“The organic law of a great commonwealth”: the framing of the South Dakota constitution
Legal scholars have criticized the “poverty of state constitutional discourse” caused by its limited historical depth and by the absence of historical research into the people and events surrounding the framing of state constitutions. (1) James Gardner has found a “general unwillingness among state supreme courts to engage in any kind of analysis of the state constitution at all.” (2) A better understanding of the origins of state constitutions, according to Gardner, would advance of the “goal of creating in every state a vigorous, independent body of state constitutional law capable of standing by itself as a basis for constitutional rulings by state courts.” (3) Studying the unique political history of a state, in other words, will foster the development of state constitutional law. When analyzing a “state’s constitutional identity,” scholars have focused on the “relationship between a constitution and the corresponding polity,” which “must be grounded in an identifiable state community, an entity whose inhabitants share distinctive ideals, customs, and traditions.” (4) The analysis of a state’s unique political history can shape the development of a state’s constitutional law. As Wisconsin Supreme Court Justice Shirley S. Abrahamson once noted, “All the differences in our state constitutions are not accidents of draftsmanship. Some of these differences reflect differences in our tradition.” (5)
The importance of historical analysis in the proper interpretation of the South Dakota Constitution has been recognized by the South Dakota Supreme Court. (6) When construing a constitutional provision, the South Dakota Supreme Court has held that “a court may look to the history of the times and examine the state of things existing when the constitution was framed and adopted.” (7) Given the importance attached to the origins of state constitutions, this article seeks to promote a more complete understanding of the history and context of the framing of South Dakota’s constitution.
On July 4, 1889, the weather in Sioux Falls was fair and clear. (8) On the 113th anniversary of the Declaration of Independence, Sioux Falls was home to 12,000 people, close to the population of Boston at the time of the American Revolution. (9) During the 1889 Fourth of July celebration, Sioux Falls “entertained the largest crowd of people ever assembled at any one place in Dakota.” The railroads ran special trains which transported an additional 9,000 people into the city and horse-drawn carriages rolled into the city carrying another 6,000 people. (10) At sunrise, the city woke to the thunder of a forty-two gun salute fired by the Sioux Falls Light Artillery company, the clang of the city’s church bells, and the wail of steam whistles. At 10:00 a.m., a holiday ceremony commenced which featured speeches, music, an invocation by the Episcopalian Bishop, the reading of the Declaration of Independence, and the singing of “Hail Columbia.” The festivities also included a parade, a baseball game at Base Ball Park, a band contest, tub races on the Big Sioux River, a greased pole climbing contest, sack races, a greased pig contest, a three-legged race, bicycle races, wheel-barrow races, horse races, and a grand balloon ascension featuring a man who would leap from the balloon basket in a parachute, all part of what the St. Paul Pioneer Press called a “monster celebration.” (11) During the day, the balloon ascension had to be delayed due to high Dakota winds. When finally attempted, the wind caused an errant spark which caused the $450 balloon to go up in smoke, “a kind of ascension not fully satisfactory to the 5,000 spectators.” (12)
At noon, after they had marched in the parade, the seventy-five delegates of the South Dakota Constitutional Convention gathered at Germania Hall, which was built in 1880 by the local Germania Verein (meaning “unite”) to “foster art, to awaken the mind to liberty, to create a love for all that is good and beautiful, to encourage social intercourse and to aid in preserving the fruits of German culture.” The hall was festooned with American flags and red, white, and blue bunting and the delegates’ names and home counties were printed on a piece of white board in front of their designated desks. County maps were posted on the walls and parliamentary rules, statistical data, and volumes of Dakota history were available on every delegate’s desk. (13) Four large stars hung on the walls designating the four new states, including South Dakota, which were on the verge of entering the Union. The prayer which opened the convention was given by Reverend Stratton of the First Congregational Church in Sioux Falls. The blessing of the Congregational Church, the original Puritan church in the new world, symbolized the transmigration of New England institutions and culture, often after a period of evolution in the Midwest, to Dakota Territory. Judge Alonzo Edgerton, who was elected president of the convention, thanked the convention for the honor and “expressed the joy which all felt that the rights so long denied and due the people of this great commonwealth were about to be realized.” After they adjourned, many of the delegates proceeded to the baseball games, the various races, and a prohibition meeting. (14)
The 1889 constitutional convention in Sioux Falls represented the culmination of a decade’s work toward statehood for Dakotans. As the Great Dakota Boom unfolded during the 1880s and farmers filled the prairies of eastern Dakota, the territory became ever more ripe for statehood and self-rule. A long tradition of American republicanism undergirded the movement for statehood. For a decade, the advocates of statehood had been frustrated by a national political environment which stymied statehood and by the defects in the territorial system of governance. At long last, after constitutions written in 1883 and 1885 failed to spur Congressional action, in 1889 they were able to frame a constitution and join the Union as a state.
II. A MACHIAVELLIAN MOMENT ON THE MIDDLE BORDER
The pioneers who settled Dakota Territory during the Great Dakota Boom of the 1880s tapped a deep well of republican social thought and practice. (15) They drew, in particular, upon the political culture of the Midwest and New England from which many of them came, the symbols of American democracy, and old world antecedents. The intense memories and political battles of the Civil War provided another source of political meaning and another stream of republican ideology. The settlers’ embrace of republican ideals involved a commitment to personal virtue and patriotism, praise for agrarian life, the development of independent and educated citizens who would wrestle with political questions in the public square, and criticism of corruption.
In recent decades, historians have intensely studied republicanism. In a classic treatment, J.G.A. Pocock described the revival of classical republican ideas in early modern Europe as a “Machiavellian moment,” a designation which highlighted the role of the famous Florentine Niccolo Machiavelli in the resurgence of republican thought. (16) After this revival, republicanism was embraced by reformers in England and by English colonists in America. (17) Although the definition of republicanism is not always precise in these studies, certain elements are well-established and are discernible in Dakota Territory. Generally, republicans worried about promoting the moral virtues necessary to produce citizens who could preserve and wisely govern a republic. True republican citizens would overcome simple self-interest and an attraction to extravagance and luxury and instead promote the “common good” and the interests of the “commonwealth.” By promoting personal virtue, dedication to the commonwealth, and the maintenance of a stable social order, republicans would avoid the corruption which undermined previous republics. Although republicanism became more intertwined with the workings of the market after the American Revolution and therefore distinct from its classical forms, it remained a powerful influence in American political culture throughout the 19th century. (18)
The intensity of the civic spirit among the settlers of the Great Dakota Boom drew on the republicanism of the American Revolution and its subsequent nineteenth century manifestations. The Civil War intensified the meaning of republicanism, especially for Northerners who fought to preserve the American commonwealth and who made up the bulk of Dakota settlers. By the 1880s, public frustration with political corruption and concerns about the changes wrought by industrialization increased public consciousness of the need to pursue republican ideals. Aggravation at the absence of local control inherent in the territorial system and the corruption of territorial officials made adherence to republican principles even stronger in Dakota Territory. As Donald Pickens and John Patrick Diggins have noted of the nineteenth century American West in general, the settlers’ political “activities did vaguely resemble the formulation of the polis, ‘confirming a kind of Machiavellian moment with the opening of each new territory.'” (19)
The republicanism extant during the American Revolution evolved in certain ways throughout the nineteenth century to become the republicanism prominent during the settlement of Dakota Territory. Even if classical republican references were not as common in nineteenth century rhetoric as that examined by intellectual historians during the Revolutionary period, Jean Baker has noted, “there were other ways to preserve beliefs.” She notes, in particular, that “republican behavior” was promoted through schools and political parties and that “[w]hite male Americans who never gave speeches, framed resolutions or wrote pamphlets daily practiced and through their public behavior, observed its tenets.” Baker found that republicanism “survived not so much in the rhetoric of the citizenry as through various institutions and forces that conveyed the importance of an organic community larger that its discrete parts, along with the conviction that the moral basis of American politics rested in civic obligations, mutually undertaken.” (20)
The political culture of republicanism, in other words, persisted long after the American Revolution. Rowland Berthoff observed that “[w]hatever the fate that intellectual historians have found republicanism suffered as an articulate ideology, the underlying popular mentality has clearly persisted.” (21) Unlike the classical formulation of republicanism, which focused on land-ownership as essential to the preservation of republican institutions, in the nineteenth century republicanism came to include merchants and workers as worthy republicans. “Jefferson’s classical doubts about the civic virtue of merchants were being forgotten,” Berthoff notes, and market-oriented Americans also claimed the “old-fashioned, fixed virtues of civic attachment and personal independence.” Although some observers were concerned about the absence of republican virtue among the growing number of industrial workers, the act of voting, which was increasingly venerated and celebrated, and education could ensure that workers became good republican citizens. (22) Physical labor alone could instill republican attitudes as the “manly virtues of the republican citizen were practically narrowed down to the hard work, saving, and reinvestment that were now touted as the best means for individual success and for the economic progress of the country.” (23) Vice and idleness became the signs of “unrepublican behavior” and free enterprise, long after the Revolution, became the “heart of the republican ethic that dated from the Declaration of Independence.” (24) To counter the machinations of machine bosses and politicians, reformers would periodically arise to “stamp out corruption” in traditional republican fashion. (25) The settlers of places such as Dakota Territory, according to Donald Pickens, “were republicans in cultural values long before being labeled so by historians.” (26)
III. REPUBLICANISM IN DAKOTA TERRITORY AND ITS SOURCES
The influence of republican thought remained strong throughout the nineteenth century and even intensified during the Great Dakota Boom of the 1880s, when it seemed threatened by other developments in American life. (27) Many of the attributes of the American frontier that Frederick Jackson Turner identified in his famous speech in 1893 were basic elements of the republican tradition. (28) As political leaders in Dakota Territory pushed for statehood, they consistently invoked the republican tradition. Congregational minister Reverend Joseph Ward called for an end to federally controlled territories and for Congress to promote self-governing states which were “truly republican, and in entire harmony with the spirit that created the present Union.” (29) When the pastor of First Congregational Church of Sioux Falls gave a prayer at the 1883 Constitutional Convention in Sioux Falls, he said that the convention’s work would “redound to the glory of the commonwealth.” (30) At the 1885 Constitutional Convention, Chief Justice Edgerton, who served as president of the convention, said he was honored to “be a member of a convention called to form the organic law of a great commonwealth” and to write a “republican” constitution and that he put his faith in the “patriotism” of national leaders to act on Dakota’s statehood request. (31)
The frequent invocation of the term “commonwealth” and the emphasis given to the maturity of the Dakota citizenry reflected the continuing strength of republicanism during the 1880s. General William Beadle emphasized that the Dakota settlers of the 1880s “were intelligent, self-respecting citizens, used to governing themselves, trained to hold meetings, to organize movements and direct events” and were creating “a commonwealth of high purpose” after the more unruly era of territorial politics. (32) Doane Robinson, a territorial lawyer, editor, and later historian of Dakota, emphasized that the “[i]ntelligence, education and morality” of the citizenry generated a “genuine pride in the commonwealth and its accomplishments.” (33) The statehood advocates’ petition to Congress emphasized the components of republican citizenship in Dakota by highlighting the high rates of literacy, the numerous schools, the thriving newspapers, and the many churches which demonstrated the “intelligence and morality of the people” of Dakota Territory. (34)
The origins of republicanism in Dakota Territory can be traced to the Old Northwest and New England, which supplied most of the pioneers who settled in the territory. Since republicanism originated in Europe, England in particular, before it provided the ideological underpinnings of the American Revolution, references to the European republican tradition were also extant. Citations to English history and the tradition of “Anglo-Saxon liberty” were not uncommon among Dakotans, who recognized the migratory chain of ideas and institutions which preceded settlement. The English folkways of New Englanders made their way to the Midwest, the origin of most Dakota settlers, where they “exerted their genius in the perpetuation of orderly towns with schools, churches, and colleges as nearly like those of New England as they could achieve.” (35) The Yankees who migrated to the Midwest, according to Susan Gray, imposed “New England values and institutions as the template of all American culture” and sought to promote and preserve social order through the Yankee emphasis on small churches, common schools, and local government. (36) The Yankees and the borderland Southerners did not lose their “older sectional loyalties” once they arrived in the Midwest, and any unity between them was shattered by the sectional crisis of the 1850s. (37) The Yankee-Midwestern identity intensified during the Civil War and shaped the consciousness of many of the settlers who migrated to Dakota in the post-war years.
