The 1885 and 1889 Constitutional Convention debates.

Author:Chicoine, Catherine Lucie Zumpano
Position:South Dakota
 
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  1. INTRODUCTION

    As examined in a previous article, (1) the South Dakota Constitution has a somewhat convoluted beginning. The Constitution, adopted when South Dakota achieved statehood, was the product of three constitutional conventions. Each of the proposed constitutions produced by subsequent conventions built upon the work of previous conventions. Therefore, determining the intended meaning of provisions in the 1889 Constitution may require a consultation of debates related to similar provisions in previously proposed constitutions.

    Consulting the constitutional debates, however, is a somewhat narrowed-focus endeavor. Most of the drafting work of the conventions was done in committees, but the debates and proceedings of those committees have largely not been preserved. Consequently, the only recorded debates are those that occurred at the convention at large. However, those convention's debates are not organized well or clearly regarding topic or subject matter.

    Fortunately, the South Dakota legislature had the foresight to preserve and publish the convention debates from 1885 and 1889. An act entitled Act Providing for the Publication of the Debates of the Constitution Conventions of 1885 and 1889, enacted by the Legislature of the State of South Dakota of 1897, directed the state librarian to edit and prepare the 1885 and 1889 debates for publication. (2) The Act directed one thousand sets of the debates to be printed; it also directed the Secretary of State to supply six sets of the debates to the state library, the Supreme Court library, and the law school at Vermillion. (3)

    The South Dakota Constitutional Convention Debates from 1885 and 1889 do not include the debates from the individual committee meetings. Rather, they include the debates only from when the convention gathered as whole. However, the majority of the work at the Constitutional Conventions occurred in committee meetings. The 1885 Convention had over thirty committees. This included: the Committee on State, County, and Municipal Indebtedness; Committee on Bill of Rights; Committee on Education and School Lands; Committee on Seal of State; Committee on Prohibition; Committee on Mines, Mining, and Water Rights; Committee on Federal Relations; Committee on Arrangement and Phraseology of the Constitution; Committee on Rights of Married Women; Committee on Seal of State, Coat of Arms, and Design of the Same; and Committee on State Institutions and Public Buildings, Including Penitentiaries and other Reformatory. (4)

    Much of the text of the debates constitute such matters as opening prayers, clerical issues regarding the printing of reports about the debates for the public and ensuring that delegates had accurate copies of the constitution, and such procedural issues as roll call and delegate requests to be excused for various personal and professional reasons. In general, the conventions passed with no or very little debate on the vast majority of the reports and suggestions made by the committees. Only when something was controversial or of great importance did the convention as a whole debate the issue. Considering the importance of their task, delegates at the 1885 and 1889 Constitutional Conventions engaged very few issues in significant or extensive debate. Instead, much of the details of the various constitutional provisions were obviously ironed out in the committees, and the Convention delegates as a whole gave great deference to the work of the committees.

    Although the Convention debates focused on specific issues and recommendations brought forth by committees to be considered by the delegates as a whole, some general themes did emerge throughout the 1885 and 1889 debates. During the 1885 and 1889 debates, for instance, multiple delegates expressed the tension between the competing interests of the smaller towns and the bigger cities, as well as the former's concerns that the interests of the rural areas of the state would be overcome by those of the bigger cities. The clearest expressions of these concerns are seen in the debates over the apportionment of the Judicial Circuits. (5) Such concerns are also found in lesser-debated issues such as Legislative and Municipal apportionment and the Seat of the Supreme Court. (6) Yet another prominently debated issue involved the delegates' constant concern and awareness of keeping the work of the Conventions within the bounds of the Omnibus Bill. (7) This can be seen in the extensive debates over Women's Suffrage, the role of the 1885 Constitution in the 1889 Constitution, the Preamble, and the Australian Ballot. (8)

    As a way of examining the concerns and controversies that existed during South Dakota's constitutional formation, this Article attempts to summarize and highlight the areas of significant debate at the 1885 and 1889 conventions.

