As everyone knows, there are three co-equal branches to government: legislative, executive and judicial.
Except they’re not. As in co-equal. Understanding correct constitutional principles is about as rare as finding an uncut diamond while walking the beach. The fact that civics textbooks, law schools, judges and the mainstream press contribute to this woeful ignorance cements it all in place, of course.
Governor Dunleavy’s recent move in docking the judiciary’s administrative budget the sum of their unconstitutional abortion funding is an historic, unprecedented and excellent beginning in making the needed corrections. It will focus the public’s eye on the fact that courts are no friend of constitutions. Calling them a “neutral referee” as retired Alaska Superior Court Judge Sen Tan did, or “impartial and fair”, as did retired Superior Court Judge Elaine Andrews, is like pretending all the umpires in the World Series are ex-Yankees. There may be a neutral call or two, but the outcome will never be in doubt. They have demonstrated that judges want their turn at bat as well as on the pitcher’s mound.
Judges are political creatures who disguise their prejudices with long faces, black robes and the trappings of dignity. They protect the case-law oligarchy of which they are a part, standing on the shoulders of generations of misapplied jurisprudence.
The French political philosopher Montesquieu, whose influence permeated Madison and Jefferson, said: “Of the three powers, the judiciary is next to nothing.”
And Hamilton in Federalist #78: “[The courts} have no influence over either the sword or the purse. It may be truly said that they have neither force nor will, but merely judgment.”
Of the three branches the true superior one is the legislative, which has the power to impeach and remove the executives and judicial members. One can gaze at the constitution all day and never see what courts have seized as if it were written in stone: “The judiciary shall be the sole interpreter of this constitution and shall have power to enforce their will through the Judicial Police.”
This means that the judiciary, whom in Article 4, Section 1 of the Alaska Constitution has its powers defined and granted by the legislature, is a weak sister whose opinions may or may not be accepted by the executive, who possesses enforcement.
This is further demonstrated in Article 1, Section 22 of the Alaska Constitution, which reads: “The right to privacy is recognized and shall not be infringed. The legislature shall implement this section.” In 1972 the framers of this section understood that the definition of the term “privacy” might go rogue. Rather than leave this up to unelected judges, the state constitution expects the representatives, who are more responsible to the people, to determine privacy’s parameters.
Instead what transpired was a seizure of the courts by defining “privacy”, arguably an impeachable offense. This warping was instituted by the self-proclaimed “neutral referee” Mr. Tan in 2001, who insisted that “privacy” meant that abortions had to be funded, despite the clear language in Sec. 22.
Alaska had already legalized abortion in 1970, three years before Roe v. Wade. The expectations that abortion was linked to privacy was not on the minds of the framers of Sec. 22. Rather, it was in anticipation of data mining at the dawn of the computer age.
Thus, we have the daring overthrow of constitutional powers and limitations, which liberals imagine that they are the shining knights who protect them. Not only have the Alaskan courts assumed the power to create rights that they are clearly not permitted to define, but they have seized the power of the purse from the legislative branch found in Article 9 of the constitution.
It is assumed that the legislature, in refusing to impeach the judiciary, has yielded to this overthrow of their own prerogatives. But have they? Since 2001 it would appear that they have exercised their powers found in Art. 1, Sec. 22 by placing a limit on privacy that does not include funding of abortion. And this was once again reiterated in 2019.
In 1973 many liberal constitutionalists, even those who favored legal abortion, were shocked at the high-handed and clearly unconstitutional action of Roe v. Wade. It is good to see that here in Alaska, which Planned Parenthood defines as an “abortion safe state” in a post-Roe culture, a courageous move by a risk-taking governor has drawn a line in the sand, not only for the unborn but for proper constitutional understanding.
But Dunleavy’s action is merely a beginning, for Alaska abortions are still being paid for by the state in defiance of law. This should be halted by executive action, ordering the bureaucracy to reject abortion payments for surgical, per diem and travel expenses.
Dr. Stephen Krason wrote recently in Crisis Magazine that Gov. Dunleavy – and other state governors as well as U.S. presidents – ought to defy court orders that are clearly unconstitutional. Respect and credibility of the judiciary has clearly traveled in a justifiably contemptuous direction. Executives, together with a supportive legislature, are meant to be the “final filter” that defends the constitution. It remains for them to save the courts from their own folly.
The writer host of The Bird’s Eye View radio show in Kenai. He ran for U.S. Senate in 2008 as member of the Alaskan Independence Party and is the former president of Alaska Right to Life.