The influence of English history and institutions, which traveled by way of New England and the Midwest, were readily identifiable in Dakota Territory. Dakota town names, for example, included Rutland, Wentworth, Andover, Ipswich, Salem, Springfield, Hudson, Groton, Stratford, Brentford, Bristol, Chester, Columbia, Yale, and Woonsocket. (38) The operative law in Dakota Territory remained the precedents of the English common law and Dakota jurisprudence relied heavily on Eastern and Midwestern judges and case law. (39) Hamlin Garland remembered that his boyhood education in Dakota spurred his affection for Scott, Byron, Wordsworth, Shakespeare, and a “long line of English masters” with the help of the McGuffey readers made mandatory in Dakota schools. (40) Sir Walter Scott, who published Ivanhoe in 1819 and whose works were consumed widely in the Midwest, was honored by a group of Dakota settlers who named their town Ivanhoe. (41) General Beadle, who is remembered for promoting common schools, was well known for repeating the lines of the English classics. Beadle County, named for the general, even included townships such as Lake Byron and Carlyle. (42) The first school teacher in Dakota was a descendent of the Puritan founder William Bradford and one Dakotan noted a strong contingent of Yankee teachers: “We have got a real nice teacher. she is a full bludded Yankey from Maine. I like her first rate. there are nine schollars in all they are most all Yankeys. we have a regular Yankey time of it.” (43) Another pioneer woman in Alexandria wrote of her study of English history: “Am trying at odd moments to wade through the early hist of England, am so anxious to read the later hist, that the first I take more from as sense of necessity than choice.” (44) Reflecting on the statehood process years later, General Beadle said the “great freedom loving race of Teutonic people occupying Northwestern Europe” inherited Greek and Roman culture and that in “England all these elements best united,” in contrast to the “evil” influences which persisted in continental Europe. Of England, Beadle wrote, the “whole body of her people’s high desires, or her Magna Charta, and, later of her revolution, was transplanted to America.” The Mayflower Compact, the early colonial legislatures, and local self-government in New England ultimately led to the Declaration of Independence, the Constitution, and the Northwest Ordinance. The ultimate state of South Dakota, Beadle believed, was “a growth originating in the principles of English institutions planted in the several colonies and in the race instinct for local self government.” (45)
The homogeneity of the Midwest, according to Louis B. Wright, could be traced to the “Anglo-Saxon tradition, the tradition of English law, the English language, English literature, and British religion and customs.” (46) This English tradition and culture was filtered through New England and the Midwest, the two regions which were the greatest source of immigrants to Dakota Territory. In southern Dakota at the time of statehood, 83% of native born Dakotans hailed from the Midwest and 14% came from North Atlantic states. Only 1.5% came from the South. (47) John Unruh noted that the majority of Dakota immigrants came from Midwestern states, especially Wisconsin, Iowa, Illinois, Minnesota, Ohio, Michigan, and Indiana. (48) A contemporary study found that southern Dakota’s population was “homogenous” and that its people were “mainly of American birth, natives of New York, Ohio, Michigan and the States of the Mississippi Valley.” (49) One newspaper also estimated that 35,000 people alone came to Dakota Territory from Wisconsin. (50) Another territorial newspaper, the Grant County Review, reported that nearly every train leaving Mason City, Iowa included “five to a dozen cars loaded with emigrants bound for South Dakota.” (51) The movement of Wisconsinites and Iowans into Dakota Territory comports with Frederick Jackson Turner’s conclusion that most of the “men who built up the West beyond the Mississippi” originally “came as pioneers from the old Northwest, in the days when it was just passing from the stage of a frontier section.” Turner cited the example of Senator Allen of Nebraska, who was born in Ohio, moved to Iowa, and then moved to Nebraska after serving in the Civil War. (52)
The Midwest, which sent so many settlers to Dakota Territory, was crafted directly by the American revolutionaries. While the delegates to the American Constitutional Convention were drafting a constitution in 1787, the Confederation Congress passed the Northwest Ordinance, which determined the political and economic structure of the Midwest. (53) Congress sought the creation of new republican states in the Ohio Valley and the preservation of the area for “orderly and industrious settlers.” (54) The Northwest Ordinance sculpted the Old Northwest by prohibiting slavery and primogeniture, promoting public education, preserving religious freedom and the common law tradition, ensuring jury trials and the right of habeas corpus, and fostering stable governments, which “proved decisive in shaping the region’s political and social orders.” (55) A report by Thomas Jefferson was the basis of the Northwest Ordinance. The report advanced Jefferson’s goal of “exporting republicanism” to the new territories of the Northwest, which were required to adopt republican constitutions. (56) The political debates within the new states of the Northwest Territory took place within the parameters set by the republicanism of the American Revolution and focused on the republican themes of liberty, virtue, and anti-corruption. (57) “The political leaders of the Old Northwest in the early nineteenth century,” according to one study, “remained wrapped in the mantle of republicanism.” (58) While the area south of the Ohio River was influenced by Southern states which “favored the expansion of the plantation civilization” and the maintenance of aristocracy and large estates, the area north of the Ohio River was governed by the republican mandates of the Northwest Ordinance. (59) The Northwest Ordinance, written by the American founders, shaped not only the Midwest, but in turn Dakota Territory. John D. Hicks noted that there was “little about the civilization that has grown up at the forks of the Ohio that has not been reproduced on a greater or lesser scale along the bend in the Missouri.” (60) The republicanism of the Midwest, which increasingly identified itself as an independent region after the Civil War, migrated with the Midwesterners who set out for Dakota Territory. (61)
The influence of the Midwest is readily apparent in Dakota Territory in the form of settlers, law, cultural institutions, and a commitment to republicanism. General Beadle noted the “similarity of experience” of the Midwestern settlers of Dakota and their “familiarity with certain systems of institutions, customs and laws” which shaped the “character of the Commonwealth, laws and institutions” of Dakota. (62) Dakota Territory was thus fundamentally shaped by a transplantation of Midwestern culture. Herbert Schell’s history of Clay County, for an example, notes that the settlers of the formative period hailed from Michigan, Wisconsin, Ohio, Indiana, Illinois, and Iowa. (63) Malcolm Rohrbough similarly noted these “structural continuities” between the settlement of the Midwest and the lands further west. The same culture and institutions thus “stretched across time and place from the first to the second American West.” (64) Most of the settlers of Dakota Territory came from the region to the East and, according to H. Wayne Morgan, “wished to reproduce the settled communities they left behind.” (65)
In addition to the derivative influences of England, which traveled to Dakota Territory via New England and Midwestern settlers, there was a also a more direct European influence in the form of immigrants. In addition to promoting the migration of New Englanders and Midwesterners, boosters in Dakota Territory also welcomed European immigrants. (66) A large majority of these immigrants were Norwegian or German, the latter coming from both Germany proper and German settlements in Russia. General Beadle noted that half of the Americans in the territory were from Wisconsin, New York, Iowa, Minnesota, and Michigan and that they were joined by a “large and excellent” German and Scandinavian population. (67) One subsequent governor boasted of the large number of Dakota pioneers who could “trace their lineage to these liberty-loving, God-fearing countries.” (68) The critical cultural touchstones for Dakota were the Midwest, New England, and Northern Europe, especially Germany and Norway. These three sources of culture are demonstrated by the first three governors of South Dakota: Arthur Mellette, who was born in Indiana; Charles Sheldon, who was born in Vermont; and Andrew E. Lee, who was born in Norway.
IV. THE POLITICAL CULTURE OF DAKOTA TERRITORY
The settlers of Dakota consistently embraced the symbols and figures of the American republican heritage in their choice of historical allusions and political imagery. The American founders, for example, received constant attention. Reverend Joseph Ward invoked “the principles so strenuously observed in the founding of our nation” and cited the freedoms enjoyed by early American colonists. (69) General Beadle said no Americans exceeded the Dakota settlers “in loving reverence for the Fathers of the Republic.” (70) In 1886, Arthur Mellette linked himself to the cause of the Founders when he denounced federal officials for “denying the right of self-government to a half million American citizens.” (71) That same year, Judge Gideon Moody denounced Dakota Territory’s treatment as a “colony” in the same fashion that the British Crown once treated Americans. He added that this treatment triggered a “Declaration of Independence,” a sentiment in keeping with some of the more strident advocates of statehood. (72) A resolution adopted by the 1888 GOP convention in Dakota declared that the federal government “exercised a tyranny over this territory” contrary to the “principles of the founders of the republic.” (73) The same convention claimed one of the causes of the American Revolution as their own: “We are taxed without representation.” (74) South Dakota towns such as Jefferson, Madison, and Mt. Vernon also carried on the legacy of the founders. In 1889, Yankton sponsored a major celebration of the one hundreth anniversary of Washington’s inauguration, replete with speeches, sermons, and a parade featuring the National Guard, the local firemen, the Grand Army of the Republic, the Modern Woodmen, and many other civic groups. (75)
References to the American founders were coupled with praise and admiration for the federal Constitution. Ray Allen Billington noted that for the American of the late nineteenth century the “Constitution was his Holy Grail.” (76) In Dakota, statehood leaders organized three full-scale constitutional conventions to draft a state constitution and consistently praised the wisdom of the federal organic law. Members of the “Dakota State League” signed a petition saying “I pledge my sacred honor” (an obvious Civil War reference) to the adoption of the Sioux Falls Constitution written in 1883. (77) In 1887, the advocates of statehood celebrated the constitution they had drafted by commemorating the anniversary of the federal Constitution completed in 1787. At the time Dakotans were writing their constitution during the 1880s, the American historian George Bancroft completed his famous multi-volume history of the United States. This magnum opus included two volumes entitled The History of the Formation of the Constitution of the United States. Bancroft’s celebration of the American Constitution bolstered its reputation even more and, along with his historical writings in general, he helped foster and promote the American democratic faith after the Civil War. (78) Faith in the federal Constitution and American democracy “pervaded the intellectual climate” in which Bancroft crafted his famous history of the United States. (79)
While the American founders and the Constitution were powerful images in Dakota, the most immediate, most powerful, and most personal cultural reference point was the Civil War. One U.S. Senate report noted that it was “safe to assert that in no State or Territory can there be found so large a proportion of the people who fought the battles of the Union.” (80) As a pioneer recorded in his memoirs, a large portion of Dakota settlers “carried the musket to the front in the darkest days of the rebellion.” (81) Arthur Mellette said that many Dakota settlers had been “scarred and maimed in defense of the Union which they helped to preserve.” (82) Service to the Union in the Civil War could be the measure of a man in Dakota Territory. When candidates for political office were analyzed, their attractiveness grew if they had been a “good soldier” in the war, had “enlisted as private at first call for troops,” or had been “severely wounded and taken prisoner at 1st Bull Run.” (83) The Union war veterans’ memories of their youthful battles and their camaraderie was strong. One “old soldier” who came to Dakota from Ohio would frequent the Grand Army of the Republic meetings in Huron with another veteran. A young man who witnessed this interaction noted the war-time connection and wrote of the “strong bond of friendship between those men that time could not erase.” (84) As Oliver Wendell Holmes, Jr. said of the Civil War generation, “in our youth, our hearts were touched with fire.” (85) From 1865 to 1900, five of the six men elected president were Union veterans and in 1890 there were still a million living Union war veterans. (86)
The adoption of Civil War monikers, reliance on the imagery of the Civil War, and respect for the Civil War cause and its leaders was ubiquitous in Dakota Territory. In and around Potter County, towns took the names Union, Appomattox, Gettysburg, and Shiloh and the early newspapers included the Potter County Union and the Potter County Republican. (87) In addition to the creation of a Lake Sheridan and a town of Sherman, Union County was named for the Civil War cause, Lincoln County was named for the assassinated President, and McPherson and Meade Counties were named for Union generals. (88) When the memorial for Ulysses S. Grant was unveiled in Woonsocket in 1885, businessmen were asked to “drape their places of business and cooperate in rendering the occasion as impressive as may be” and to close their businesses.” (89) Civil War veteran Melvin Grigsby, when running for territorial delegate in 1888, made dramatic use of a Civil War analogy when addressing the prevailing economic concerns. He declared that the problem of monopoly was a “danger greater than the danger of African slavery” and recalled that “African slavery once deluged the land in blood.” (90)
Allusions to the Civil War were especially common in the debate over statehood since they were both bound up in notions of popular sovereignty. While hoping for a reasonable compromise to a standoff during Dakota’s battle to join the Union, Arthur Mellette offered the dark reminder that “Kansas struggled to statehood through blood.” (91) Judge Gideon Moody similarly noted that the unjust treatment of Dakota paralleled an earlier era when the “plains of Kansas were made to bleed with the blood of our martyrs.” (92) Governor Gilbert Pierce, when criticizing advocates of the policy of declaring statehood despite the absence of congressional approval, did so in the name of the “thousands of [men who] fought and shed their blood” for the Union during the Civil War. (93) When calling for an end to territorial status, Major McCallum called on Dakotans to “throw off political thralldom” so that “we will no longer be slaves.” (94) In Congress, supporters of statehood for Dakota openly “waved the bloody shirt” when protesting efforts to stall its admission to the Union. One Republican asked if …
20,000 scarred veterans now residing in Dakota, who marched through
the burning sands and miasmatic swamps of the South to put down a
wicked rebellion, stand with bared heads and beg long of their old
opponents in arms to be admitted to the Union they helped save? We
say again, then thousand times no! Men of =61 to 8, stand upon your
own rights as freemen … even if Dakota must remain out of the
Union until an uprising of the free men of the state drives the
rebel yell from the halls of Congress. (95)
Amidst the pervasive memories of the Civil War the cult of Abraham Lincoln lived on in Dakota Territory. Lewis Bloodgood, for one, kept the flame alive. Bloodgood, who was from Iowa, served in the Union Army during the Civil War and was wounded in an attack on Mobile. Bloodgood, like so many other Midwesterners, moved from Iowa to Dakota Territory in 1880 where he homesteaded near Huron. (96) During the war, Bloodgood and his comrades told the fellow soldiers in his regiment they were traitors for voting for McClellan in 1864 and proudly reported that Lincoln won the regimental balloting soundly: “Old Abe received 432 votes, Little Mc 32.” (97) After Lincoln’s assassination, Bloodgood wrote that “I heartily wish our honest old President could have lived to have fully recognized the great end for which he had so long toiled, but he has gone to his long home.” (98) Bloodgood’s son recalled his father’s discussions of his war service:
[W]hen the news of Lincoln’s assassination came through, the
soldiers cried like babies. They all loved this man whose great,
tender heart bore the sufferings of the soldiers. Father said no
one except Jesus was ever loved by so many people and he hoped that
his children and their children would love their country and revere
Abraham Lincoln just as their Grandfather Bloodgood did. (99)
In the 1870s, there was even a proposal to split off the Black Hills from the territory and call it “Lincoln” and also a proposal to divide the territory in two, with the southern half becoming “Dakota” and the northern half becoming “Chippewa,” “Lincoln,” or “Lincoln Territory.” (100) In 1889, the Union Veteran Club of Chicago reminded Dakotans that the “men of 1861-65 made statehood possible for Dakota” and requested that one of the Dakotas be named “Lincoln.” (101)
The prominence of the Civil War in Dakota culture affected politics and policy. In 1887, the territorial assembly passed a law which paid for the burying of “Soldiers, Sailors or Marines, who Served in Union Army During the War of the Rebellion” when their relatives could not afford the burial. (102) The same territorial assembly passed a law giving a preference in public works projects to “honorably discharged Union soldiers and sailors of the late war.” (103) Old soldiers and their families were also afforded generous advantages over other settlers under amendments to the national Homestead Act adopted in 1870 and 1872 and these privileges “unquestionably were responsible for a large influx of settlement into the West” and “were widely heralded by the railways,” who promoted the migration and settlement of veterans in the West. (104) The influence of the Civil War veterans was directly felt through the Grand Army of the Republic lodges, which grew dramatically during the years of the boom and included many territorial leaders. In 1884 alone, the number of GAR posts in the territory increased from thirteen to sixty-two and grew to one hundred by the time of statehood. (105) The GAR reunion in Aberdeen in September 1885 typified the grandiosity and patriotic spirit of such occasions and featured reveille, a grand parade, music, prayers, speeches by the governor and other officials, the reading of a long paper entitled “The Life, Service and Character of General Grant,” the singing of “Marching Through Georgia,” and a grand campfire. (106) In 1889, the territorial legislature created a Dakota Soldiers’ Home in keeping with the wishes of a recent encampment of the Dakota department of the GAR. (107) In keeping with their support of Civil War veterans, Dakota political leaders were also quick to denounce President Cleveland’s veto of Union soldier relief passed by Congress. (108)
The political identity of many of the Midwesterners who would move to Dakota Territory was molded by the Civil War and served as another stimulant for republican ideology. The election of Lincoln in 1860 was viewed as a “regional triumph” and marked the “moment in which the Midwest emerged as the preeminent region of the nation.” (109) By fighting a different region with different cultural practices and by coming to realize all that they shared in common, the “Civil War enabled large numbers of Midwesterners to imagine themselves as citizens of a regional community defined largely by the middleclass residents of small towns from Ohio to Iowa and beyond.” (110) The Civil War helped focus the energies of Midwesterners on larger republican ideals and avoid petty squabbles. (111) The Civil War, David Noble concluded, “marked the triumph of midwestern democracy.” (112) This triumphant Midwestern culture of republicanism migrated along with the settlers to their new Dakota homesteads.
