Lessons from Alaska

Our territory and now state has traditionally been the home of people who prize their individuality and who have chosen to settle or to continue living here in order to achieve a measure of control over their own lifestyles which is now virtually unattainable in many of our sister states. —Raven v. Alaska (Alaska Sup. Ct. 1975).

Alaska has recently pioneered in three areas which are of interest to those involved in the battle to preserve personal liberty from encroachment by the state. The three developments were significant, although they did not receive much attention in the national media.

The first event took place last year, when the Alaska Supreme Court held in Raven v. Alaska that criminal penalties for adult possession of small amounts of marijuana in the home was an unconstitutional invasion of the individual's right to privacy. Although limited to possession by adults for personal use at home, the landmark decision was the first to recognize that the possession of marijuana is constitutionally protected. Relying in part on a 1969 U.S. Supreme Court case holding that an individual had a right to possess pornography for private use at home, the Alaska decision was based on the right-to-privacy amendment which was added to the Alaska Constitution in 1972. The court stated that "privacy in the home is a fundamental right," and that the state could prohibit the possession of marijuana for personal use in the home only if it could persuasively show "that the public health or welfare will in fact suffer if the controls are not applied."

After a lengthy review of scientific evidence, the court concluded that "the use of marijuana, as it is presently used in the United States today, does not constitute a public health problem of any significant dimensions." The court also found that marijuana use "is far more innocuous in terms of physiological and social damage than alcohol or tobacco," but emphasized that it did not condone the use of marijuana, which the court viewed as a matter for individuals to determine for themselves. Criminal penalties for possession of marijuana outside the home were upheld, primarily based on the court's assertion that it related to the need for control of drivers under the influence of marijuana.

At least fourteen suits challenging marijuana prohibition are now pending in the United States based on the Alaska ruling that possession of marijuana in private by adults may not be constitutionally criminalized. While it may be properly criticized for its rather limited holding, the Alaska precedent is an innovative step forward, in combatting the overreach of the criminal law, which may also prove useful in challenges to laws regulating other private adult conduct such as consensual sexual behavior.

The second noteworthy Alaskan development was the adoption of a new, stricter standard to review the constitutionality of legislation challenged as violative of equal protection rights. In Isakson v. Rickey, the Alaska Supreme Court decided to reject the conventional equal protection test which—except in the limited situations subject to "strict scrutiny," where the right infringed upon is classified as "fundamental" or the statutory category is deemed to be "suspect"—invariably results in the upholding of legislation. Although many attempts at legislative economic regulation were struck down by the courts under the contract clause or Fourteenth Amendment due process clause of the United States Constitution prior to 1934, the courts thereafter adopted a "hands-off" position, using a "rational basis" test to uphold all types of regulatory legislation as valid exercises of state police powers.

The Alaska court noted widespread dissatisfaction with the "rational basis" test, which results in virtually rubber-stamping legislation that is of dubious propriety. Enunciated in May 1976, the new standard requires that challenged legislation (which does not involve a fundamental right or suspect classification) must be shown to bear a "fair and substantial relation to the purpose sought to be advanced."

Courts have devised various formulas to determine the constitutionality of legislation, and—except for the "strict scrutiny" test—most of them are inadequate in restraining legislative power. Alaska's new "substantial relation" test is more demanding than the old "rational basis" standard, and, the court notes, raises the level of the test "from virtual abdication to genuine judicial inquiry." In its first application of the new test, the Alaska Supreme Court ruled that a cut-off date for applications for commercial fishing entry permits did not bear a fair and substantial relation to the purpose of the legislation and therefore violated equal protection rights.

An 1866 New York decision knowingly observed that "No man's life, liberty or property are safe while the legislature is in session." Times haven't changed much since then, and thus we generally favor an across-the-board-application of the "strict scrutiny" test, because it inevitably favors the challenger against the state (although it occasionally has been used to strike down sound legislation). Nonetheless, although its new test would sustain undesirable legislation so long as it closely relates to the legislative purpose, we commend the Alaska Supreme Court for taking a significant step in the direction of judicial protection of the citizenry from the heavy hand of the legislature.

The third significant development was the enactment of legislation to permit Alaskan doctors to administer the controversial drug Laetrile to cancer patients. The importation of Laetrile is prohibited by Federal law, and its prescription as a cancer treatment has been banned by laws in every state. Some Americans have gone to Mexico to obtain the drug, which is made from an extract of apricot pits, and a number of criminal cases are pending involving charges of smuggling the drug into the United States from Mexico. The ban on Laetrile is based on the paternalistic notion that the drug is not a proven treatment for cancer and its use may endanger patients who delay in seeking other proven treatment methods.

Alaska Governor Jay Hammond was urged to veto the legislation by the F.D.A. and the medical profession, but he refused to do so, stating, "The main question in my mind is how far do you go in protecting people from themselves." Hammond soundly concluded that a patient has an "overwhelming" right to receive Laetrile and that the legislation merely "allows each Alaskan to decide for himself" what is in the patient's best interests. The legislation became effective on June 21, 1976. It provides that the drug might still be banned if the Alaska Medical Board ruled it was harmful, but there have been no indications that the Board will take a position on the use of Laetrile.

There's obviously much more pioneering to be done, but it's nice to see how personal liberty is being sheltered by the emerging trends in Alaska. Let's hope that other governmental units swiftly follow these Alaskan lessons.