The Common Law #4

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