V. DAKOTA TERRITORY’S CONSTITUTIONAL CONTEXT
In keeping with the political culture of Dakota Territory, the constitutional conventions in the territory during the 1880s were steeped in the precedents and symbols of the American democratic tradition. The delegates ritually invoked the Revolution, the Founders, and past American heroes and glories. The delegates even had intricate debates over the meaning of the Northwest Ordinance of 1787 and the treaty with France granting Louisiana to the Americans. Perhaps more than any other experience, the delegates invoked the American Civil War, in which so many of them had done their duty for the Union. At the end of the 1885 Constitutional Convention, the delegates even sang “Marching Through Georgia” to celebrate their work. (113) With the Sergeant at Arms’ “fine baritone ringing out the old war song,” the other delegates joined in “with a sympathy which none but a soldier can feel, and which was apparent in many glistening eyes and quivering lips.” (114) Statehood advocate Hugh Campbell, when speaking to a campfire at the Grand Army of the Republic post in Yankton, was compelled to first honor those “scattered survivors of that band of young men and boys, who twenty years ago shouldered their muskets to fight for the flag and the preservation of the union.” (115) Campbell combined the historical precedents of the Revolution and the Civil War, opining that the statehood advocates were “animated by the same spirit which actuated the men of ’76 and the men of ’61.” (116) At an organizational convention in Huron in June 1883, B.G. Caulfield invoked the “old moorings of the constitution” and the “ancient customs of this republic” in the face of Congressional opposition to statehood for Dakota. (117) At the 1885 Constitutional Convention, Judge Edgerton hoped the delegates possessed the same wisdom as the framers of 1787, but doubted that ascending to such heights was possible. He said “it may not be said of us as it frequently is of the framers of the constitution, that they builded better than they knew,” but observers might “be able to say ‘They builded as well as they knew.'” (118)
In addition to drawing on the American democratic heritage generally, the constitution-makers quite specifically pursued the ends of republican theory. In particular, they insisted upon patriotism and service to the public interest of the commonwealth, instead of private scheming and profiteering, and obsessed about ending corruption and promoting agrarianism. The chief goal of the convention delegates was to subordinate personal interests to the “common interest and general welfare” and to adhere to the duties of virtuous and civic-minded statesmen. (119) Judge Edgerton, during the 1885 Convention, said the delegates must draw on “judgment and patriotism,” “prudence and discretion,” and the “light which experience can furnish us and all the judgment and wisdom which nature and education have endowed us with” when writing the “organic law of a great commonwealth.” (120)
Edgerton’s use of the term “patriotism” indicates the importance the delegates assigned to republicanism and public-spiritedness when framing the Constitution. The summons for the 1883 Constitutional Convention cited the support for statehood by “a quarter of a million patriotic, liberty loving, law abiding, God-fearing people” who were motivated by “pure and simple patriotism.” (121) During the debate at the 1883 Constitutional Convention, delegate W.W. Brookings said “there must be patriotism in the work–not partisanship.” (122) Partisanship, political posturing, and self-interestedness, conversely, were viewed as unpatriotic. One statehood advocate saw the successful 1883 Convention as “strongly non partisan, public spirited and patriotic.” (123) When discussing a prominent visitor to the convention, Judge Gideon Moody said that some feared “politics was his governing motive” but discovered that “it was patriotism rather that swelled his breast.” (124) Statehood promoters hoped for a future when the age of territorial “intrigues,” “log rolling,” “lobbying,” “partisanship,” and “political factions” could be transcended by the patriotic citizens of a self-governing Dakota commonwealth. (125)
When they met in their constitutional conventions during the 1880s, the delegates expended their greatest energy trying to eliminate corruption in the future state government. Weary of carpetbag territorial appointees and their collaboration with railroad interests, the delegates pushed for stringent limitations on outside influences on the legislature. In keeping with the longtime republican obsession with eliminating political corruption, they succeeded in incorporating several anti-corruption elements into the fundamental law of the territory. They hoped a responsible state government controlled by locally elected citizens would bring an end to the despised territorial system, which caused “lasting and remediless injury to the institutions and future of the commonwealth.” (126)
The statehood movement also embraced the republican fondness for agrarianism. Fundamentally, the statehooders believed that securing self-government would give them greater control over their economic destiny. The leaders of southern Dakota could then promote an agricultural economy based upon the work of small yeoman farmers, instead of the more industrialized model of the northern section. The north was dominated by “speculators and large holders,” unlike the south, which consisted of “small farmers, small merchants and mechanics and all that class of industries which grow up in a country, consisting of homesteaders, pre-emptors and actual resident farmers.” In the north, the large-scale Bonanza Farms were controlled by out of state owners, were worked by employees brought in from city “slums” with “no stake in the country,” and were dependent on the Northern Pacific Railroad, which strongly influenced politics in the north. To escape this corrupt system, to live as “independent men,” and to enjoy the fruits of small-scale yeoman agriculture, statehood was necessary. (127) The call for the 1883 Constitutional Convention flatly stated that northern Dakota was in the “hands of large capitalists and extensive operators and speculators” in contrast to the “homeholders and steady going citizens” of the south: “No commonwealth could be satisfactorily managed wherein two elements so diverse might be joined.” (128) Throughout the constitution-writing process of the 1880s, the voices of such agrarian concerns were consistently heard.
The influence of Christianity was as strong as the influence of the American democratic tradition, republican ideas, and agrarianism. At a June 1883 conclave called to debate the merits of a constitutional convention, Episcopalian minister Melancthon Hoyt, the “oldest pioneer clergyman of Dakota,” blessed the work of the convention and called on God to bless conventioneers so that “they may glorify Thy holy name and perpetuate the best interests of the citizens of this territory.” (129) The call for the 1883 Constitutional Convention cited the support of a “God-fearing people” for statehood and self-governance. (130) On the first day of the 1883 Constitutional Convention, J.N. McLoney of the First Congregational Church in Sioux Falls prayed that “Thy perfect wisdom may direct the deliberations of this body” and that the convention be “full of what may redound to the glory of the commonwealth.” (131) Religiosity and constitutionalism met directly every morning of that convention. (132) The Jamestown Alert noted in September 1883 that the Constitutional Convention had “prayers every morning” and “no one knows but that what is now a political gathering may be transformed into a great religious revival.” (133) The influence of Christianity on state constitutions was noted by United States Supreme Court Justice David J. Brewer in 1892. Brewer found “a constant recognition of religious obligations” in state constitutions and concluded that “they affirm and reaffirm that this is a religious nation.” (134)
The use of Christian imagery and the state motto that was adopted also indicated the Christian preferences of the constitutional framers. When the 1883 Convention was grappling with whether to simultaneously elect a slate of state officers when voting on the constitution, delegate Dollard said “We are much in the position of the Children of Israel who paused on the banks of the river in sight of the promised land. We have constructed the bridge; now shall we cross upon it?” (135) The Spearfish Register wrote of the Dakota Constitution: “In rearing this monument let every one build over again his own house as in the days of dismantled Jerusalem … [and] under the guidance of a kind God, [the constitution] will defy the storm of centuries to come.” (136) Since statehood would end the rule of territorial appointees and railroad influence, delegate Campbell said it was equivalent to escaping “the hands of the Philistines.” (137)
During the 1885 Convention, the report of the committee on the state seal and coat of arms suggested the motto “Under God, the People Rule.” When a delegate offered an amendment to change the motto to “The People Rule,” it failed ten to seventy-three. The vote on the report (without the amendment) passed with only one negative vote. (138) A constitutional preamble was also adopted which began “We, the people of Dakota, grateful to Almighty God for our civil and religious liberty.” (139)
From heavy reliance on the republican and Christian traditions of the United States followed a great deal of consensus on fundamental questions when the constitutional framers of Dakota convened. The absence of debate on basic questions at the constitutional conventions held in the West, according to Gordon Bakken, indicated a “consensus of silence on certain of America’s fundamental principles.” Bakken believes that the Dakota framers’ “recurrence to fundamental principles confirmed the faith of Founding Fathers in the state-making process.” (140) The bill of rights placed in the Dakota constitution, which was noteworthy for the degree of consensus it generated during the convention and for its extensive use of the American constitutional heritage, even included a provision stating that “[t]he blessings of a free government can only be maintained by a firm adherence to justice, moderation, temperance, frugality and virtue and by frequent recurrence to fundamental principles.” (141) The Dakota framers worked squarely within the American political and constitutional tradition.
