation" between the means chosen and a legitimate governmental purpose. Where fundamental rights are at stake, the State's interest in invading privacy must be compelling. Thus, to determine the validity of the release order, we must consider both the nature and the extent of the privacy invasion, and the strength of the state interest in requiring disclosure. The release order at issue here survives constitutional attack under either standard.¹¹⁶

The result in Matter of A.B. was correct; the analysis, however, unnecessarily considered both federal and state constitutional standards. Since the state constitutional standard protecting the right to privacy is broader than the federal standard, any discussion of the federal standard is pure dicta. It is not necessary for the state courts to address the federal standard in a right to privacy case other than to note that the Alaska constitutional standard is more protective of individual rights than federal law. A risk exists that the courts may be co-opted by federal precedent, even when simply using that precedent as a model.¹¹⁷ Accordingly, state [*pg 251] courts should vigilantly scrutinize the basis of federal precedent before applying that interpretation to a state constitutional provision. To the extent that Alaska "[s]tate courts are not necessarily bound by the United States Supreme Court's decisions when they consider issues of state constitutional law,"¹¹⁸ it is superfluous to analyze federal law when the decision can be grounded in state law alone. Further, by grounding a decision, even in part, upon federal law, the state courts risk review and reversal by a federal court.

The right to a jury trial has also received emphasis under the Alaska Constitution. Justice Jay Rabinowitz explained that the "Alaska Constitution is the source of the right to a jury trial."¹¹⁹ Attempts to modify or restrict this right by the legislature traditionally have been closely scrutinized and typically found invalid -- that is until recently. The right to a jury trial had been considered the cornerstone of Alaska's civil and criminal justice systems, and the protection of this right exceeds federal constitutional minimums: "The Alaska Supreme Court has held that the right to jury trial guaranteed by Article I, Section 11 of the Alaska Constitution is broader than the corresponding right to jury trial guaranteed by the Federal Constitution."¹²⁰ It is well established that "the trial jury's role as finder of fact is one of the fundamental aspects of American jurisprudence."¹²¹ Accordingly, any action that infringes upon this right will be closely examined.

A decision that represents an anomaly, however, is the plurality decision in Evans v. State.¹²² In Evans, the plurality upheld legislative restrictions on the right to a jury in the civil context by affirming damages caps.¹²³ Whereas prior case law established the primacy of jury verdicts and respect for jury decisions, by affirming limitations on jury awards, the plurality undermined the traditional respect the constitution had enshrined for jury verdicts. Evans may best be viewed as a nod to political expediency as opposed to any doctrinal change in the constitutional standing of the right to a jury trial and in the jury's previously unfettered domain to render a verdict consistent with the law and its judgment.

[*pg 252]

B. The Alaska Constitution Provides Greater Protections for Criminal Procedural and Substantive Rights

In the area of criminal law, a number of Alaska cases provide similarly notable examples of holdings based on state constitutional law. For example, the Alaska Supreme Court has construed the due process rights afforded prisoners in disciplinary proceedings under the Alaska Constitution in excess of the federal constitutional standards.¹²⁴ As the court in Brandon v. Department of Corrections¹²⁵ explained:

A comparison of the relevant holdings of this court and the United States Supreme Court in the area of prison disciplinary proceedings shows that we have interpreted the due process guarantee under the Alaska Constitution more broadly than the United States Supreme Court has interpreted the identical provision of the United States Constitution.¹²⁶

Other decisions likewise have turned to the Alaska Constitution and given it independent application. In Beavers v. State,¹²⁷ the court held that Alaska's state constitutional right against self-incrimination, which bars the use of confessions obtained by police threats, was "more demanding than federal constitutional law."¹²⁸ The Beavers court noted that federal constitutional law employs a "totality of circumstances" standard in determining whether a confession was obtained in violation of a suspect's right against self-incrimination, and this standard may permit confessions obtained in the presence of police threats.¹²⁹ Rejecting this approach, the Beavers court expressly rested its ruling on article I, section 9 of the Alaska Constitution.¹³⁰

Individual rights have been enhanced under state constitutional law in other areas of criminal law. The Alaska Court of Appeals in State v. Gonzalez¹³¹ explained that the "Alaska Constitution's unique concern with the rights to liberty and privacy, and the Alaska Supreme Court's vigilant enforcement of these rights" result in stronger individual protections under the Alaska Constitution.¹³² As a result, criminal defendants have broader search and seizure protections¹³³ than those available solely [*pg 253] under the Federal Constitution.¹³⁴ In addition, Alaska defendants have a constitutional right to counsel at the pre-indictment line-up stage of a criminal prosecution, unlike under federal law.¹³⁵

C. Alaska's Equal Protection Standard Is More Favorable to Individual Protection than the Federal Standard

Alaska courts have also developed a more demanding level of scrutiny for purposes of minimal constitutionality under the State's equal protection clause. The Alaska Court of Appeals in Maeckle v. State¹³⁶ recognized the irrelevance of federal standards when determining equal protection under Alaska law and reasoned that for "purposes of deciding Maeckle's claim, [the court] need consider only the Alaska Constitution, since our supreme court has interpreted Alaska's equal protection and due process clauses more broadly than the federal courts have construed parallel provisions of the United States Constitution."¹³⁷ When reviewing state legislative enactments for compliance with the minimal requirements of equal protection, the state court has heightened its application of "minimal scrutiny" under its sliding scale analysis beyond the mere "rational basis test" applied under federal constitutional standards. As the Alaska Supreme Court explained:

