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The South Dakota Supreme Court has declared the South Dakota Constitution the "mother law," the supreme law of the land. It has been so since South Dakota became a state in 1889. Considering the lifestyle at the time of its adoption, it has proved to be a remarkably resilient document.

The day before Abraham Lincoln was sworn in as President in 1861, the Dakota Territory was created. In reality, it was but a few huts clinging to the north shore of the Missouri River. However, by the next year, Dakota Territory managed to hold its first Territorial Legislature and established an organized government. The public printer of the Session Laws of the First Session of the Territorial Legislature, who must have been an optimist of the first order, declared: "This vast terra incognita is already undulating with the breath of civilization, and the time cannot be far distant when its noble prairies and fertile valleys must yield up their wealth to the restless, aggressive, and all-conquering energy of the American people."

The South Dakota Constitution did not come into being easily as the State of South Dakota itself traveled a long and winding road to come into existence. Failure after failure in the national political arena was its early fate. The Founding Fathers of South Dakota through the territorial period were largely Union veterans of the Civil War. They had endured defeat after bloody defeat at Bull Run, Fredericksburg, and Chancellorsville. Like their now-martyred President, they overcame this string of defeats and were ultimately victorious.

Through the 1870's and 1880's, the primary political movement in the southern half of Dakota Territory was for statehood. During this period, the population saw a large increase. Joining the Union veterans and their families were a substantial number of immigrants mainly from Northern Europe. The pro-statehood forces saw these newcomers as a positive change and the movement became one of inclusion rather than exclusion.

In 1883, a constitutional convention convened at Germania Hall in Sioux Falls to draft a constitution. This draft was a well-written document that provided a foundation for future drafts. When it and subsequent drafts were considered by the voters, pre-election copies were distributed to the electorate not only in English, but also in German, Norwegian, Russian, and "Scandinavian." Despite its approval at the polls, the 1883 constitution became a casualty of the political wars in Congress.

In 1885, a second constitutional convention was held. It resulted in a document that, for most purposes, would become the South Dakota Constitution. It was approved by the voters by a substantial margin. However, the fate of the 1885 draft fared no better than the 1883 draft. An abbreviated constitutional convention in 1887 also resulted in failure.

By 1889, the national political winds had changed. A fourth constitutional convention was held. Using the 1885 draft as a blueprint, it prepared the 1889 draft and presented it to the voters. It was overwhelmingly approved and, with subsequent Congressional authorization, South Dakota became a state with a valid constitution.

While great attention is paid to our national Constitution, virtually none is given to the South Dakota Constitution. Yet, this constitution provides South Dakota's citizens with numerable rights in excess of those provided by the national Constitution. Examples include that real property cannot be taxed in excess of its actual value. A quality education at public expense is provided to all children. South Dakota state government cannot spend more taxpayer money than it raises in revenue. Gambling and consumption of alcohol are authorized on a limited basis. Judges are elected at regular intervals rather than appointed for lifetimes. The number of terms one may serve in the state legislature is limited.

Since 1889, the South Dakota Constitution has been amended from time to time. The most significant change occurred in 1972 when the article dealing with the judiciary was completely re-written and approved by the voters. The bulk of the document, however, remained the same.

Were the draftsmen of the 1883, 1885, and 1889 documents to return to us today, they would probably be stunned with the lifestyle now enjoyed by our citizens. They would also be stunned and, no doubt, proud that a document they authored for the creation of South Dakota's state government nearly 150 years ago was written well enough to provide their descendants with a workable set of rules for operation of a state government in our current era. Cries for wholesale revision or a new document are non-existent. Well done, South Dakota's Founding Fathers.

Fortunately, we largely know what these delegates intended because, along with the constitutional text itself, they left behind journals of the debates of the three conventions. This is significant. The courts of this state rely on the actual text of the constitution rather than attempting to keep legal and constitutional concepts "up with the times." Near the end of his distinguished career on the United States Supreme Court, Justice Hugo Black best summed up this jurisprudence:

I realize that many good and able [persons] have eloquently spoken and written, sometimes in rhapsodical strains, about the duty of this Court to keep the Constitution in tune with the times. The idea is that the Constitution must be changed from time to time and that this Court is charged with a duty to make those changes. For myself, I must with all deference reject that philosophy. The Constitution makers knew the need for change and provided for it. Amendments suggested by the people's elected representatives can be submitted to the people or their selected agents for ratification. That method of change was good enough for our Fathers, and being somewhat old-fashioned I must add it is good enough for me.

Santayana once said that those who ignore the lessons of history are doomed to repeat them. Key to a successful interpretation of our constitution is the study of not only the actual text but the reasons for its enactment and what the drafters meant. Not enough has been done in this area and although the decisions of the South Dakota Supreme Court with increasing frequency refer to such analysis, this book is a welcome addition to an understanding of a document that, in significant ways, directs how we live our lives.

Chief Justice David Gilbertson
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Title Annotation:South Dakota Constitution
Author:Gilbertson, David
Publication:South Dakota Law Review
Date:Mar 22, 2014
Previous Article:Dedication.
Next Article:The rising role of state constitutional law: an introduction to a series of articles on the South Dakota Constitution.

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