VI. TRANSCENDING THE TERRITORIAL SYSTEM
The statehood advocates and the framers of the South Dakota Constitution relied on republicanism and the history of democratic practices in the United States when criticizing and rebelling against the territorial system. Few Western settlers favored the territorial system, which limited the settlers’ ability to exercise their republican rights. Under the territorial system, the President of the United States chose the governor and judges for the territory and Congress would pass an organic law which would serve as the territory’s fundamental law. (142) Any statutes passed by the territorial legislature could be vetoed by the federally-appointed governor or preempted or repealed by Congress. (143)
Exacerbating the anger toward the territorial system in Dakota was the length of the gestation period from territorial status to statehood and a particularly villainous territorial governor. Gideon Moody captured the sentiment of many delegates during the 1885 constitutional convention when he prayed for the coming of a “self-governing” “commonwealth” which upheld the “manhood” of Dakotans and denounced the “evils of living under a government that is clearly one held at the will of a foreign tribunal.” (144)
The republican focus on liberty and local control can be detected in Dakotans’ persistent attacks on colonialism, which often were made in a familiar democratic idiom. Dakotans constantly complained of their subservient status as dependent provincials who lacked the rights of independent men. (145) The Vermillion newspaper asked pleadingly, “When shall we slough off this chrysalis or bondage and be free, independent and self governing?” (146) In 1888, the Mitchell Sun criticized Democratic President Grover Cleveland for treating Dakota Territory as a “dumping ground” for political hacks and “kneelers” and reported that most Dakotans thought the devil should take Cleveland and “shake him over hell.” (147) When criticizing the territorial system, Reverend Joseph Ward relied on ample precedent, including the freedoms of the Saxon people, Thomas Jefferson, the original American colonists, William Penn, the Founding Fathers in general, the Northwest Ordinance of 1787, the Treaty with France of 1803, and the movement for statehood in Michigan, which went forward regardless of Congressional approval. (148) Local government, Ward pronounced in the language of republicanism, was necessary “for the sake of the common weal.” (149) Much of the animus directed toward the territorial system was based on the traditional republican fear of corruption. Local control, the election of locally-known officials, and accountability for these locally-elected officials would create a “more representative commonwealth” in which the “tendency and temptation to corruption and graft in government should not be so possible.” (150)
In 1880, Nehemiah Ordway was appointed governor of Dakota Territory, and he quickly set in motion his plans for plunder and revealed his contempt for republican ideals. In 1880, Ordway made his first visit to Sioux Falls where he wooed the editor of the Sioux Falls Pantagraph on the veranda of the Cataract House hotel until 1:00 in the morning. Ordway explained his connections in Washington due to his long service as sergeant-at-arms in the House of Representatives and his role as “banker” to many congressmen. Due to his connections on both sides of the political aisle he claimed to control federal appointments in the territory and offered to make the editor the postmaster of Sioux Falls. Ordway said he wanted to make a fortune in the territory and needed to build a strong combination which required a co-conspiring newspaper in Sioux Falls. Ordway said, “I will make similar arrangements in other localities, and we can organize affairs so as to have everything our own way.” Ordway also bribed legislators, threatened vetoes of legislators’ bills if they resisted his plans, compelled those settlers seeking county seats to give him land, installed his son as territorial auditor in order to control finances, and moved the territorial capital from Yankton to Bismarck in order to benefit from real estate speculation. (151)
The settlers’ disgust with figures such as Ordway and the territorial system in general was effectively summarized by the Congregational minister Joseph Ward. Ward argued that the people in the territories were “treated, not simply as aliens, but almost as enemies” and were “not regarded as a part of the common country, but as a dependency, a province.” (152) Promoting local control and statehood would make Dakota democracy more “pure” by ending the “demoralizing influence of Federal patronage,” which excluded “decent” men from political life and brought in a breed of “toadying” hacks equivalent to those “that appeared in any remote Roman province in the bad days of the Empire.” (153) When critiquing the territorial system, Ward invoked the founders and the freedoms sought by the American colonists, compared the treatment of Dakota to the treatment of Kansas before the Civil War, and cited the work of William Penn, who “went far to confirm the ‘right of the free Saxon people to be governed by law of which they themselves were makers.'” (154) Ward’s citation of historical antecedents went beyond the obvious. He also relied on the Northwest Ordinance of 1787, the Treaty with France in 1803, the Dred Scott decision, and the organization of state government in Michigan in 1835 “without an enabling act from Congress,” which Congress approved in 1837. (155) In contrast to the appointed spoilsmen in the territory, Ward praised the “virtue and intelligence” and “enterprise and sturdy vigor” of territorial residents who had “borne the first shock of savage uprisings” and now sought statehood for the “sake of the common weal.” (156) The settlers in the territory were viewed as exemplary republican citizens and no other group in the nation exceeded their “loving reverence for the Fathers of the Republic.” (157) Ward called for an end to federal territorial policy and for Congress to create states which were “truly republican, and in entire harmony with the spirit that created the present Union.” (158)
Under the territorial system, the transition to statehood depended on the passage of an enabling act by Congress. During the most active years of the Great Dakota Boom in the 1880s, however, Congress was in no mood to help Dakota. Congress, John D. Hicks noted, was “absorbed in politics” and was “indifferent to all else.” (159) Yet settlers continued to fill the Dakota plains, making the delay of statehood that much more offensive. During the 1880s, Dakota Territory had twice the population of Iowa and Wisconsin when they were admitted, three times the population of Michigan and California, four times the population of Missouri and Colorado, five times the population of Ohio and Illinois, and six times the population of Indiana and Nevada. (160) Throughout the boom, the Yankton Press and Dakotaian begged Congress to listen to the “claims of the three hundred thousand disfranchised residents of the republic.” (161)
Congressional resistance to Dakota statehood stemmed from a simple logic. The creation of two new states from Dakota Territory would likely bring with them four new Republican Senators and additional Republican Congressmen. In the early part of the decade, from 1881 to 1883, the Republicans held the Presidency and both houses of Congress and thus had the opportunity to approve statehood for the Dakotas, but Senator Eugene Hale of Maine objected because of the failure of the city of Yankton to pay off some railroad bonds (some of the bondholders were in Maine). After the 1882 elections, for next six years, there was divided government in Washington and thus the Democrats could block statehood for the Dakotas. As John D. Hicks noted, the “Dakotas were overwhelmingly Republican, and would prove an embarrassment to the Democrats whether admitted as one state or two.” (162) The Boston Daily Advertiser and other newspapers criticized Congressional Democrats for blocking statehood based upon the experiences of other less-populated territories: “To say that a territory which contains 80,000 farms is in danger of dwindling into a second Nevada is manifestly absurd.” (163)
Those in Congress who had little sympathy for Dakota statehood could point to dissenters in the territory to bolster their arguments against admission. Two factions based in the north, often working in tandem, led the efforts to stymie the momentum toward statehood and undermine the legitimacy of the movement. The territorial office-holders such as Governor Ordway and some of his newspaper allies worked particularly hard to block statehood. Statehood would bring the end of the territorial system and thus the end of Ordway’s governorship and his ability to profit from territorial machinations. (164) Ordway’s allies at the influential Northern Pacific Railroad also opposed statehood, which might lead to the passage of tighter railroad regulations by a state legislature more attuned to the interests of Dakotans. (165) The Chicago Inter Ocean explained that it was the “Ringsters, tricksters, and small-fry politicians” in the north who opposed statehood. (166)
Those Dakotans actively seeking statehood and battling with opponents in the north also sought division of the territory, especially after Ordway engineered the removal of the capital to Bismarck. The more settled, agrarian, and republican southern section sought separation from the north, which it saw as controlled by combinations, railroads, and bonanza farmers. Bartlett Tripp deemed the north “one great wheat field rented and cultivated in large tracts, while the south is a pastoral and agricultural region divided into small farms, occupied and cultivated by the owners of the soil.” (167) Territorial appointees and their allies such as the Northern Pacific were seen as the main opponents of statehood and division. The Yankton newspaper said the Northern Pacific was “bending every energy to throttle the division movement.” (168)
In September of 1883, during the first constitutional convention in Sioux Falls, the Ordway forces organized a counter-convention in Fargo to protest against and delegitimize the statehood and division efforts of the south. The effort did not have the desired effect. Less than 50 of the 109 delegates attended and there were doubts about the credentials of some of the delegates who did appear. When the delegates assembled, contrary to Ordway’s plans, some of them even expressed support for division of the territory. (169) Of the Fargo convention the Pioneer Press said “nobody seemed to know what it was called together for.” The Pioneer Press deemed the Fargo convention “scarcely representative” and “almost without occupation” and found the Sioux Falls constitutional convention meeting at the same time much more “earnest” and legitimate. The only objection heard at the Fargo convention which created some degree of consensus was the concern that southern Dakota would expropriate the name “Dakota.” Representatives from the south, however, consistently said they were willing to make concessions on the name issue. (170)
Some newspapers in the north even threw cold water on the Fargo convention. The Grand Forks Herald said that northern Dakotans would ignore the Fargo convention, which it labeled “a Bismarck capital scheme, pure and simple.” (171) The Fargo Republican was perhaps the most stridently critical of the Fargo convention, which it said was “originated by the Bismarck ring” and “scheming politicians.” The newspaper opined that the masses opposed the Fargo convention and that the “ringsters” were using the loss-of-name issue as “a cover for an attempt to place the people of north Dakota in an attitude of opposition to division and to thwart the efforts of the southern section.” (172) The Fargo paper concluded that the opponents of statehood were simply trying to create the impression that the residents of the territory did not favor division and statehood. (173)
VII. SEEKING CONSENSUS
The efforts of the opponents of statehood to create the impression of disunity within the territory steeled the statehood advocates’ desire to promote consensus. The probable resistance of Congress and the heartfelt desire to end the territorial system concentrated the efforts to achieve unity and bipartisanship. The statehood advocates made consistent efforts to appeal to the minority of Democrats in the territory and to invoke their participation as a sign of consensus. During 1883 convention, for example, delegate Thomas Sterling opposed electing a slate of officers to serve a future state: “We cannot afford to adopt doubtful measures. There should be unanimity.” (174) During the same convention, delegate Abraham Boynton of Lincoln County, the oldest member of the Democratic territorial central committee, said “he had been accused by members of the committee as being made a Republican tool by working to get a Republican territory into the union.” (175) The Democrat Frank Ziebach worried that he would be accused of “being used as a catspaw to rake the chestnuts out of the fire for the Republican monkey.” (176) The Republican statehood advocates were in turn criticized for appealing to Democrats to achieve statehood and for rumors that they had offered future state offices to Democrats, which one newspaper deemed a “sinking of principle … beneath the manhood of true men” and a “betrayal of party interests” in the cause of “currying favor with the Democratic members of the next Congress.” (177) The statehood advocates also sought to avoid divisive issues such as prohibition and female suffrage and any unorthodox provisions which might cause dissent. The Yankton Press and Dakotaian emphasized the need to avoid “experimental clauses” because it was “no time to inject radical issues into fundamental law when so much depends upon” a favorable congressional response. (178)
The safest method of avoiding untried experiments which might foster uncertainty and dissent was to borrow from existing constitutions, which was a common practice in the West. (179) The committee formed to promote adoption of the 1883 constitution openly declared that the charter had “no claims to originality” and that it was “a compilation of the best sections of all constitutions of the several states.” (180) The committee explained how the constitution of every other state was available during the convention debates and that they were consulted and debated in open convention. The committee explained that the framers sought to avoid “new and unconstrued provisions” in order to win Congressional approval. (181) “Every material line and section then of our constitution,” the committee announced, “will be found in the laws of the later and more modern constitutions of the states.” (182) L.W. Lansing, a delegate from Hand County, doubted that a constitution could be assembled “from scratch” in a short period of time when he attended the 1885 convention, but soon discovered that “with plenty of copies of the constitutions of other and older states that it was largely a matter of editing and selection.” (183) The excessive borrowing, however, did not mean the absence of reform provisions. Voters were urged to compare the 1883 Constitution with the latest reform-minded constitutions, especially the Illinois constitution of 1870 and the Pennsylvania constitution of 1875. (184) After the 1883 constitutional convention, the Yankton Press and Dakotaian called the resulting charter a “combination of the best elements to be extracted from the constitutions of thirty-seven states with enough in the way of new points to indicate that our people are abreast with the spirit of progressiveness.” (185)
Another potential pitfall awaiting the framers was the growing frustration and resentment of many Dakotans with the inertia and politicization of the statehood process. At times, such passions generated calls for more drastic action. Some statehood advocates, led by Hugh Campbell, argued that Dakota should simply assert its right to statehood and elect a government regardless of whether Congress passed an enabling act. Campbell cited Supreme Court cases, past actions of Congress, the rebellion of the original thirteen colonies, the Northwest Ordinance, and the assertiveness and impatience of other states in earlier decades. (186) Indeed, from 1836 to 1848, Congress had decided to simply admit Michigan, Iowa, Florida, and Arkansas without passing an enabling act authorizing these states to organize a government. California, Oregon, and Kansas had also written constitutions and organized their governments without Congressional action. Gordon Bakken has noted that the “absence of enabling acts corresponded to the congressional democratization of the territorial system itself” which created “great latitude for territorial action.” (187) Despite these precedents, whether the delegates of the Dakota conventions should simply adopt a constitution and immediately elect a government which would then take power remained a persistent tactical question for the statehood movement to answer. Some sober leaders counseled against such notions of popular sovereignty, which were particularly distasteful for Union veterans of the Civil War. (188) In the end, the powerful temptation to elect a state government and declare statehood was resisted in the name of promoting consensus and pacifying Congress, but not without a passionate discussion and the invocation of the most sacred symbols and precedents of American democracy.
The debate over the perils and principles of popular sovereignty reached fever pitch over one particular clause in the Constitution. At the 1885 convention, during consideration of the report of the committee on the bill of rights, Hugh Campbell introduced an amendment adding a section which was taken verbatim from the 1870 Pennsylvania constitution stating that the people should “have the right at all times to alter, reform, or abolish their forms of government.” President Edgerton, Joseph Ward, and others opposed such a “revolutionary” clause which they thought would only incite opposition in Congress. In response, Campbell cited Patrick Henry, the Declaration of Independence, and the founding fathers. “I hope the time will never come,” Campbell said, “when the people of Dakota will have less spirit than did their fathers.” Campbell reminded the convention of how the Democrats treated the people of Kansas in 1860 and how they “turned out their legislature and forced down their throats the Lecompton constitution.” Campbell paid little heed to the concerns of the Democratic Congress, which, he said, the opponents of his provision treated as “demigods” and “czars.” As Judge Edgerton was calling for the vote on Campbell’s provision, a motion was made to adjourn. The vote was 36 to 36, but adjournment was declared anyway in hope of defusing the situation. (189)
The next morning, as the convention reconvened, what the Pioneer Press called an “exceedingly heated discussion” continued on Campbell’s amendment. Judge Edgerton criticized the invocation of Patrick Henry, noting that Henry called “upon Virginia to rise in revolt against the mother government” and sought separation from, not inclusion in, the political regime. Edgerton opposed “revolutionary methods” and urged the convention to move ahead “peaceably.” Edgerton pointed out that the clause in the Pennsylvania constitution in question was originally adopted in 1776 during a passionate moment of the American Revolution and that he did not want to “snuff gunpowder again.” He said that “If ever the bugle calls again the old soldiers will fall in, but it must be to rally around the old flag,” not in the cause of disorder and disunion. Calling on his Civil War service, Edgerton counseled the body to avoid revolutionary strife. During Edgerton’s speech, according to the Pioneer Press, Campbell “sat nervously fingering law books at hand,” taking umbrage at the remarks. On the brink of a “wordy conflict” amid “great confusion,” a wise delegate moved to refer the resolution to a committee. The motion passed unanimously. (190) The committee later reported a more subdued provision which declared that the people had the “right, by lawful and constitutional methods, to alter or reform their forms of government.” (191) In the end, the Pioneer Press reporter concluded that the debate probably did “more good than harm by calling the attention of the public at large to the fact that South Dakota is in earnest in the matter of securing division and admission.” (192) The delegates made the pragmatic decision which would advance the cause of statehood.
