The 55 members of Alaska’s Constitution Convention gathered in Fairbanks in November 1955 to draft the foundation document for a new country. Before they could begin, however, each member took oath declaring that they were not members of the Communist Party or supported any organization advocating the overthrow U.S. government.
The 75 day that followed saw the delegate debate Alaska’s state government. Sometimes, they asked themselves how Alaska would be managed in a nuclear war, or if Alaska were invaded by Soviet Union.
They were encouraged by Congress to include a clause prohibiting someone from holding public office if it is a group that supports the overthrow U.S. government.
This month, 67 year after the Fairbanks delegates met, this clause will be ruled in court for first time.
The clause was written in the final days of the anticommunist fear of 1950s. However, it will be challenged against Rep. David Eastman (R-Wasilla). Eastman was accused of violating the clause through his lifetime membership in Oath Keepers, an right-wing militia group , whose founder was convicted for sedition in connection to the Jan. 6, 2021 insurrection at U.S. Capitol.
Randall Kowalke, a Matanuska–Susitna Borough resident filed the lawsuit challenging Eastman’s eligibility. He stated that his goal was to determine the limits of the clause.
“I believe the key point is: What’s our tolerance level? What will we allow our candidates and representatives to do? Do we allow communists full-blown? Jihad people? Fascists? Particularly those who support the overthrow our government. “I guess it’s now that we know,” he stated this summer.
Kowalke’s attorneys are asking Anchorage Superior Judge Jack McKenna for a declaration that Eastman is part of the OathKeepers. Oath Keepers advocates the overthrow U.S. government and that the disloyalty clause in the constitution prohibits Eastman holding office.
Kowalke’s lawyers have provided documentation proving Eastman is a founding lifetime member of the group. They have been assisted by the sedition conviction last week, but it is not clear if the judge will decide that the group’s leader views are held.
The third point is the most difficult. Kowalke’s lawyers will need to prove that the disloyalty provision does not violate federal and state free speech guarantees.
Judges have overturned sedition laws passed in other states or by the federal government for decades. Legislators have rewritten them.
Eastman will be replaced in the state House if they are successful on all fronts. Republican Stuart Graham was the 2nd place finisher in the fall election.
They could fail to do so, and the disloyalty provision could be rendered inapplicable, much like the Alaska Constitution’s prohibition on gay marriage being invalidated by a court order.
Dec. 8 will see attorneys argue in court over whether the case should go to trial. The trial will begin the week following a ruling in favor of the plaintiffs. A decision is possible by the middle or end of the month.
Hawaiians define Alaskans disloyalty as “alaskanian disloyalty”.
Kowalke filed his suit in July against Eastman, and the Alaska Division of Elections. The Division is accused of having improperly approved Eastman’s candidacy. The court filed last month. State attorneys for the division traced the disloyalty clause in the Alaska Constitution to a 1948 visit by a U.S. Senator to Hawaii during a push to become a state.
Hugh Butler, a Republican hailing from Nebraska, stated in a memo published the next year that his visit “leaves us with the deep conviction…that international revolutionary communism currently has a firm grasp on the economic, social, and political life of the Territory of Hawaii.”
Butler believed that strikes by the International Longshore and Warehouse Union in 48 and 49 were responsible for his belief.
Although his claims of communist infiltration were not supported, Butler was the chair of the Senate Committee in charge of American territory. His belief led to Hawaii’s defeat at the time.
His committee amended the Hawaii statehood bill in 1950 to include a clause that stated that no one who supports, aids, or belongs to any party…which advocates the overthrow of the government by force or violence shall be eligible to hold any state office.
The Hawaii Constitutional Delegates met later in the year to insert a clause into their constitution which copied almost every word of the congressional language.
Alex Goodall is a University College London lecturer and historian. He has written a history about America’s efforts against subversion.
He stated that by 1947, the Soviet Union’s fear was at its peak. The Truman and (later), Eisenhower administrations investigated thousands of government employees in search of possible disloyalty.
He stated via email that potential subversive organizations could include leftist revolutionary groups such as the Communist Party USA, as well as right-wing organisations like the Nazi Party or the Ku Klux Klan.
These investigations led to the dismissal of thousands of gay men, women and children from their jobs as they were deemed security threats.
Goodall stated that even though Second Red Scare Fears were in decline by the 1950s, it would still seem logical to view the Alaska Constitution as a continuation these practices at state level.
The Hawaiian statehood was delayed by the U.S. House during the 1950s due to opposition. Statehood bills were introduced repeatedly and then defeated. One in 1955 stated, “Any constitution for Alaska and Hawaii must include a disloyalty provision as a condition to statehood.”
Although the bill was never enacted, and the later Alaska Statehood Act did not include it, Fairbanks’ constitutional convention delegates believed that the disloyalty clause was necessary.
It is not mentioned in the minutes of the convention. Delegate Victor Rivers stated during debate “is an antisubversive subsection, which is required as we understand it, among the required clauses.
The language used today by the delegate was the same as the one used by Hawaii’s drafters back in 1950.
