Indexing the South Dakota constitutional conventions: a 21st century solution to a 125 year old problem.

• Author: Gilbertson, David

Constitutional issues are legal issues of the first magnitude. "The Constitution is the mother law. It is not the baby. Statutes must conform to the Constitution, not vice versa." (1) The South Dakota Supreme Court construes the provisions of the South Dakota Constitution in accordance with what "we conceive to be its plain meaning." (2) This is not always possible, however. As Justice Oliver Wendell Holmes observed, constitutional provisions must be allowed some play "for the joints of the machine." (3) If the meaning of a term or provision is unclear, it is appropriate for the Supreme Court to look at the intent of the drafting body. (4) Sources that may provide the sometimes elusive "intent of the drafting body" are the Constitutional Conventions of 1883, 1885, and 1889.

Statehood did not come easy for South Dakota. Prior to 1889 many attempts to achieve statehood failed. Undaunted, those in Dakota Territory supporting statehood pressed on, leaving behind a record of their proceedings that is relevant to the South Dakota legal profession today.

According to George W. Kingsbury in his monumental work, History of Dakota Territory, (5) a bill was introduced in the United States Senate in 1872 to divide Dakota Territory into two equal sections. It did not pass. In 1877 the Senate defeated a bill seeking to divide Dakota Territory along the 100th meridian of longitude.

The statehood movement continued to gather momentum. In 1883 a Constitutional Convention drafted a constitution that voters approved. The

Senate passed a bill allowing formal admission of South Dakota, but the House failed to vote before Congress adjourned in March of 1885. The journal of the 1883 Constitutional Convention survives and is found in History of Dakota Territory, Volume II, and South Dakota Historical Collections, Volume XXI. (6) This journal is merely a record of the official acts of the convention. The underlying debates which would have explained the reasons for the actions taken or not taken have not survived. Thus, we know what the drafters did in 1883 but unfortunately not "why."

In 1885 a second Constitutional Convention was called. The convention adopted a constitution, but Congress rejected statehood. Nevertheless, the 1885 convention remains important for several reasons. It kept a detailed record of its proceedings and its debates. (7) The 1885 convention framed the issues for debate in the 1889 Constitutional Convention and the constitution produced in 1885 was the genesis for the constitution adopted in 1889. (8) As an example, the Bill of Rights in the 1889 Constitution originated in the 1885 Constitution. (9) More specifically, Article VI, section 5 of South Dakota's Constitution, which guarantees freedom of speech and the press, was originally drafted in 1885 and remains the same today.

An abbreviated territorial convention was held in 1887. As before, the goal was statehood. The most interesting part of this convention is that had it succeeded, there would be one state called "Dakota" since the convention abandoned the idea of splitting Dakota Territory into two states. This plea failed to move Congress. (10) This convention neither debated a constitution nor adopted one. Thus from a legal research perspective, this proceeding provides no assistance and remains but a footnote in history.

In the United States Senate, Senator Benjamin Harrison of Indiana championed statehood for South and North Dakota. To the delight of the pro-statehood forces in the Dakota Territory, he was elected President of the United States in 1888. With his Republican party firmly in control of both Houses of Congress, statehood was virtually assured.

A Constitutional Convention was called in 1889. Due to political events of national and territorial importance, those in Dakota Territory who favored the admission of only one state joined with those who had been advocating the admission of two separate states. (11) The 1889 Constitutional Convention adopted a constitution that was approved by the voters on October 1, 1889. On

November 2, 1889, President Harrison signed a proclamation admitting South Dakota to the Union. The proceedings and debates of this convention, for the most part, also survive.

The ink was hardly dry on the "new Constitution? when the South Dakota Supreme Court first referred to the 1889 Constitutional Debates in the 1899 case of Jamieson v. Wiggin. (12) Because the debates were not published at this point, the Court had to borrow the original copy from the Secretary of State. (13) Possibly for this reason, early South Dakota case law infrequently cites the constitutional debates.