The most potentially divisive issues addressed during the conventions were prohibition and women’s suffrage. Statehood leaders consistently worked to avoid including a prohibition provision in the Constitution and called on temperance leaders to save their energy for a legislative battle once statehood was achieved. They insisted that statehood must come first. Since the constitution was a “struggle and contest against power, against corruption in high places, against great corporations” and therefore “a struggle for life and death,” it required the “unanimous and undivided support of the people.” It was “suicidal” to divide voters over the issue prohibition. (193) Many of the statehood leaders were also temperance men, but agreed to subordinate the temperance question to the quest for statehood. The Chicago Inter Ocean reported that Reverend Joseph Ward said that statehood must come first because to include prohibition would “array the whisky ring of the whole country against the admission of south Dakota.” (194) The decision of certain prohibitionists to defer the prohibition issue helped ensure that the convention remained “a thoroughly harmonious body.” (195) To include prohibition in the constitution, the Pioneer Press opined, would have been “to give it its death-blow before it is fairly born.” (196)
The prohibition issue was closely linked to the issue of women’s suffrage. When a temperance convention convened during the 1883 constitutional convention, it endorsed the southern Dakota Women’s Christian Temperance Union’s plan to promote women’s suffrage as “a weapon of defense against the saloons.” (197) Politically active women could, it was argued, help “in the labor of arresting the advance of crime and corruption.” (198) Other women’s suffrage advocates simply appealed to gender equality. The framers heard a plea for suffrage from Marietta M. Bones, Vice-President of the National Woman Suffrage Association. She advocated to include women’s suffrage in the constitution as opposed to submitting the question to a popular vote because she did not think the mass of people truly understood the benefits of women’s voting rights and were “as ignorant of the advantages freedom would be to them, as were the [slaves] in the south: who, had they endorsed the action of John Brown at Harper’s Ferry in their interest this country would have been saved the horrors of a terrible war.” (199) Bones borrowed the language of republicanism, argued that women sought the “higher duties and obligations of American citizenship,” and believed that without women’s voting rights Dakota would not have “a republican form of government.” (200) One unknown correspondent to the Pioneer Press, however, counseling Dakotans not to simultaneously pursue statehood, suffrage, and prohibition, wrote that the “great mass of the women of Dakota do not want the ballot; nor do the people of Dakota want to have every community and town rent with strife and passion over the question of prohibition and temperance …. The vindictive abuse and hypocritical cant of the professional reformers’ only tends to divide and exasperate the people, creating divisions and factions, without any appreciable good.” The advocates of maintaining consensus and avoiding the “gauntlet of all criticism of our enemies” prevailed and prohibition and suffrage were both left out of the final drafts of the three Constitutions written during the 1880s. (201)
VIII. THE ANTI-CORRUPTION IMPERATIVE
One of the strongest pillars of republican theory involves the need to guard against corruption. During the constitutional debates in Dakota Territory, perhaps the strongest efforts of the delegates were directed at crafting a document which limited corruption. Instead of being unconsciously mired in the political corruption of the post-Civil War era, the advocates of statehood were acutely aware of these democratic shortcomings and specifically sought to transcend them. These efforts were spurred on by the strong reaction to the national scandals which preceded the statehood period, the “Indian ring” in Dakota Territory during the 1870s, the corruption of territorial governors such as Ordway, and the general problem of Grantism. In 1876, Carl Schurz was named Secretary of the Interior and launched a high-profile effort to eliminate corruption in the Indian agencies. (202) By the time of the adoption of the South Dakota constitution, as John D. Hicks noted, the nation was “conscious and ashamed of its political corruption.” (203) Because of the experiences in other states and in Dakota with railroad influence over legislatures, constitution writers were very much aware of the need for reform. (204) During the 1883 constitutional convention, delegate George Hand said that the “territory is in the hands of as unscrupulous a set of scoundrels as ever disgraced a people, and I came here to help rid you of the incubus.” (205)
Legislative reformers in other constitutional conventions in the West similarly worried about the “human drive to act selfishly” and embraced a “constitutionalism that was pessimistic about human nature and democratic political processes,” a key component of the republican tradition. (206) The delegates to the constitutional convention focused their anti-corruption efforts on the legislature. The new Dakota constitution would include restrictions placed on legislators’ ability to compete for state contracts, a prohibition on legislators’ holding offices created when they were in the legislature, and bans on corrupt solicitation and “lobbying” which were punishable by fine and imprisonment. (207) The Yankton newspaper, when commenting on the 1883 constitution, noted the “punishment for bribery, even in its most simple form.” The newspaper said the bribery provisions were “the outgrowth of an experience which has taught us that the public can only be protected by the most stringent requirements.” (208) The constitution also mandated a large House and Senate membership, which made corrupt conspiracies more difficult, and ended the “evil effects of small legislative bodies.” (209) Fear of corruption in the legislature meant more restrictions on legislators’ behavior were included in the constitutions instead of leaving such questions to legislative bodies. (210) One South Dakota delegate said that the “object of Constitutions is to limit the legislature.” (211)
The constitutional framers also adopted specific provisions designed to limit the “lavish” spending of previous legislatures. (212) Many delegates were especially critical of the “unusually large appropriations” made during the 1883 territorial legislature under the direction of Governor Ordway. (213) During the 1883 constitutional convention, the delegates were reminded of Ordway’s scheme to move the capitol when, on September 15, 1883, Judge Edgerton issued his decision finding that the capital removal commission was unconstitutional. The Yankton newspaper saw this decision as a blow against the “official vultures who feed upon the carcass of public spoils” and concluded that the Bismarck ring could no longer “fatten upon the wages of sin.” (214) To restrict legislative spending, the length of the legislative session was limited, strict limits were placed on state indebtedness, state loans or donations were banned, aid to corporations was banned, state ownership of private stock was prohibited, and county, town, city, and school district debt was capped at five percent of assessed valuation. (215) Taxation was limited to two mills per dollar, but two additional mills could be levied to retire state debt. (216) Even the often-critical Bismarck Tribune commented that the 1883 constitution bore “decided evidence of careful precaution” and was “economical in its provisions for expenditures.” (217) A ban was also adopted on legislators receiving railroad passes or “any other valuable thing” from corporations (a violation prohibited legislators from running for re-election) and the governor’s appointment and pardoning powers were also curtailed to limit political favoritism. (218)
Another prominent anti-corruption measure addressed the disposal of public lands reserved for education purposes. Congress had long set-aside the sixteenth and thirty-sixth sections of each township of federal land to be used to finance education, but by the time of the Dakota statehood movement there were increasing expressions of concern that new states had sold these lands too cheaply to speculators. (219) As early as the 1882 convention of the Citizens Constitutional Association, Dakotans were calling for protections for school lands in the “fundamental law” of the state because such lands had been lost to “waste and fraud” and “combinations and fraudulent schemes” in other states. (220) General William Harrison Beadle spearheaded efforts to establish a constitutionally-mandated minimum price for these lands. Beadle’s plan of a $10 minimum seemed “preposterous” at the time it was proposed because Iowa land was then selling for $2.50 to $4.00 and “no state had ever required a limitation higher than =double minimum,’ that is, two dollars and fifty cents per acre.” (221) The Beadle plan prevailed, however, and became a model reform measure adopted by other Western states. In addition to curbing corruption, the Dakota school lands law also promoted the agrarian agenda by giving settlers preferential credit terms when acquiring school lands. (222)
IX. THE RAILROAD QUESTION
In his widely-discussed book, Nature’s Metropolis, the historian William Cronon focused on the history of the economic relationship between the urban center of Chicago and the “Great West,” which included Dakota Territory, and explained how Chicago shaped the settlement of the late nineteenth century boom areas. (223) By 1855, Chicago as an economic center had displaced St. Louis, which had long-received farm goods via the Mississippi River. Chicago and the railroads “changed the way prairie farmers could sell their crops.” (224) As the railroads worked their way across the plains, Cronon explained, farmers in Illinois, Wisconsin, Minnesota, and Iowa “swept out into Kansas, Nebraska, and Dakota Territory” and settled new lands. (225) “Dakota has been made by the railroads,” said a contemporary account. (226) Because of the expansion of agrarian settlement into Dakota and the plains in general, a “deluge of wheat, corn, and other grains flowed via the railroads into Chicago.” (227) During the extension of railroads to the plains, according to John D. Hicks, the “American citizen was introduced to another frontier, a region aptly named by Hamlin Garland the ‘Middle Border.'” (228)
The main railroad arteries into southern Dakota were lines built by the Chicago & Northwestern Railroad and the Chicago, Milwaukee & St. Paul Railroad. According to one history, the Great Dakota Boom was “triggered by the intense rivalry” between the Chicago & Northwestern and the Milwaukee Road. (229) Each railroad built a transportation network designed to profit from shipping the agricultural bounty of Dakota to markets in the East. (230) These railroads also promoted the agricultural prospects of Dakota and helped to recruit new immigrants from Europe. (231) The Milwaukee Road’s agent in Liverpool “portrayed America as a land of riches and plenty. To the politically oppressed they revealed the American West as still the ‘home of the free.'” (232) During the boom, these roads built lines across southern Dakota to the Missouri River, routinely brought in settlers from the Midwest and immigrant farmers from Europe, and hauled out Dakota grain.