However, Hawaii has made changes to its language since then. Anne Feder Lee, a book analyzing Hawaii’s constitution, stated that during the 1968 constitutional convention, “delegates acknowledged that U.S. Supreme Court rulings had declared this language unconstitutional as it violated the rights of association and belief guaranteed under the First Amendment to U.S. Constitution.”
Hawaiian delegates were considering removing the section completely at the time but decided to modify it that year and again during a convention in 1978.
Before being disqualified, the modern languages requires that someone be convicted of trying to overthrow or conspiring to overthrow government.
John Eastman, a former Trump advisor, offers testimony
Eastman has not been charged or convicted of trying to overthrow government. He flew to Washington, D.C., before the Jan. 6 insurrection.
Goriune Dudukgian, one of Kowalke’s attorneys, said that the case isn’t about Eastman being sent to jail.
“This case is not about criminal liability. We are not trying to send Rep. Eastman into jail. We are not asking him to renounce the Oath Keepers. He said that it was only a question of eligibility to serve under Alaska Constitution.”
Although the Division of Elections is a defendant in this lawsuit, it isn’t taking a position on the issue. Dudukgian’s and Kowalke’s attorneys claim that the division did not enforce the constitution when it certified Eastman eligible for office without verifying any of the nearly two dozen challenges.
Through attorneys from the Alaska Department of Law, the division stated that it does not have the authority to investigate loyalty claims.
State attorneys stated that “no statute provides any guidance or process for the division in determining a candidate’s loyalty towards the government.”
Kowalke’s lawyers disagree and claim that the state constitution demands an investigation. Their preliminary decision was in their favor, but it could be modified after further argument.
The case centers on Kowalke’s challenge against Eastman. Eastman is represented by Joe Miller, an former two time candidate for the U.S. Senate.
Miller offered several preemptive defenses. These included that the court does not have jurisdiction, that Kowalke is not entitled to file a lawsuit and that he did not state a valid claim.
Before the Dec. 8 summary judgement hearing, Kowalke’s lawyers attempted to discredit each defense. If Kowalke wins the hearing, the case will move to trial which is expected to last at most a week.
John C. Eastman is a former Trump advisor and constitutional attorney who supports Eastman’s defense. They are not related.
John Eastman, written expert testimony noted that Alaska’s disqualification clause and Hawaii’s before it resemble a 1940 law called the Smith Act. This was to punish sedition prior to America’s entry in World War II.
1951 Communist Party officials who were convicted under the act appealed against it to the U.S. Supreme Court. The justices ruled in favor the act’s legality.
Six years later, 14 months after Alaskans ratified the draft constitution, the Supreme Court partially reversed itself. It stated that free speech was protected unless it presents a “clear danger”
Donna HavertyStacke, a Hunter College professor of history, noted that the 1957 Smith Act decision “defanged” the Smith Act. It was necessary to prove that the speech resulted in imminent action.
The Alaska Constitutional Disloyalty Clause was approved in 1956 along with the rest. It arrived at the same time that public views on free speech were changing.
She said, “Right at this moment when things are beginning to thaw,”
Julian Bond was an activist against the Vietnam War, and the Georgia Legislature rejected his seat in 1966. One of the arguments against Bond was the notion that his statements were in violation of his oath of defending the Constitution of the United States.
Citing the First Amendment, , the U.S. Supreme Court ruled in Bond’s favor. Eastman stated that this suggests that an identical argument should prevail.
John Eastman wrote that “Representative Eastman is currently a member of the Oath Keepers under these precedents” and that the First Amendment protects him both from criminal indictment as well as exclusion from office.
Kowalke’s lawyers are using a different approach. They wrote that the disloyalty clause was similar to the Alaska Constitution’s requirements regarding residency and age for legislators.
They wrote that Alaska’s disqualification clause for disloyalty is “no more or less than an extra constitutional qualification for officeholding” and should be understood accordingly.
Kowalke’s lawyers suggested that the court should not interpret Alaska’s disloyalty provision as prohibiting anyone from abstractly speaking about the overthrow or destruction of organized government. They argued that the disloyalty clause should be read as requiring advocacy for “concrete action to overthrow the government”, citing language from the 1957 Supreme Court case.
They wrote that “When judged against the standard, the words or actions of the OathKeepers go well beyond what the First Amendment protects speech.”
Whatever decision Judge McKenna makes this month, it is possible to appeal to the Alaska Supreme Court. If the case is ruled on First Amendment grounds, it could be sent to federal court, and possibly the U.S. Supreme Court.
One action could stop the whole thing. Eastman can no longer be considered a disloyalty violator if he leaves the Oath Keepers or disavows membership.
Dudukgian stated that if he completely and unambiguously disavows membership, and he states, “Given Rhodes’ conviction, I’m terminating any association I have in this organization,” then it will probably go away.”
“I don’t see that happening. We’d need to examine it and make a decision if it happened.
The Alaska Beacon originally published this story. It is republished with permission.
