The Common Law #8

The Common Law #8
(The following column originally ran in a January, 2009 edition of the Moody County Enterprise.)

The Common Law:
I Got My Rights!

By N. Bob Pesall 
Attorney At Law 
Flandreau, SD 

As South Dakotans, we take great pride in our constitutional rights. They fascinate us. This is odd because, as a group, we only have a vague notion of what those rights are. We don't really know when they apply, and we tend to forget that we have both federal and state constitutional rights. But, we know that our rights are important, and we fiercely defend them. When properly invoked, we know that our constitutional rights can keep us out of a lot of trouble. Because of this, and because “rights” are really interesting things, I will dedicate the next few columns to explaining our constitutional rights, where they come from, how to use them. 

So where does the whole notion of rights come from? A few hundred years ago, some European philosophers noticed that most people were not living particularly happy lives. They blamed the government. (Some things never change.) Anyway, the philosophers tried to figure out what people would do with themselves if the king wasn't constantly bossing them around. They called this imaginary situation a “state of nature.” After much debate, the philosophers concluded that there are some basic things that people naturally do, and that governments should not interfere with. 

For example, in a state of nature, people would think, speak, and worship however they saw fit. They would naturally defend themselves and their families from threats, predators, or other people. They would naturally build private spaces for themselves to live in. The philosophers went on to spend a lot of time arguing about the scope of these rights, and a host of others. 

Shortly thereafter, their ideas were embraced by the founding fathers of our own country, and enshrined in our national Bill of Rights. The First Amendment protects our rights to free thought, free speech, and free worship. The Second Amendment protects our right to defend ourselves and our families. The Third Amendment protects the sanctity and privacy of our homes. Ever since that time, South Dakotans, and citizens of every other state, have also spent a lot of time arguing about the scope of these rights, and a host of others. In fact, this is what our national and state Supreme Courts spend much of their time doing. 

One thing we tend to forget when discussing constitutional rights, however, is the fact that our national constitution is not the only source of those rights. We also have state constitutional rights. In addition to our national Bill of Rights, Article Six of our state constitution provides twenty-seven sections chock full of new and interesting constitutional rights which only apply to South Dakotans. 

This is where things get really interesting. Some of the rights in our State constitution are word-for-word copies of the rights in our national constitution. Other rights are not. In addition, even if the same words are used in both constitutions, they may mean something completely different. Finally, there are a bunch of rights that only appear in the State constitution, some of which have never even been examined in court. 
For example, one of the first rights in our state constitution is that of “acquiring and protecting property.” We, as South Dakotans, have a constitutional right to protect our property. This right is not in the national constitution. There are no dusty old national Supreme Court decisions to help us figure out what it means. The last time it came up in our State Supreme Court was 1932. At that time, the State Supreme Court held that this constitutional right did not protect a farmer from prosecution when he shot pheasants out of season (even though they were damaging his crops.) Apart from not shooting pheasants, however, the meaning of this right is entirely open to debate. This is due in large part to the fact that these rights are rarely exercised. 

True, most of us do not have as much spare time to spend thinking about rights as did those 18th century European philosophers. However, we must remember that our rights are not the solid rocks we imagine them to be. If we do not use them, they will fade away. To prevent this, we should all try to have a basic grasp of our rights, both as citizens of South Dakota and of the United States. If we don't know what our rights are, we cannot exercise them, and we may as well not have them.

The foregoing column is written for informational purposes only, and does not constitute legal advice. 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