The Milwaukee Road and the Chicago & Northwestern were not land grant railroads. Only a small amount of land in southern Dakota was granted to one railroad, the Winona & St. Peter, in Deuel and Codington counties. None of the five major transcontinental railroads which crossed the United States passed through southern Dakota. By the time of the Dakota boom, there was a “strong feeling in Congress against granting more land to the railroad companies.” (233) In 1871, Congress made the last railroad land grant as public opinion turned against the railroads and there were growing concerns that such grants conflicted with the agrarian policy of distributing federal land to homesteaders. (234) A railroad which had benefited from federal land-grant largesse prior to its exhaustion became an influential opponent of the statehood advocates. In 1864, Congress granted 50 million acres to the Northern Pacific Railway to build a transcontinental line from Lake Superior to Puget Sound. (235) A prominent historian of the legal history of railroads has deemed the congressional land grant to the Northern Pacific as “particularly generous” and “unusually lavish.” (236) Such large-scale land grants affected the land-holding patterns in the plains states that they crossed. In Kansas, railroads were granted twenty percent of the state’s land and, in North Dakota, railroads were granted twenty-four percent of the state’s land. (237) The land-grant process was so generous that, in the end, the federal government granted a swath of land to the railroads which was so large that it exceeded the territory occupied by the whole of the German empire. (238) During the 1880s, the advocates of Dakota statehood saw the Northern Pacific and the territorial office-holders allied with it as their primary enemies. The railroad feared that a state government, sans malleable territorial officials, would be more difficult to control and thus more likely to pursue regulatory measures the railroad opposed. (239)
While the Northern Pacific was the target of particular anger on the part of statehooders, railroad shipping rates in general were a particular concern to Dakota farmers. The cost of shipping Dakota wheat to Chicago on the railroad could consume one-half the price received. (240) From certain points in Dakota, it was cheaper to ship wheat to Liverpool than to Chicago or the Twin Cities. (241) For a grain dealer in Milbank in southern Dakota to sell his wheat in Minneapolis, he had to pay the full cost of transporting it to Milwaukee. Even the conservative Pioneer Press of St. Paul recognized the “miserable oppression” of Dakota farmers hoping to ship their products to market. (242) The newspaper thought that those “who would submit quietly to such outrage must be either more or less than men.” (243) Complaints about shipping rates were linked to complaints about railroads exercising political power in the territory. (244) Governor Ordway was strengthened by his alliance with the Northern Pacific, and Ordway’s replacement was Gilbert Church, who President Cleveland appointed upon the advice of J.J. Hill, the president of the Great Northern Railway, which also ran through northern Dakota. (245) The activities of Dakota railroads were also scrutinized when the antitrust movement gained political traction in the late nineteenth century. In the 1890s, a de facto merger united the Northern Pacific and Great Northern, setting in motion the famous Northern Securities antitrust litigation. The Northern Securities case was one of the first decisions to interpret the Sherman Antitrust Act of 1890, which was passed in response to concerns about anticompetitive behavior by corporations in the late nineteenth century. (246) Concern about the railroads inspired agrarian activism in Dakota and generally fueled the organization of the Farmers Alliance in the Midwest and supplied political support to the antitrust movement. (2470
X. THE JUDICIAL MOMENT
The constitutional framers of southern Dakota faced the choice of whether to regulate railroads when they began their work. Some other states, in the midst of economic development, had been reluctant to regulate or otherwise discourage the development of railroads. (248) But there was little doubt which track the delegates in Dakota Territory would go down. Many of the settlers of Dakota were from the Midwest, where state controls on railroads had been a political reality since the agrarian protests of the 1870s. In keeping with the Midwestern heritage of many of the framers, the constitutional framers did not hesitate to regulate railroads. This decision was consistent with the policy direction of the 1870s, when state governments became much more critical of the privileges and grants offered to businesses and of corporate practices in general. (249)
In the late 1860s, the state of Illinois began to experiment with “Granger laws,” or laws promoted by the farmers’ organization known as the Grange, to regulate the railroads. During the winter of 1869 to 1870, Illinois convened a constitutional convention in which railroad regulation was a prominent issue. The delegates “proceeded to frame a railway article of unprecedented stringency” and submitted it to the voters, who overwhelmingly adopted it. The Illinois provision declared that railroads were public highways, that legislatures could set maximum railroad rates, and that legislatures could prohibit rate discrimination and line consolidation. Historian George Miller noted that the “railway article of the proposed Illinois constitution was in accord with the trend of American constitutional thought during the 1850s, 1860s, and 1870s” and “that its example was followed by Michigan in 1870 and by Pennsylvania in 1873.” (250) James Ely similarly noted that Midwestern states increasingly began to regulate railroads and that the “elaborate railroad provision of the Illinois Constitution of 1870 set the stage for this departure.” (251) Iowa, Minnesota, and Wisconsin followed Illinois down the path of regulation and Wisconsin, in particular, became known for its stringent railroad regulatory provision known as the Potter law of 1874, which served as “a powerful symbol of western radicalism.” (252) The railroads, spurred on by lines which would build into southern Dakota such as the Chicago & Northwestern and the Milwaukee Road, challenged the constitutionality of these laws. (253) In the “Granger cases” of 1877, in which Munn v. Illinois served as the lead case, the Supreme Court upheld the power of states to regulate railroads, specifically noting that they were “clothed with a public interest.” (254)
An important “legacy” of these efforts to regulate railroads was the subsequent “adoption of detailed railroad provisions in state constitutions,” for which the “pioneering Illinois Constitution of 1870 served as a model for other jurisdictions.” (255) During the constitutional debate in southern Dakota, the Illinois constitution was consistently held up as a model. The adoption of railway regulations in southern Dakota could hardly be considered “radical,” according to George Miller, because such regulations were so “deeply imbedded in American tradition and law.” (256) The Munn v. Illinois decision upholding state railroad regulations was handed down just a few years prior to the organization of a serious statehood movement in Dakota Territory. Regulating railroads was not out of the ordinary for the transplanted Midwestern farmers in Dakota Territory and thus not deemed a risky or experimental scheme during the constitutional conventions. It is not surprising, therefore, that the constitutional conventions of the 1880s adopted restrictions on railroads with minimal dissent. It was not until the late 1880s that the Supreme Court began to reject railroad regulatory measures as an unconstitutional interference with property rights. (257) The restrictions on railroads adopted in the southern Dakota conventions reflect republican sentiments. Perhaps the majority of farmers in Dakota Territory came from such states as Iowa, Wisconsin, Minnesota, and Illinois, which constituted the core region of Grange activity and anti-railroad sentiment. These Midwestern farmers embraced what Gerald Berk calls a “regional republicanism” which sought to preserve an economic order of decentralized farms which were not dependent on larger economic forces. (258) This Midwestern republican tradition drew on the “cultural resources of civil humanism articulated by the founders” and others and sought to subordinate certain economic activities to the needs of the commonwealth and a yeoman-centered agricultural order. Railroad rates were thus made “subject to substantive republican norms, namely, decentralized market development.” (259)
In addition to railroad regulation, the framers of the South Dakota constitution adopted restrictions on corporations in general. The constitution prohibited the extension of any “special” charters to particular entities and required that corporations be organized under “general” incorporation laws and that a corporation’s activities be limited to that designated in its charter. The constitution allowed the revocation or annulment of corporate charters and allowed minority shareholders to cumulate shares to allow them to elect a member of the board and prevent a “ring” from choosing all of a corporation’s shareholders. (260) The constitution also prohibited public credit from being granted to any corporation. (261) Bank charters were limited to twenty years and, after the expiration of the twenty year charter, the bank could only retain its corporate character to sue and be sued. Bank stockholders were also subject to double liability. (262) One delegate said, “We have come here from other states where we have been scorched. Those that have been once burned are afraid of the fire.” (263) Many of the corporation provisions were borrowed from the Illinois and Pennsylvania Constitutions. (264) Corporate activities which could limit economic competition were also the subject of scrutiny. Many delegates, following national trends, were concerned about corporate consolidation and “trusts.” (265) The Civil War veteran Melvin Grigsby, for example, when running for territorial delegate in 1888, said monopoly was a “danger greater than the danger of African slavery” and warned that “African slavery once deluged the land in blood.” (266) Following other states, the South Dakota delegates also adopted a provision limiting corporate mergers. (267)
XI. THE CONSTITUTIONAL CONVENTION OF 1883
During the winter of 1881 to 1882, advocates of statehood in southern Dakota organized the Citizens Constitutional League to advocate the inclusion of certain provisions in the future state’s constitution. These provisions included prohibition, restrictions on taxation, protections for school lands, and provisions “against railroads and other monopolies.” (268) These issues were considered at a convention in Canton in June 1882 which included many “temperance men.” (269) The Canton convention formed an executive committee tasked with organizing a more general convention in Huron to discuss the level of support for writing a constitution and moving toward statehood. (270) On March 13, 1883, the executive committee issued the call for a convention in Huron, but, in order to facilitate consensus, the committee concluded that “special issues” discussed at the Canton convention, including prohibition, should “be reserved for future and separate action.” (271) Statehood advocates were given additional motivation for their efforts after Governor Ordway vetoed the bill passed by the legislature authorizing the constitutional convention. (272)
In June 1883, four hundred delegates convened in Huron to determine whether southern Dakota should proceed to write a constitution. (273) The outcome of the debate was never in question and an ordinance calling for a constitutional convention was quickly adopted. (274) The Huron convention set August 1 as the date for an election of delegates for a constitutional convention to be held in Sioux Falls beginning on September 4. The Huron convention delegates cited the Declaration of Independence, the federal Constitution, the Bill of Rights, the Northwest Ordinance, the treaty with France ceding Louisiana, and the “ancient customs of this republic” to justify their move toward statehood. (275) According to the Pioneer Press, a “large majority” of the newspapers in the territory supported the statehood movement, but dissent could be found in the north and in the Black Hills. (276) Opponents questioned the wisdom of efforts which could be construed as an assertion of statehood without Congressional approval and others doubted whether a Democratic Congress would ever be receptive to statehood. The Huron delegates wisely decided to abandon any notion of establishing a state government without Congressional approval and agreed to postpone any efforts to include prohibition in the constitution. The convention recognized that “a Democratic congress backed by an all-powerful whiskey ring” would likely block admission under a “prohibitory constitution.” (277) Bartlett Tripp declared that it was the “enemies” of Dakota who spread the idea that the convention was “revolutionary” and he deemed the convention a “patriotic” affair. (278) Tripp said that the “old flag was flaunted aloft and the wings of the great American bird were extended wide in the eloquent perorations of those embryo western statesmen,” who simply wanted “a new star upon the old flag.” (279)
In September 1883, the delegates to the first constitutional convention in Dakota Territory assembled in Germania Hall in Sioux Falls. The walls of the hall were freshly frescoed and calcimined, the wood was painted, carpets were laid, and the old kerosene lamps were replaced with gas chandeliers. A rostrum and desk were placed in the front of the hall for the president of the convention to use. The American flag and other decorations festooned the hall. The public was not allowed on the main floor of the convention but was allowed to observe from the gallery. (280) During the convention, a newspaper noted that the “gallery of the Germania hall is well filled every day.” (281) Large regional newspapers such as the St. Paul Pioneer Press and the Chicago Inter Ocean sent correspondents to cover the proceedings. (282)
At noon on Tuesday, September 4, 1883, the delegates convened. (283) After a prayer, the delegates were sworn in, Arthur Mellette was unanimously elected temporary chairman, and the committee on rules and the order of business was appointed. (284) The delegates hoped that if they worked efficiently their work could be completed in roughly two weeks. (285) After the organization of committees on the various topics to be included in the constitution, the committees would begin their work and then send reports to the full convention for acceptance, revision, or rejection. (286) Under this plan, the Pioneer Press reported, the delegates hoped that their “work may be greatly expedited.” (287) On the second day, the convention elected permanent officers for the convention, including the Democratic lawyer Bartlett Tripp as president. Tripp’s election was deemed “a bombshell in the ranks of the small squad of obstructionists hanging around the edge of the convention” because it underscored the partisan unity of the statehood forces. (288) The Daily Leader of Sioux Falls praised Tripp as a “Dakotaian of the Dakotaians” and, stressing the unity and mission of the convention, proclaimed “We are all Dakotaians, and we are all members of a Union with a great big capital U.” (289) The Yankton Press and Dakotaian said Governor Ordway would be flustered by Tripp’s selection because it signaled the “complete harmony” of the convention. (290) The delegates also wanted to appeal to the Democratic Congress by choosing Tripp, who the Bismarck Tribune deemed a “rock-ribbed, never-surrender Democrat.” (291) In addition to praising the choice of Tripp, the Bismarck Tribune reported that the “utmost harmony and desire to expedite the business of the convention prevails.” (292) One statehood leader later recalled that the 1883 convention was one of “toleration and harmony” and that there was only one objection to the rulings of the chair, which was quickly sustained by a vote of the delegates. (293)
On day three of the convention, the committee assignments were announced, chairs were asked to announce committee meeting times and places, and all of the committees met in the evening. (294) A large amount of time was set aside for committees to complete their work and some moved quickly. The Pioneer Press commented that the convention “men mean business.” (295) By day eight, about half of the committees had reported their proposed provisions. (296) The work of the delegates and their virtue was widely praised in newspaper reports. Even the Bismarck Tribune saw the delegates as “making as fine a body of men as ever assembled in any legislative body.” (297)
A. ECONOMIC REGULATION
Almost immediately, in keeping with the concerns of Dakota farmers, the convention considered the issue of railroads and corporations generally. The delegates included thirty-one farmers, an occupational group only outnumbered by the convention’s forty-two lawyers. One newspaper noted that the “number of farmers, newspaper men and solid citizens generally present showed the movement to spring from the people.” (298) The organization of the Farmers’ Alliance in the 1880s also helped spur the concern over railroads. On day five of the convention, the Pioneer Press reported
[A] strong desire among the delegates who are farmers to deal with corporations of the character of railroads, telegraph, etc. They say these corporations should pay the same rate of tax as private individuals; should not be allowed to consolidate, and should receive no aid that is not given [to] private parties. (299)
Arthur Mellette, who would become the last territorial governor and the first governor of the state of South Dakota, served as chairman of the committee on corporations, which was “hard at work” all afternoon and evening of day five of the convention drafting its provisions. (300) The Pioneer Press reported “an assiduity in the work of these men that commend them as patriots. They are earnest and unflinching.” (301) On day seven, a resolution was referred to the corporations committee asking it to consider a provision to require the state legislature to pass laws setting maximum railroad rates and for the election of railroad commissioners who would insure that railroad laws were observed. (302) On day eight, some delegates thought that the work of the corporations committee was becoming “so complicated and numerous” that the size of the committee should be increased by six members, but this motion was defeated when committee said it could handle its work. (303)
On day nine, the corporations committee issued its unanimous report, which was “anticipated with more than ordinary interest.” (304) The property of all corporations was to be taxed in the same manner as all other property, the state was prohibited from becoming a stockholder or assuming corporate liabilities, and the granting of subsidies was prohibited. (305) On day thirteen, when the report from the corporations committee was debated, there was, according to the Pioneer Press, “some hot shot fired at the railroad corporations of the country.” (306) Delegate A.S. Jones of Hutchinson County offered an amendment to the report which required the legislature to pass laws regulating railroad rates and prohibiting unjust rate discrimination. Democratic delegate Abraham Boynton argued that the matter should be reserved for the legislature and did not believe “it wise to proceed on the ground that our legislature will be corrupt, to be bought up, like sheep.” (307) J.C. Elliot of Grant County, however, worried that the south, like northern Dakota, was “falling also into the grasp of powerful corporations.” (308) Leading members of the convention, including chairman Mellette of the corporations committee, agreed with Elliot and supported the Jones amendment, which passed by a lopsided 53 to 18 vote. (309) In the end, the 1883 Constitution made certain that the railroads were deemed public carriers and that the legislature had the power to regulate them. (310)
B. CORRUPTION CONTROLS
The issue of railroad regulation was linked to popular fears that the railroads and other interests exercised excessive influence over the territorial legislature. As a result, the framers took several steps to prevent corruption in the legislative body. During the debate over the legislative committee’s report on day eight, delegate Campbell denounced the previous legislature, which he termed “damnable, and a blotch on the name of Dakota,” and legislative “logrolling” by the governor. (311) The committee on the legislative section of the constitution sought to make it a crime for legislators to trade votes or for state officials, including the governor, to “wield official power in favor of or against any pending measure in the legislature.” (312) The ideal sought was republican legislators making decisions based on the public interest instead of the logic of vote trading or the pressures of outside influence.