  2. 1885 CONVENTION DEBATES: THE MILITIA

    The Committee on Military Affairs submitted a report to the 1885 Convention that stated, "[T]he said militia organization shall be required to assemble in camp of instruction and drill not less than two or more than four days annually." (9) This report caused significant debate among the delegates. (10)

    In defense of the committee's report, Delegate Taylor of Lincoln argued that:

    [S]o far as a camp of instruction and drill is concerned, that it is the practice and the law of the various states of this Union for the militia to assemble in camp of instruction each year, and from two to four days is the usual time. I hope the Convention will leave that section which has been reported by the committee, deeming it for the best interests of the militia organization, if we are to have one.... the reason the committee have adopted the language ... is that they have thought it proper to go through, so that it shall not be subject to the will of future Legislatures to destroy this militia organization which the Territory had now put upon its feet.... (11) Delegate Huntley observed that the trend in other states was to govern the work of militias more completely and definitively within the Constitution. He noted:

    [A]s we have examined constitutions and studied the subject of militia, we find that the tendency of all the new constitutions that have been adopted and the old ones that have been improved, is to make an outline of the work more complete and more definite, and the constitution of the state of Pennsylvania has limited more perfectly and indicated more clearly what the Legislature shall do and shall not do.... I hope it will be adopted. (12) Delegate More of Beadle, in supporting the report, thought it was necessary to provide for a well-drilled militia. He stated that:

    The people can be trusted to defend us, but to defend us efficiently the yeomenry must be drilled. Let us have this section and let us have every other section of the article, and then let us have such legislation as may be necessary to give us an efficient, thoroughly drilled militia. (13) Conversely, Delegates Lowthian, Kellam, and Neill argued that the details regarding the Militia should be left for the legislature to handle. (14) According to Delegate Lowthian, "[T]he Legislature shall provide by law for the enrollment, uniforming, and discipline of the Militia; and in a later section it tells how they shall do it. It is a matter purely Legislative. I favor the motion to strike it out." (15) Delegate Dollard expressed a similar concern about the Convention overstepping its bounds into legislative territory. As he stated:

    Mr. Chairman, it seems to me this section is radically wrong. It makes it obligatory on the Legislature to provide for the militia.... I have no objection to authorizing the Legislature to provide for the militia, but I do object to making it obligatory upon the Legislature to provide for it in every particular.... (16) Also voicing opposition to the report, Delegates Wright and Moody expressed concern about the inadequacy of a maximum of only four days of annual training. (17) As Delegate Wright of Brookings stated:

    I shall feel constrained to vote to strike out all that occurs in Section 2, beginning with line 11, "and the said militia organization shall be required to assemble in camp of instruction and drill not less than two or more than four days annually." I think that no militia can be drilled efficiently in four days. I think that the section 2 down to line eleven makes all necessary provision, and the Legislature will thus be enabled to fix the time which shall be necessary for the militia to remain in camp, under instruction. If it should be deemed necessary that they remain more than two days they can do so, or more than four days they can do so; while under this provision they can remain, under the most urgent and pressing circumstances, only four days. Therefore I feel that I am required to support the motion striking out after line eleven. (18) In addition, Delegate Moody of Lawrence said that the matter should be left "entirely within the Legislature." (19) He would not limit the legislature's power; he would not "compel these volunteer organizations, these volunteer companies, to assemble in camp and remain there but four days." (20)

    Ultimately, deference to the legislature prevailed, and the Convention voted down the Committee on Military's report. Thus, the clause requiring the militia to drill two to four days annually was not included in the 1885 Constitution. (21)

  3. PROVISIONS FOR PUBLIC TAKING OF PRIVATE PROPERTY

    At the 1885 Convention, the Committee on the Bill of Rights proposed an amendment that read, "Private property shall not be taken for public use or damaged, without just compensation, as determined by a jury." (22) In proposing this amendment, the Committee considered particular concerns about the power of railroads to take property from private citizens. (23)

    Delegates opposed to the amendment argued that condemnation proceedings should not require a jury trial. (24) Delegates...

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