The publication of the debates would obviously enhance their significance. (14) In 1907 the South Dakota Legislature authorized the publication of the debates of the 1885 and 1889 Constitutional Conventions. The original 1885 and 1889 debates were not indexed. The 1907 legislation, however, directed the State Librarian to "edit and prepare [the debates] for publication." (15) As a result, each of the two-volume sets of the 1885 and 1889 Constitutional Debates is indexed. However, these indexes do not lend themselves to legal research; they focus mainly on the speaker rather than on the subject matter of the speech. Since significant portions of the debates deal with the mechanics of the conventions rather than substantive issues, indexes focusing on the speaker inhibits legal research. (16)

In recent years the bench and bar have found the Constitutional Debates invaluable in ascertaining the intent and meaning of certain constitutional clauses. Access to these debates has been limited because the one thousand sets printed and "substantially bound in half sheep binding" (17) in 1907 have become scarce. Since 2006, I have arranged with the State Bar of South Dakota that the 1883, 1885, 1887, and 1889 proceedings be accessible to subscribers of Dakota Disc. This computer based research tool, however, has been inhibited by the 1907 insufficient index for the 1885 and 1889 conventions and the lack of any index for the 1883 convention.

The indexes which follow are an index for the Constitutional Conventions of 1883, 1885, and 1889 arranged by subject matter and by article of the constitutional document. They were initially compiled by University of South Dakota law student David Barari. Justice Steven L. Zinter and I edited them. While these indexes are not perfect, they are a significant improvement over what existed. Absolute accuracy was not possible because parts of the convention journals are missing which create gaps in the accompanying indexes as well. (18) At other times the delegates' debates were not clear enough to allow for definitive indexing. Nevertheless, it is clear that what we do possess is accurate. The 1883 convention used the services of a "Recording Secretary" for its daily journal. The 1885 and 1889 conventions were transcribed by four stenographic reporters. The new indexes constitute a vastly improved research aid for those wishing to research the Constitutional Debates.

With the assistance of better indexes to these Constitutional Conventions we have an improved view of government being created. The debates were vigorous at times and not all the votes were unanimous. The delegates were very aware of the importance of the task they were undertaking. History has shown since 1889 that they were correct in that view. "This is significant as the object of constitutional construction is 'to give effect to the intent of the framers of the organic law and of the people adopting it.'" (19)

It is clear from the debates that the delegates did not borrow wholesale a constitution from another state. In specific instances they did borrow certain provisions such as Article VI, section 15, dealing with imprisonment for debt, from other states. (20) On the other hand, some provisions such as Article VI, section 3 and Article VIII, section 16, prohibiting public support of religion and sectarian instruction, are unique to South Dakota and its Constitutional Conventions. (21)

In recent years, the Supreme Court has studied the constitutional history found in the proceedings of the Constitutional Conventions to analyze the evolution of the eminent domain clause now found in the South Dakota Constitution Article VI, section 13 (22) and the requirements for election as a Legislator found in the South Dakota Constitution Article III, section 12. (23) Constitutional history has also been useful to ascertain that certain proposals were offered to the Constitutional Conventions and were ultimately rejected. (24)

Many of those who were in leadership positions at the Constitutional Conventions and spoke frequently on important subjects were to become the governors, legislators, and judges of the new State of South Dakota. (25) The importance of their views has been relied upon by the Supreme Court in later cases:

The views of Judge Corson [in authoring McClain v. Williams, 10 SD 332, 73 N.W. 72 (1897)] are particularly enlightening as he served as a delegate to the 1885 Constitutional Convention and actively participated in the debate on the Bill of Rights which includes Article VI [section] 20 of our Constitution, and at the 1889 Constitutional Convention served as an officer and delegate. (26) The views of Alphonso G. Kellam, another original Justice of the South Dakota Supreme Court and delegate to the 1883, 1885, and 1889 Constitutional Conventions have also proven important:

Considering the very active participation in the 1883, 1885 and 1889 constitutional conventions by one Alphonso G. Kellam of Brule County, who also served as one of the three members of this court from 1889 to 1896, the likelihood of misapprehension of the purpose to be served by the state constitutional provisions by either the same A.G. Kellam, the then presiding judge of this court, or either of the other two members of the court is too remote to be seriously...