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The Common Law #4
(The following column originally ran in the December 5, 2007 edition of the Moody County Enterprise.)
The
Common Law:
My
Fellow South Dakotans
By
N. Bob Pesall
Attorney
At Law
Flandreau,
SD
On
November 2, 2007, South Dakota celebrated it's 118th
birthday. Perhaps “celebrated”
is too strong a word. To tell the truth, I suspect that few
citizens in our fair state actually noticed. At my office, I brought
in some doughnuts, and suspended the state flag from one end of the
coffee room, to mark the occasion. The other folks in my office
complex were pleased with the treats. They engaged in a discussion
about the history of South Dakota which lasted almost 3 minutes, and
then went on with their lives.
At
this point in history, our state's birthday is little more than a
curiosity. The Fourth of July gets all the press. This may not be
entirely fair. According to the 14th Amendment to the
Constitution of the United States, we are all “citizens of the
United States and of the State wherein [we] reside.” Sure, no wars
were fought over the admission of South Dakota into the union. Our
first governor, Arthur Mellette, was undoubtedly a great man, but he
was not President Washington. Are we paying too little attention to
our own affairs, and too much attention to the District of Columbia?
On the other hand, are we really so different from the nation as a
whole that our “Statehood Day” bears any celebration at all?
This
question is easier to answer if we sit back for a moment and think
about all of the stuff we learned in our high-school civics class.
We have a national constitution, and we have our own state
constitution. We have a national Supreme Court, President, and
Congress, and we have our own state Supreme Court, Governor, and
Legislature. We have a national Bill of Rights, and we have Article
VI of our state constitution. The same basic parallels are present
in every other state in the Union. Outside of these basic parallels,
however, things start to get interesting.
In
South Dakota, our state constitution guarantees us rights and
privileges that the national constitution does not. The same may be
true for the other 49 states, as each state's constitution is a
little bit different. This means that we in South Dakota have
different constitutional rights than the citizens of Minnesota,
Arkansas, North Dakota, and every other state. Sometimes these
differences are small, sometimes they are substantial.
Consider,
for example, our federal 5th Amendment right not to have
our property taken for public use without just compensation. This is
a right which made quite a bit of news recently, when cities like New
London, Connecticut, started condemning peoples homes in order to
make room for shopping centers or other private businesses. The
people faced with the loss of their homes took the matter all the way
to the national Supreme Court. Unfortunately for the homeowners,
when the Supreme Court of the United States looked at the issue, it
determined that economic development was a legitimate public purpose.
Thus, condemning private property in order to re-sell it to another
private party, in the hopes of spurring economic development did not
violate anyones 5th Amendment rights.
The
same would probably not be true in South Dakota, however. The
Supreme Court of South Dakota has consistently applied our own state
constitutional protection against the taking of private property for
“public good” more broadly. Our State constitution requires not
only a public benefit, like economic development, but also public
use. Thanks to this extra layer of protection the Citizens of South
Dakota enjoy far greater protection for their property than citizens
of Connecticut.
The
same distinction appears when we consider other constitutional
rights, like the right to bear arms. It even extends to more mundane
questions like which system of taxation is the most “fair and
balanced.” Are These differences a good thing? Shouldn't we have
the same rules and rights for everybody in this country, regardless
of the state in which we live? To be sure, this would make life
easier. There would be no more patchwork of rules which vary from
state to state. Everyone would know what their rights and
obligations were, wherever they went.
On
the other hand, there is a certain practical reality that we must
face. If we tried, would all 50 states ever be able to agree on what
exactly those rights and obligations should be? Is it realistic to
expect that the People of New Hampshire and the people of
Massachusetts would ever agree on the scope of the right to bear
arms? Would the people of South Dakota and the people of California
ever come to an agreement on what system of taxation is really fair?
As
citizens of South Dakota, we have a great deal in common with our
brethren in the other 49 states. But we also have some very
important attributes which set us apart. Our values, our beliefs,
and our traditions are different from those of the rest of the nation
in subtle but important ways. We haven't declared Statehood Day a
“legal” holiday yet, but maybe we should.
The
foregoing column is written for informational purposes only, and does
not constitute legal advice. Statehood day was recognized as a
working holiday in South Dakota in 2001. For more information on the
State and National takings laws, see Benson v. State, 2006 SD
8, and Kelo v. City of New London, 124 S.Ct. 2655, decided in
2005. N. Bob Pesall can be reached at P.O. Box 23, Flandreau, SD
57028, by telephone at (605) 573-0274, or on the web at
http://www.pesall.com
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