To understand why the legislature refused to empower Human Rights Commissioner Drew Phoenix last week, and why that move is worth reflecting on, we should remember a court case that was decided years before Drew was even born. Trop v. Dulles was the first time the U.S. Supreme Court declared that a portion of the U.S. Constitution “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.”
That assertion, that society is in fact continually maturing, and that the Constitution should be continually reinterpreted so as to keep up with society’s maturity, lies at the heart of the recent confirmation hearings involving Drew Phoenix. Let us set aside for a moment the question of whether or not society is in fact maturing, our communities are becoming more perfect, more safe, and crime is slowly but surely being eradicated, year by year. Let us assume for a moment that all of that is true.
The question that immediately arises is which of the three branches of government is empowered to change our state law to reflect these changes in society? In the case of Drew Phoenix we have three possible answers that reflect each of Alaska’s three branches of government: 1) The Alaska Human Rights Commission, made up of appointees that fall under the executive branch, 2) The Alaska Supreme Court, made up of appointees that fall under the judicial branch, or 3) Alaska’s elected lawmakers, who comprise the legislative branch (Hint: We refer to them as “lawmakers” because under our current form of government all lawmaking power is reserved exclusively to public officials who have been directly elected by the people).
That last distinction is a very important one. Law puts limits on personal freedom and can bankrupt you and send you to prison if you transgress those limits. Because of this, no just law can be made without the consent of those who will be bound by it, either directly or through their elected representatives. If you look back far enough in American history, you will see that we once fought a bloody 7-year war over this very issue. The power to create laws and taxes is too dangerous to be wielded by unelected officials.
Heck, it’s bad enough when it’s wielded by the elected officials we’ve already got. If they wield that power against Alaskans for the benefit of special interests, at least we have the ability to elect a new governor and a new legislature next year. Without that right, we end up with masters whom we have no power to challenge, and no right to question—Like, say, the members of the Alaska State Human Rights Commission.
As unelected heads of a quasi-judicial agency, commissioners on the Alaska State Human Rights Commission are entirely out of reach of the public, and serve longer terms than the governor. These are simply the facts. The question the legislature was asked to decide last week was whether or not members of the commission should also have the power to remake our state laws. When you are voting on whether or not to confirm an appointee who has been openly seeking to join the commission for that very purpose, it is quite difficult to separate the individual from the plan they are pursuing.
Drew Phoenix has been a tireless advocate for increasing legal rights for the LGBT and transgender community. As a dedicated social justice warrior, Drew worked for 4 years for the ACLU, and a further 3 years for Identity, Inc., whose mission is “to advance Alaska’s LGBT (lesbian, gay, bisexual and
transgender) community through advocacy, education and connectivity”. Drew was appointed as a human rights commissioner shortly after leaving Identity in September.
As a political activist, Drew has long promoted changing state law to make Lesbian/Gay/Bisexual/Transgender a protected class. And there is a bill in the legislature today (Senate Bill 72) which would do exactly that. But efforts to pass such laws in Alaska, and in Pennsylvania and many other states, have consistently failed year after year. Having failed to achieve such changes through the political process, LGBT activists are now attempting to circumvent the lawmaking process by seeking appointment to human rights commissions and, once there, simply “reinterpreting” the law as though they had been successful in changing the law through the legislature.
During the legislative confirmation process, Drew explained that while state law has “not been interpreted yet to include certain things”, i.e. gender identity, “the commission would be within its authority to” add them, and it should. It could do so by redefining the meaning of the word “sex” to not only include sex, but also to include any form of gender identity or “expression”, just as the Pennsylvania Human Relations Commission did last month.
If your legislators permit it, this will soon be enshrined as the new frontier of lawmaking, and it will be done by unelected officials whose names most Alaskans will never know. If those unelected officials happen to be members of your political party, or are committed to causes that you personally care about, you may be tempted to see this as a good thing. Certainly in the short term, it can appear that way. Perhaps you applauded when the EPA redefined puddles of water as “waters of the United States” and granted itself the power to regulate them. But there is a terrible cost to be paid anytime we empower unelected bureaucrats to rewrite law and then enforce the laws that they have rewritten.
That cost is consent. Where is the opportunity for Alaskans to refuse consent to the new laws being rewritten and continually reinterpreted by judges and bureaucrats, whom Alaskans did not elect, and the public is often unable to remove from office? Referendums permit the public to reject bad laws, but they only apply to new state laws that the legislature actually passes. As messy and dysfunctional as modern politics often is, it still preserves within it the right for each of us to forcefully object on Election Day when elected officials become too closely tied to special interests, and lose sight of what is best for Alaska.
Americans lost that right once, long ago, and the result was a violent, 7-year war to regain it. On this Memorial Day Weekend, the prospect that Americans might ever have to relive such a chapter makes even the most unpleasant aspects of politics seem a blessing in comparison.
Thank your legislators for voting in a small, but tangible, way to preserve your right to question and to put limits on the power of a bureaucracy that already runs too much of our lives. And while you’re at it, ask them if they wouldn’t mind returning more of that freedom to you next time they are in Juneau. 668,000 Americans died so that you could enjoy it. May we be grateful this Memorial Day Weekend for those who fought, and those who died, and the price they paid so that succeeding generations might continue the American experiment in self-government.
(For more from the author of “Alaska’s Drew Phoenix Serves as a Warning: Conflict Is Inevitable” please click HERE)