Delegates also limited public indebtedness. Counties, cities, and towns were prohibited from incurring debt levels which exceeded five percent of assessed valuation in order to avoid the reckless spending decisions made in past years. (313) When a committee report was amended to prohibit local governments from extending aid to individuals or corporations, a few delegates worried that this provision would limit the development opportunities of local governments who might seek to promote railroad construction. Proponents of the provision, however, argued that railroads built with public money were not worth the trouble. (314) Delegate Moody thought that loans and grants by local governments would “open the doors to all sorts of robbery of the people; that the people generally were constantly being attracted by some ignus fatus that never realized.” (315) Delegate Caulfield thought it was good for “towns and cities to guard well against indebtedness.” (316) Amendments to allow local governments to offer grants and loans failed after rigorous debate. (317) The spending on public works projects by local governments was also capped at $500,000, and the Pioneer Press reported that such provisions were “instances of the safeguards that are thrown around the powers usually granted legislatures by constitutions.” (318)
C. THE BILL OF RIGHTS
The constitution’s bill of rights represented perhaps the clearest case of openly embracing American democratic traditions and the debate over this provision also forced the delegates to directly address the perils of popular sovereignty. The lengthy bill of rights adopted by the framers borrowed heavily from earlier bills of rights and set forth common guarantees of liberty such as freedom of the press and religion and the right to trial by jury. (319) Many of these rights had also been set forth in the Northwest Ordinance and were repeated in the organic acts establishing Western territories. (320) On day ten of the convention, when the report of the Committee on the Declaration of Rights was considered, Hugh Campbell offered an amendment guaranteeing the people the right to abolish their form of government in such a manner as they thought proper. (321) Gideon Moody offered a similar amendment but with a different wording. (322) Delegates Mellette and Robert Dollard opposed the amendment as “impolitic” and others thought it was unnecessary and as a result the amendments to insert “abolish” were withdrawn. (323) When the Declaration of Rights Committee issued its final report it did not include the word “abolish” and instead settled for the phrase “right to alter or reform.” (324) During the bill of rights debate, the right to a jury trial was also called into question by delegates who feared that jurors were too often subject to corrupt influences. Gideon Moody called juries “a relic of barbarism,” “a source of great injustice and corruption,” and a “shield behind which rascals hide.” (325) While Moody based his argument on republican fears of corruption, proponents of the jury system recognized them as bulwarks against the abuse of republican citizens. Delegate Hand said that the right to a jury “is something that belongs to the humblest citizen. It may be a shield for rascals, but it is a shield also for honest men.” (326) The right to a jury trial was ultimately preserved by the framers. (327)
D. SUFFRAGE AND PROHIBITION
The convention also dealt with the controversial issues of suffrage and prohibition. On day five, the committee on elections reported its provisions, which limited women’s suffrage to school elections. (328) The Pioneer Press said that this report “pretty effectually and satisfactorily does away with the problem of women’s suffrage.” (329) The decision was made after a fair hearing, however. The Women’s Christian Temperance Union held a meeting during the convention and the vice-president of the Women’s National Suffrage Association (WNSA), who was described as “an omnipresent member of the lobby,” vowed to fight against statehood if women were not given the right to vote. (330) On day three, the WNSA spokeswoman asked to speak to the convention and was given the rostrum and lamented that women had “no more authority in self government than have the paupers and idiots.” (331) She pointed to recent elections in Wyoming, which were made less “boisterous and riotous” with the participation of women. (332) On the ninth day, a motion to allow women to hold any office, but to only vote in school elections, failed 16 to 114. (333) The statehood advocates who sought to avoid including provisions in the constitution which could jeopardize the document’s popular adoption had prevailed.
The prohibitionists also pressed their case, but many delegates were similarly determined not to jeopardize final adoption of the constitution by including such a divisive provision. (334) Prohibition was debated on day eleven and “for the first time blood was discovered in the eyes of some” delegates. (335) The Pioneer Press reported that “considerable feeling was evinced at times, delegates insinuating that the Democrats were against [prohibition] and they alone.” (336) An exchange between delegates indicated the partisan tensions. When one delegate rejected the insinuations of temperance delegates by proclaiming “I am neither a drunkard nor a rum seller,” another delegate remarked “But you’re a democrat.” (337) Delegate A.B. Melville and others sought to preserve unity, however, and avoided consideration of the prohibition issue in order to prevent “breaking faith with the [D]emocrats.” (338) Delegate Melvin Grigsby considered the implications of prohibition for the entire statehood project, asking how “a [R]epublican people with prohibition [would] fare with a [D]emocratic congress? We would be defeated. Money and whisky are both used freely in [C]ongress.” (339) Gideon Moody also urged pragmatism, asking his colleagues to avoid deal-breakers to insure that “our work does not end as idle wind.” (340) Delegate Dollard reminded his colleagues of the “solemn compact” made during the Huron convention to avoid consideration of prohibition. (341) Delegate John Gamble reminded his fellow advocates of statehood that Governor Ordway wanted the convention to adopt measures such as prohibition which would cause great division in the convention and in the statehood movement. (342) Arthur Mellette asked the central question: “Which is the paramount issue, prohibition or statehood?” (343) When President Tripp was called on to address the prohibition issue, he said he was saddened that the prohibition issue had caused the “first harsh word yet spoken” during the convention and asked delegates to “assert your manhood” and vote against prohibition. (344) During the votes on prohibition “bouquets rained from ladies in the crowded gallery,” but the vote to include prohibition on the fall ballot with the constitution was defeated 64-38. (345) Delegate W.W. Brookings said the ladies should “keep their bouquets to decorate the grave of their cause.” (346) After the vote, a “large and enthusiastic” crowd at a Sioux Falls church denounced the result and called on people to vote against the constitution. (347) The demonstration caused some observers to believe that the constitution would “be snowed under.” (348)
E. ELECTING A GOVERNMENT-IN-WAITING
Another thorny issue at the 1883 convention involved the election of a slate of state officers during the vote on the new constitution. Some of the strongest advocates of statehood sought to elect and organize a government regardless of what Congress decided. Others sought to steer a conservative course and not alienate Congress or cause unneeded criticism of the statehood movement. On day twelve of the convention, later dubbed a “field day for debaters,” an equally divided convention debated the issue of electing a slate of state officers. (349) Delegate Dollard argued that Oregon provided a precedent for electing a state government without Congressional approval. (350) The opponents of electing officers, in response, “displayed more than ordinary zeal and used extraordinary language, reflecting in one or two instances upon the motives of those who favored the proposition.” (351) The debate was “growing very intense, when the president called upon the convention to proceed more dispassionately.” (352) Those who opposed the election of a slate of officers included prominent delegates such as Moody, Campbell, and Mellette, and Richard Pettigrew. (353) On day thirteen, the delegates voted by a twenty-four-vote margin to elect a slate of officers, but stipulated that the officers would not take power until Congressional approval had been granted. (354) The delegates hoped that the election of a government-in-waiting would “keep the fire burning on the altar of 19, 1883, at 1.
Statehood.” (355) On day fourteen, however, still concerned about maintaining unity and avoiding any pitfalls, the convention decided to leave the decision of electing a slate of state officers to the convention’s executive committee, which then decided to postpone the election of officers so that it was not held during the constitutional ratification vote. The Pioneer Press reported that observers thought this decision was “wise” because it was the “only objectionable feature of the convention’s whole proceedings.” (356)
During the fall campaign of 1883, the primary objection raised by the opponents of the constitution was the provision relating to railroad taxation. The 1883 convention decided to grant the legislature the authority to impose a tax on a railroad’s “gross earnings” instead of taxing its property holdings, which was then the existing method of taxation. (357) The delegates recognized that the property held by the Northern Pacific Railroad was exempt from taxation by federal law and therefore the only method of collecting taxes from the railroad was through a gross earnings tax. (358) In an unsigned document, opponents of the constitution denounced the decision of the delegates to allow for a gross earnings tax as a sellout to “monied corporations,” who might avoid the “fixed and unalterable measure of valuation and taxation” which operated “equally upon every kind and character of taxable property.” Instead of taxing railroad property, opponents argued, taxation decisions were left to the legislature, which was subject to corruption. (359)
The state executive committee of the constitutional convention rejected the “nameless and fatherless circular” written by “men afraid to subscribe their names to, or admit the authorship of, such a paper.” (360) The committee argued that the constitution’s railroad taxation provision was borrowed from Illinois and Nebraska and was stronger than Iowa’s provision, noting that “No one has ever accused Iowa of being under the domination of railroads; she has had upon her statute books the strongest agrarian legislation against railroads of any state in the union, unless it be Illinois and Wisconsin.” The committee argued that the provision was stronger than those in the constitutions of Wisconsin, Minnesota, and Nebraska, all of which had the benefit of reviewing the recent anti-railroad constitutions of Illinois (1870) and Pennsylvania (1873). Even the Pennsylvania convention of 1873, the committee noted, “thought it necessary to provide this section only” and the Pennsylvania convention had met “under the cry of =reform'” when a “whole class of leading Republicans of that great state had come out and denounced the party of that state as under the control of rings and monopolies” and “produced what in many respects were the most radical changes in organic law that any convention had ever made.” The committee reprinted the railroad taxation provision of every other state constitution in the Union in order to prove that Dakota’s provision was strong and not a product of special interest meddling. They also noted that delegates Thomas Sterling and William Pierce, who were “two of the strongest anti-monopolist members of the convention,” supported the provision. (361) In the end, the proponents of the constitution effectively rebuffed the critics’ claims.
