March, 14, 2011
UAA Professor and formeer Alaska Attorney General
Regarding your Op-Ed piece in the Alaska Daily News,
Wisconsin harks back to old power imbalance - "No state shall pass any law ... impairing the obligation of contracts." But that means, of course, "no state legislature." State courts are free to interpret "the common law." John Havelock former Alaska attorney general who teaches public policy at UAA.
First, for all practical legal purpose 'common law' no longer exist. Second. courts including the Su. Ct. are not allowed to interpret any law, especially the Constitution, in such a way that, incorporates or creates that which does not exist. That is reserved to the people and the Amend. process. Example; the State courts or Su. Ct. has no authority to change the meaning of the word 'commerce' from large scale trade of goods between states to include fee for service. The State Courts or the Su. Ct. can not change the meaning of the 'conrtract clause' to mean something less than unburdened freedom to contract and the obligations there of.
Any and all government contracts, with unions, is a violation of the 'contract clause' specifically because it puts a burden on non-union members to which they have not agreed or submitted to by their own free will.
Last, this has little to do with the public employees in Wisconsin and collective bargaining rights. Collective bargaining is not a 'right.' It is a privilege created by statute that can be, given or taken away, by a simple vote of the people. The 'imbalance of power' is that public employees negotiate with other public employees for the mutual benefit of each other. It would be better described as a 'quid pro quo' and not a negotiation of any kind in the true sense of the word.
Published in the ADN as a commentary.