Of Time, Place, and the Alaska Constitution

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

Do Retention Elections Work

During the twentieth century, judicial reformers attempting to depoliticize the selection of state court judges and increase respect for the courts advocated moving from competitive elections for judges to merit selection or - as it was initially known - the Missouri Plan. During the 1960s and 1970s, these reformers enjoyed considerable success. Whereas in 1960 only three states - Alaska, Kansas, and Missouri - employed merit selection to choose state supreme court justices, by 1980 eighteen did so. Of course, adoption of merit selection did not altogether eliminate judicial elections, because judges appointed under merit selection are in most states obliged to run periodically in retention elections. Yet this requirement did not unduly concern judicial reformers, because they believed that retention elections differ fundamentally from partisan and non-partisan elections, in that they tend to banish partisanship and facilitate well-informed choices by voters. Moreover, reformers recognized that, even if incumbent judges were defeated, this would not elevate unqualified persons to the bench since the nomination of their replacements would remain in the hands of non-partisan judicial selection commissions. Whether merit selection in fact reduces the influence of politics in judicial selection and elevates the quality of the judiciary has been the subject of considerable debate - one where social scientists have played an increasingly prominent role. This Article contributes to that debate by assessing whether retention elections serve the purposes for which they were created. However, this inquiry is only one part of a comprehensive assessment of merit selection and retention elections. One must also consider whether the ends that merit selection seeks to foster are the appropriate aims for a system of judicial selection and whether the proponents of merit selection have a persuasive understanding of the problems facing the courts. To clarify this point, this Article begins by describing the political context out of which merit selection arose and the implications of that history for the present day

Explaining state constitutional changes

The article aims to analyze the fundamentals and the methods of state constitutional changes in the United States. It recognizes a certain pattern in the political processes of state constitutional changes, but it also points out that, in each case, some specific social groups act more intensely. Furthermore, it analyzes how external political forces can influence changes in state Constitutions. Finally, it concludes that, as a rule, the United States is currently undergoing a period in which there is a certain resistance to the creation of new state Constitutions, with greater popular preference for specific changes in the existing Constitutions

Church and State in the States

In many state constitutions, the provisions dealing with the relationship of church and state differ substantially from the federal establishment clause. In this Article, Professor Tarr demonstrates that relying on the state constitutional guarantees may lead to markedly different results than would obtain under the first amendment. He argues that state constitutional provisions very often are ignored, apparently because practitioners mistakenly believe that state provisions merely repeat the strictures of the first amendment. Professor Tarr maintains that this is unfortunate and untrue, because our constitutional system allows a state constitution to provide for less, equal, or greater separation of church and state than is mandated by the federal Constitution. Moreover, state constitutions often incorporate a distinctive perspective on church and state relations, due to many states\u27 historical experiences in dealing with issues of religious freedom. Professor Tarr traces the historical experiences in Virginia and New York, demonstrating how they affected those states\u27 constitutional protections of church and state, and shows that many state guarantees either reflect similar struggles over religion or borrow language from states that experienced such battles. More specifically, Professor Tar argues that the historical experiences in many states led to clearer language relating to the separation of church and state than is found in the first amendment, and that fidelity to state constitutional mandates requires that state courts not dismiss the state constitution and decide issues solely based on the first amendment, but rather give effect to the distinctive state constitutional perspective. He concludes that turning first to state constitutional guarantees in establishment clause cases is desirable and proper under our federal system

State Constitutional Design and State Constitutional Interpretation

State Constitutional Design and State Constitutional Interpretatio

Popular Constitutionalism and Its Enemies

This Essay is part of the Symposium on State Constitutional Law in Honor of the late Washington State Supreme Court Justice Robert F. Utter that was held on October 23, 2015