President Barack Obama's announcement last week that he endorses renewal of the Interior Department's management plans for the Arctic National Wildlife Refuge and National Petroleum Reserve, and that certain biologically sensitive areas of the Chukchi and Beaufort Seas are off-limits for oil drilling, generated a political firestorm in Alaska. Our political leaders cried foul. They argued that the federal government doesn't have the right to do whatever it wants in Alaska, that Alaska has a sovereignty that empowers it to limit what the federal government can do here. Their anger is misplaced.
Where might such empowerment come from? Some say from the "compact theory" of federal governance. Others say from promises the federal government made.
What is the compact theory? It's the idea that the states created the federal government when three-fourths of them ratified the 1787 U.S. Constitution, the one we live under. And because the states created the federal government, they have power over it and can tell it what it can do. The great Southern apologist for slavery, John C. Calhoun, was the champion of this idea; he used it to justify civil war when the federal government forbade the extension of slavery into the territories.
The foremost academic critic of the compact theory was Prof. Harry V. Jaffa, a pillar of conservative thinking in America. He gave Barry Goldwater the famous lines, "... extremism in the defense of liberty is no vice; ... moderation in the pursuit of justice is no virtue."
Jaffa wrote two formative books on the thought of Abraham Lincoln in which he articulated his thought on compact theory. It wasn't the states that created the federal government, Jaffa wrote; it was the people, as in "We the People," the first words of the Constitution. The people derived their power, their sovereignty, from the 1776 Declaration of Independence, in the act of declaring themselves absolved from all allegiance to Great Britain. And the people determined that the federal government should be superior to the states, and that the several states do not have the right to determine for themselves the proper scope of federal authority.
The U.S. Supreme Court has confirmed that powers not delegated to the federal government are delegated to the several states. But it has also confirmed the legitimacy of the supremacy clause, establishing that the Constitution, federal statutes and treaties are the "supreme law of the land." There is no binding compact.
What about promises, then? At statehood in 1958, Congressional leaders worried that Alaska did not have a sufficient tax base to support the costs of state government; House Speaker Sam Rayburn and Senate leader Lyndon Johnson were very vocal on this point. So, the statehood act included the grant of 104 million acres of land in Alaska for state title, an area larger than the whole state of California. In that grant Congress honored its promise; the land is to be used to generate revenue to pay for state government. In fact, Congress forbade the state from selling off that land for mineral development; the state has to retain ownership.
In 1980 in the Alaska lands act, Congress forbade the president from creating any further wilderness in Alaska; only Congress can do that. But in his announcement, the president isn't creating new wilderness; he's merely endorsing the plans under which the refuge and NPR-A are already being managed.
There's been talk this week about lawsuits. But we've been down that road. In 1991 the Hickel administration, in Alaska v. U.S., charged that Congress violated the "statehood compact" with its grant of 44 million acres of land to Alaska Natives in 1971, and the withdrawal of 104 million acres of Alaska land in new federal conservation units. The court said, effectively, "Nonsense!" The 9th Circuit Court agreed, writing "Nothing more need be said." The U.S. Supreme Court declined to take up the case.
Alaska's U.S. senators and its governor are lawyers; they should know what the courts have said about compact theory. They also should know that the federal promises have been kept, and that the president's announcement doesn't change policy. Defending Alaska is no vice, but misleading people is no virtue.
Steve Haycox is professor emeritus of history at the University of Alaska Anchorage.
The views expressed here are the writer's own and are not necessarily endorsed by Alaska Dispatch News, which welcomes a broad range of viewpoints. To submit a piece for consideration, e-mail commentary(at)alaskadispatch.com