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

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)