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Secession from the Union? Another dream dashed by The Court

By Thomas Van Flein

Since the 1970's, Alaska has had an organized political movement, the Alaska Independence Party, seeking a statewide vote that would, in part, ask whether Alaska should "become a separate and independent Nation." (See http://www.akip.org/goals.html).

I think it originated out of Fairbanks, which partially explains this dream, obviously concocted between rounds about 3:00 a.m. in the middle of January (or 3:00 p.m.—it makes no difference there). But what a dream it was. Sovereignty! No meddling by East Coast liberals and their effete notions of a greater union. No federal taxes! (No federal subsidies, either, but that did not get as much play).

Recently, in Kohlhaas v. State, our supreme court addressed whether Alaskans would ever get the chance to vote on making this dream a reality. The short answer was: "No." The long answer from the court (and I paraphrase) was: "Are you crazy? Do any of you people remember the Civil War and the 630,000 casualties? Much as we, as members of the court, would like sovereignty, we have seen the 'shock and awe' of the Federal military, and we can hear the buzz of a drone over the court right now as it warms up a Hellfire missile, and we'd rather not give the federal government any reason to test the missile resistance of the courthouse roof."

Well, the court did not say that, but that is what the court meant. Here is what it really said. In Kohlhaas, the Alaska Supreme Court affirmed the invalidation of a ballot initiative submitted by Mr. Kohlhaas to the Lieutenant Governor. The initiative itself indisputably met all procedural requirements to be placed on the ballot, including obtaining the necessary signatures. (Getting people to sign a piece of paper is not a problem. Getting those same people to throw a Molotov cocktail at an M-1 Abrams tank; whole different story).

It was the substance of the proposed initiative that doomed this proposal. The initiative intended to ask the people whether Alaska "should obtain independence from the United States of America, and become an independent nation, if such independence is legally possible, and if such independence is not legally possible under present law, shall the State of Alaska seek changes in existing law and Constitutional provisions to authorize such independence, and then obtain independence?"

The Attorney General concluded that the initiative was invalid because "[t]he initiative may not be used to propose amendments to the Alaska State Constitution" and because "the law is clear that a state may not secede from the union." Based on this recommendation, the Lieutenant Governor declined to certify the initiative petition for circulation for placement on the ballot. In reviewing the actual language of the initiative, however, it appears that the Attorney General's conclusion that the initiative proposed a constitutional amendment exceeds what the language of the initiative actually proposed, which was merely an effort to "change" the "existing law and constitutional provisions" by the state, not the people directly. The state in fact has a method to alter its constitution. On its face, the initiative did not propose a constitutional amendment by direct action of the people.

But the Attorney General got the second reason right. In affirming denial of the certification of the initiative, the Alaska Supreme Court mentioned substantive restrictions on the initiative process contained in the Alaska Constitution.

I say "mentioned" deliberately, as there is no express limitation in the Alaska Constitution on the substantive provisions contained in the proposed initiative. The actual terms of the Alaska Constitution addressing initiatives are set forth in Article XI, section 7, and provide: "The initiative shall not be used to dedicate revenues, make or repeal appropriations, create courts, define the jurisdiction of courts or prescribe their rules, or enact local or special legislation."

Again, on its face, the proposed initiative did not intrude in any of these substantive areas. The court pointed to a further limitation on subject matter in Article XII, section 11, which provides that "unless clearly inapplicable, the law-making powers assigned to the legislature may be exercised by the people through the initiative, subject to the limitations of Article XI." In other words, as a general matter, unless excluded in Article XII, the people, by way of initiative, can enact any law that the legislature can enact.

The court conceded that "secession is not explicitly addressed in the United States or Alaska Constitutions . . ." The State argued that the proposed initiative was "clearly unconstitutional under [U.S.] Supreme Court decisions addressing secession. We agree with the state that secession is clearly unconstitutional." Relying on a decision from 1868 called Texas v. White, the Alaska Supreme Court held that Alaska may not secede from the union, that instead, (kind of like the Mafia), once you are in, you are in. The court concluded that "[w]hen the forty-nine-star flag was first raised at Juneau, we Alaskans committed ourselves to that indestructible Union, for good or ill, in perpetuity." "Perpetuity" is a long time. Black's Law Dictionary defines perpetuity as "continuing forever." And you thought only diamonds were forever.

Thus, there can be no lawful or peaceful method to have Alaska secede from the Union. Although nothing in the State or Federal constitutions expressly prohibits secession, the principle of non-secession "has been settled by the arbitrament of arms" and subsequently crafted into law by "the repeated adjudications of this court." Daniels v. Tearney, 102 U.S. 415, 418 (1880). In other words, the Union won the Civil War. This constitutional amendment was not written in ink into the Constitution, but written in blood across the Civil War battlefields.

So, in an historical sense, the initiative and the goal appear . . . a little out there. But not discussed by the court is the fact that some of framers of the Constitution did not think this was such a crazy idea. (Certainly millions of people in the Confederacy thought this right was retained).

For those of you who are constitutional originalists the concept of an indestructible union, the once-you-are-in-you-are-in theory, may not be consistent with how the United States was formed. First, as Professor Patrick O'Neal notes: "Clearly, if a state requests such a separation and Congress approves, such a separation would unquestionably be constitutional." Could the ballot initiative in Kohlhaas have been construed as a state request for Congress to approve separation? If so, would that have been a non-violent and lawful approach to secession? (Don't ask me, I am asking you).

Recall as well our own Declaration of Independence, which starts: "When in the Course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another . . . " Certainly the concept of "disbanding" was not foreign to those who started this country. And, as Alexander Hamilton stated in Federalist No. 33 (January 3, 1788): "If the federal government should overpass the just bounds of its authority and make a tyrannical use of its powers, the people, whose creature it is, must appeal to the standard they have formed, and take such measures to redress the injury done to the Constitution as the exigency may suggest and prudence justify." That sort of suggests secession was an option at some point.

Back to reality. There is no way in this day and age a state supreme court would test the waters of secession by giving even the impression such a process could be lawful. If nothing else, for most Alaskans I think, the Federal Government is not making life so unbearable or "tyrannical" that fighting this battle seems warranted. Unless you think palatial airports and long span bridges are "tyrannical" it seems that a lot of Alaskans like the Federal government. For now. Just keep the money coming.

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