[*pg 254]

Minimal scrutiny under our state constitution may be more demanding than under the federal constitution. As under the federal constitution, the challenged exclusion must be designed to achieve a "legitimate" governmental objective; however, the exclusion must bear a "fair and substantial" relationship to the accomplishment of the legitimate objective under state law whereas the relationship under federal law need only be "rational."¹³⁸

What is notable about Alaska's higher level of minimal scrutiny is that nothing in the text of the Alaska Constitution appears to mandate a more exacting standard. Instead, this scrutiny is mandated only by the court's interpretation of the general intent of the state constitution. In holding that, at a minimum, legislation "must bear a 'fair and substantial' relationship to the accomplishment of the legitimate objective," the court implicitly concluded that such an interpretation resonated with the spirit and intent of the Alaska Constitution.¹³⁹ In addition, the state court reviewed federal law in this regard and simply found it constitutionally unjustifiable to require that only a "rational" basis be met before the legislature may distinguish among citizens.¹⁴⁰ Thus, the Stanek and Maekcle decisions represent excellent examples of Alaska courts fulfilling the promise of dual federalism and giving vigor to the state constitution.

D. Takings Requirements under the Alaska Constitution Exceed Federal Standards

An important area in which a material textual difference between the state and federal constitutions exists pertains to takings. Under the Federal Constitution's Fifth Amendment, the government need only pay damages for a taking when property has been taken or impacted to such an extent that it has no useful economic value.¹⁴¹ The Fifth Amendment to the United States Constitution provides: "nor shall private property be taken for public use, without just compensation."¹⁴² The Alaska Constitution, on the other hand, contains a provision that requires the government to reimburse a property owner even if the property is simply "damaged" by government actions or regulations.¹⁴³ The state Takings Clause provides that "[p]rivate property shall not be taken or damaged for pub-[*pg 255] lic use without just compensation."¹⁴⁴ Alaska courts have appropriately determined that this textual difference is both material and substantial; federal takings jurisprudence therefore provides limited guidance to the state courts. ¹⁴⁵

Unlike federal courts, Alaska courts "liberally interpret Alaska's Takings Clause in favor of property owners, whom it protects more broadly than the federal Takings Clause."¹⁴⁶ Moreover, the Alaska Takings Clause protects not only real property, but it extends to personal property and services or labor as well.¹⁴⁷ In addition, the state constitu-[*pg 256] tion takings section "ensures compensation for temporary as well as permanent takings."¹⁴⁸ Moreover, resting on the text of the Alaska Takings Clause, the courts have rejected federal court decisions, or what they term as "traditional rules," "that do not comport with the primacy of full compensation, measured from a property owner's perspective, and with economic reality."¹⁴⁹ Additionally, under Alaska law, the "objective of just compensation is to place the property owner 'as fully as possible in the same position as he was in prior to the taking of his property.'"¹⁵⁰ This restoration to full economic health, no matter how minor the harm or "damage," finds no counterpart in federal takings law.¹⁵¹ In light of all the foregoing, the three-factor test used by federal courts to determine whether government action effects a taking, including (1) "the character of the governmental action," (2) "its economic impact," and (3) "its interference with reasonable investment-backed expectations," is not the model generally followed in Alaska.¹⁵²

When viewed as a whole, the Alaska courts have appropriately and substantially created an independent takings doctrine based exclusively on the Alaska Constitution and the textual difference between the Alaska Constitution and the Federal Constitution. In this regard, the courts have assisted in the preservation of the dual federalist structure and strengthened the autonomy of the state.

V. CONCLUSION

Alaska courts have made many notable inroads along the path of establishing an independent body of state constitutional law, and in so doing, have promoted and fulfilled the promise of dual federalism. The Alaska courts have given life to the state constitution, particularly where textual differences exist, and established a truly separate body of state law. This is particularly noteworthy in the areas of individual rights and liberty and takings. The courts' creation of independent state law fulfills the intent of the Framers of the Federal Constitution, who envisioned strong and independent states that worked together on issues of national [*pg 257] importance, but maintained their own powers to govern as each state saw best.

Alaska courts have produced some notable failures as well, not addressed here in detail, but best represented by the plurality's decision in Evans v. State.¹⁵³ The plurality in Evans ignored the state constitution's more exacting standard in favor of what appears to be a political compromise, rather than basing the decision on a principled legal analysis.¹⁵⁴ However, it is rare for the Alaska Supreme Court to neglect the well-recognized protections of individual liberty and access to the courts under the state constitution, and the Evans decision may not withstand the test of time. If it does, it may well remain as a monument of what to avoid in future cases.

On the whole, the Alaska courts have succeeded in developing a body of independent state constitutional law. It appears likely that the unique features of the state constitution will continue to be given life and meaning, making it a primary document governing Alaskans, not just a symbol. In light of the United States Supreme Court's invigoration of federalism and state sovereignty, the state courts in Alaska are presented with an opportunity to further establish Alaska's role as a sovereign within a federalist system.

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