Despite the dubious post-convention objections lodged against the railroad taxation provisions, the 1883 convention was remarkably successful at avoiding divisive matters which could imperil the statehood movement. The delegates purposely elected a Democrat as president of the convention in a symbolic move to promote unity, successfully avoided issues such as suffrage and prohibition, and wisely decided not to form a government and rile the critics of statehood. The Pioneer Press noted that the constitution avoided “pet schemes” and “wild innovations” and thus did not provide a “pretext” for opponents to use to stop statehood. (362) The Press said that the Democratic Congress would have to find some other “subterfuge” to use to oppose statehood. (363) On day fifteen, the transcription of the various sections of the constitution was complete and the delegates met to affix their signatures. They adjourned the convention at 11:10 p.m. (364) The Pioneer Press reported that the delegates’ work was “praised upon every hand” and noted the absence of “self-seeking or political wire-pulling” during the convention and the presence of a “number of quiet, intelligent farmers and business men” and other “brilliant young men” who bolstered the effort. (365) The Pioneer Press believed that the final document had “been prepared with all the nicety of care that 135 of the brainiest men of South Dakota could give it.” (366) The Press also noted that the constitution had the “best safeguards against the undue power of corporations, bribery, executive usurpations and the power of creating debt and excessive taxation” and that it had borrowed the best provisions of the Illinois, Pennsylvania, and Nebraska constitutions. (367) The convention ordered ten thousand copies of the constitution to be printed and distributed to voters and, in order to appeal to the main body of European immigrants, also ordered 1000 copies written in German and 1000 copies written in Norwegian. (368) A message was attached to the printed constitutions stating that the delegates conducted “careful research into all authorities and precedents” and that their actions were justified by the “formal enactments and decisions by the highest authorities known under our courts and constitutions.” (369) The circular asked voters to “lift yourselves out of bondage into the condition of freemen, exercising all your own rights of self-government, were [sic] no one can bridge your enjoyment of life, liberty and the pursuit of happiness.” (370)
The 1883 constitutional convention in Sioux Falls was a victory for the advocates of statehood. The absence of the Ordway and railroad forces and the delegates’ deliberate pursuit of unity helped the process succeed. The statehood advocates avoided creating additional opposition by not including prohibition and suffrage provisions in the constitution and by not electing a state government-in-waiting. Opposition forces, however, made their voice heard through certain newspapers sympathetic to the north. The Yankton Press and Dakotaian correctly argued that the opposition “emanated from the Ordway ring and has been pushed by his captains and lieutenants” and by the “northern capital syndicate.” (371) In November, the constitution was endorsed by a popular vote of 12,336 to 6,814. (372) After the vote, apparently seeking to answer questions about low turnout and the number of opposition votes, Bartlett Tripp noted that constitutional ratification votes were often close because many different objections could be made to such a long document and cited the defeat of constitutions in Iowa in 1845 and in Wisconsin in 1846. He also noted that the Iowa constitution of 1846 only passed by 400 votes, the Nebraska constitution of 1866 only passed by 100 votes, and that the Missouri constitution of 1865 only passed by 1800 votes. (373) The Democratic Congress was still not amenable to Dakota statehood, however. The executive committee of the 1883 convention never called for the election of state officers because political conditions were not favorable. (374)
XII. THE CONSTITUTIONAL CONVENTION OF 1885
The advocates of statehood were not deterred by the passive attitude of Congress. In 1885, the territorial legislature again passed a bill authorizing a constitutional convention and, unlike in 1883, the measure was not vetoed. (375) The election for delegates to the new convention was held on June 30, 1885. (376) In September 1885, a convention again assembled in Germania Hall in Sioux Falls to write a Constitution. For the committee work during the 1885 convention, rooms were secured in Germania Hall, the courthouse, Waples block (legislative committee), the Leader building (corporations committee) and in hotels such as the Cataract house (bill of rights committee). (377) For the 1885 delegates, the constitution written in 1883 served as a great “labor saver” and “[m]any of its articles were transplanted” to the 1885 document and “hardly any material changes [were] made.” (378) The “disposition was to respect the text of the constitution of 1883.” (379) The 1885 convention ordered two hundred fifty copies of the 1883 Constitution printed for the use of the delegates. (380) One source notes that the 1885 constitution was derived from the 1883 constitution, the Enabling Act, the Federal Constitution, constitutions of other countries, court decisions, and “men of good authority,” but that the “most important and most widely used source was that of the constitutions and charters of all the states in the Union” and that “[c]opies of these were procured for the use of the delegates.” (381) To underscore the reform-mindedness of the document, the executive committee circular written in favor of adoption of the 1885 constitution made particular mention of how the convention relied on the [L]ast reform constitutions of Pennsylvania and Illinois, in which are to be found the latest, best, and most stringent guards, against the abuses of the power of corporations, special legislation, bribery and corruption, excessive taxation, and the extravagant incurring of municipal, county and state indebtedness, and the most careful and guarded protection of the school lands and interests of the people. (382)
The 1885 constitution also took another strong stand on railroads. The Pioneer Press noted that the “convention has blood in its eye whenever the subject of railroads are mentioned” and that the “standing committees are whacking away at the railway corporations.” (383) At the request of the Farmers’ Alliance, resolutions were offered calling for railroads to be declared “common carriers and subject to legislative control,” for the legislature to have power to control railroad rates, and requesting that “all property … shall bear the burden of taxation equally.” (384) The Pioneer Press reported that the “granger element predominated” at the convention and helped the convention work toward consensus on the railroad issue. (385) A subtitle in a Pioneer Press article read, “All Agreed as to Railroads” and the report of the corporations committee “was adopted with little or no debate.” (386) The committee report was adopted without change with the exception of one section which was “so amended as to prevent the consolidation of rival railroads by lease or otherwise.” (387) The Dakota Territory Farmers’ Alliance considered the 1885 constitution “a ‘farmer’s’ document, [which] included solid provisions about rural issues ranging from retention of school lands to regulation of corporations. Especially pleasing were sections dealing with the election of railroad commissioners and public control of transportation utilities.” (388)
In addition to the railroad question, the 1885 debates repeated some of the discussions prominent during the 1883 convention. Prohibition and suffrage were again addressed and the delegates decided, in lieu of inclusion in the constitution, to submit these issues for separate votes in the fall. The prohibitionists and suffragists “yielded gracefully” to this compromise. (389) The convention again debated including a provision in the bill of rights setting forth the right of the people to “abolish their form of government,” which was borrowed from the 1870 Pennsylvania constitution. (390) Alonzo Edgerton defended the provision by citing Patrick Henry and the Declaration of Independence. (391) Vowing not to bend to “czars and satraps,” he invoked the Civil War and asked “what did that Democratic Congress say to the people of Kansas?” and answered that the Democratic Congress “forced down their throats the Lecompton constitution.” (392) “If such a proposition be treason, I pray God I may always be a traitor.” (393) Judge Moody downplayed the “abolish” clause a “sort of Fourth of July declaration.” Although the delegates voted to add the word “abolish” to the bill of rights 46 to 17, the measure was referred to committee, which decided to eliminate “abolish” and settle for the phrase “alter and reform.” (394) The delegates again avoided any “revolutionary” temptation to simply declare statehood and thereby prevented opponents from arguing that they were endorsing doctrines of “squatter sovereignty” or “states rights.” (395) They did, however, decide to elect state officers should Congress agree to statehood. The few changes to the 1883 constitution adopted by the delegates included allowing a three-fourths rule for civil juries, increasing the size of the House of representatives to a range of 75 to 135 (it had been 55 to 100 in 1883 constitution) and the Senate to a range of 25 to 45 (it had been 25 to 33 in 1883 constitution), further constraining taxes and limiting state debt to $100,000 (it had been $500,000 in the 1883 constitution), and fixing absolutely executive salaries at low level (the 1883 constitution had allowed salaries to be subsequently changed by statute). (396)
The delegates adopted the 1885 Constitution unanimously. (397) The night before the signing, the arrangements committee worked through the night with “a large force of clerks being employed to transcribe the document.” (398) At 10:30 a.m. on the day of final adoption, Joseph Ward, chairman of the arrangements committee, “appeared in the doorway, carrying in his hands a large roll of manuscript which every one recognized as the organic law of the coming State of Dakota” and as he entered he received “prolonged applause.” (399) At 10:39 a.m., the secretary began to read the document to the convention which settled in to listen for errors. (400) After a break for lunch, the reading resumed and was completed just after 5:00 p.m. (401) Hugh Campbell moved to approve the constitution and it was adopted unanimously at 5:17 p.m. with every delegate voting. (402) The hall echoed with loud and long applause and the delegates then proceeded to the front of the hall and signed the document. (403) Four decades later, as a sign that the delegates viewed the convention as a historic moment, Arthur C. Phillips finally admitted that he pilfered the historic gavel used during the 1885 convention by distracting President Edgerton. (404) In the fall of 1885, with interest spurred by separate votes on the prohibition and suffrage questions, there was a large voter turnout and the constitution won popular approval 31,000 to 7,000. According to John D. Hicks, however, “politics again prevented admission. Dakota was Republican; the administration was Democratic.” (405)
XIII. THE CONSTITUTIONAL CONVENTION OF 1889
In 1888, the treatment of the territories became an issue in the national elections. That fall, with the defeat of Democrat Grover Cleveland and the election of a Republican president and a Republican House to work with the already Republican Senate, statehood for Dakota was assured. (406) The Aberdeen newspaper headline proclaimed “A Glorious Day for Dakota-Good Bye, Old Grover. Good Bye.” (407) After the election and before the new Congress was sworn in, with nothing to lose, the Democrats in the House passed a bill admitting the Dakotas, Washington, Montana, and New Mexico, but the Republican Senate, knowing the Democrats were hoping to slip Democratic New Mexico into the bill, demurred. The House finally gave way to Senate demands and New Mexico was removed from the bill. (408) The two Dakotas, Washington, and Montana were admitted to the Union in a new Omnibus Bill. The federal legislation called for an election in May to determine the support for the 1885 constitution and, if endorsed once again, for the meeting of a convention to address minor technical changes and for another ratification vote on the final constitution in the fall. (409) The 1885 constitution was again ratified in May and, in accordance with the Omnibus Bill, four constitutional conventions began on July 4, 1889 in Sioux Falls, Bismarck, Olympia, and Helena. (410) When delegates once again assembled in Germania Hall in Sioux Falls during the summer of 1889, they avoided making any changes to the constitution which conflicted with the requirements of the Omnibus Bill. The Daily Argus-Leader of Sioux Falls said that the “delegates to the convention were elected not to make, but to patch a constitution.” (411) Convening the South Dakota constitutional convention on July 4, 1889 in Sioux Falls, the Pioneer Press wrote, would help inspire the other new “commonwealths” included in Omnibus Bill with a “patriotic spirit and the wise and far-seeing statesmanship of the founders of the Union.” (412) In the fall of 1889, the voters of South Dakota adopted the constitution by an overwhelming vote of 70,131 to 3,267. (413)
XIV. A PEOPLE’S MOVEMENT
The drive for statehood and the constitution-writing process in southern Dakota is best understood as a popular democratic movement. The entire enterprise was drenched in the language and symbols of American democracy, civic republicanism, and political reform. Statehood advocates persistently called for citizens to promote the public interest, foster consensus, and combat corruption. The movement derived energy from territorial outrage over the corruption of un-elected “carpetbag” appointees who frustrated the general will of the people.
While natural leaders certainly emerged in the statehood movement, the procedural steps toward statehood were open to widespread public participation. The earliest statehood clubs, for example, were organized on the democratic Grange model in order to promote popular participation. The road to statehood also involved many steps open to public involvement. A convention to discuss statehood was held in Canton in June 1882, a convention to determine whether to call a constitutional convention was held in Huron in June 1883, delegates were elected to a constitutional convention to be held in September 1883, delegates were elected to a constitutional convention to be held in September 1885, and delegates were yet again elected for the constitutional convention held in July 1889. Along the way, there were enumerable political acts common to the Anglo-American political tradition, including conventions, debates, public speeches, elections, and the writing of ordinances, petitions, circulars, and opeds. The three Constitutions were also subjected to a popular vote and passed each time, which was not always the case for constitutions in the West.
On the preeminent economic issue of the day, railroad regulation, the statehood advocates and constitution framers sided with the authors of the Granger constitutions of the Midwest, the original home of many Dakota settlers. The anti-railroad provisions of the 1883 and 1885 constitutions were largely borrowed from other states which had adopted rigorous railroad regulations such as Illinois and Pennsylvania. Delegate Robert Dollard plainly said of the 1883 constitution that it was “hostile to railroads.” (414) When reporting on the 1885 constitution, the Bismarck Tribune said that the “subject of railroads whenever brought up excites much comments [sic]. Its [sic] like a red flag.” (415) The railroad regulations were widely supported by the delegates. (416) The work of the 1885 convention was also supported by the Farmers’ Alliance, which called the 1885 constitution a “farmers’ document.” (417) Indeed, the Pioneer Press reported that the “granger element predominated” at the 1885 convention. (418) During the height of the statehood movement, the territorial Alliance was highly active and the number of local Alliances grew from 256 in 1886 to 744 in 1888. (419) By the time of the 1889 convention, John D. Hicks noted, the “Alliance was able to dictate in the Dakotas” and the Farmers’ Alliance had numerical control of the legislature. (420) The Alliance did not object to the 1889 constitution (the Alliance president, H.L. Loucks, attended the convention) and it was widely supported in the fall election. (421) Given the large farm population of Dakota Territory, Alliance objections to the constitution could have scuttled its approval if it was so inclined.
The debate over the railroad provisions in the southern Dakota constitutions underscores the diversity of the delegates who attended the conventions and undercuts the notion that an economic “oligarchy” controlled the constitution-writing process. The adoption of the provisions regulating railroads with little dissent indicates the strength of the agrarian sentiment. The 1883 convention included thirty-one farmers and the largest occupational bloc at the 1889 convention was the twenty-four farmers, who even outnumbered the twenty lawyers in attendance. (422) The executive committee promoting passage of the 1885 Constitution said that the convention was “composed in a large degree of the farming and industrial element of the people.” (423) In addition to including a strong agrarian element, the membership of the constitutional conventions was fluid and not dominated by one consistent group. Only one person attended all three constitutional conventions. The 1889 convention only included eleven delegates who had served in the 1885 convention. (424) The diversity and turnover in the constitutional conventions was comparable to that in the territorial legislature from 1862 to 1889, where 70% of legislators only served one term and only 15% served two terms. (425)
Viewing the statehood movement in South Dakota as broadly-supported and reform-oriented is a deviation from the interpretation offered by Howard Lamar in his 1956 book Dakota Territory. (426) According to Lamar, the statehood movement was driven by an “oligarchy” in southern Dakota which was economically “conservative” and dismissive of railroad and corporate regulations. (427) Lamar’s analysis, which was written during the age of progressive history and prior to the great wave of interest in political republicanism, overlooks the democratic heritage embraced by the advocates of statehood and the republicanism which infused the movement. (428) The numerous elections and conventions surrounding statehood, the unanimous approval of constitutions by convention delegates, the diverse number of individuals who served in the constitutional conventions and the territorial legislature, and the popular votes in favor of the constitution also indicate public support and undercut the notion of an “oligarchy” controlling the statehood movement. Strong leaders certainly existed in places such as Dakota Territory, but this should not be taken as evidence of minimal public support or as evidence that the preference for statehood was not popularly shared. (429) As Jean Baker has noted, “to see only the control of leaders is to distort the degree of consensual fraternity” in a political movement. (430) Lamar’s image of an oligarchy of economic elites squelching the hopes of yeoman farmers is part of what Paul Kleppner calls a “strong economic determinist bias” which once “permeated American political historiography,” especially in the early decades of the twentieth century, and privileged economic motives over widely shared assumptions within the political culture and slighted the role of ethnicity and religion. (431) While the role of material striving was certainly a strong component of life during the late nineteenth century, Americans, as Boyd Shafer noted, also “dreamed of equity, good will, freedom and abundance.” (432) A recognition of these latter influences is the best lens with which to view the Dakota statehood movement and its effort to craft a constitution.
The ubiquitous reliance on republican ideas, language, references, and symbols in Dakota Territory during the 1880s indicates a broad-based consensus instead of a polity divided into economic classes. The constitutional conventions of the 1880s also included a large number of farmers and the Farmers’ Alliance, which was highly organized in Dakota Territory at the time, openly praised the constitution. Far from ignoring railroad regulation at the behest of capitalists, the constitutional delegates borrowed the most stringent provisions of the Midwestern Granger constitutions. The absence of “radical” reforms, which Lamar uses as evidence of oligarchic control of the statehood process, is better seen as evidence of the consensus in favor of regulations upon railroads. These regulations were found in Midwestern constitutions which made such provisions commonplace. The rejection of prohibition and suffrage, which Lamar sees as “reform” provisions, was primarily based on cultural objections and pragmatism, not the economic self-interest of statehood advocates. The statehooders wanted to avoid provisions which a large number of Dakotans might object to and which could undermine the prospects of statehood and the realization of settlers’ republican ambitions.
(1.) James A. Gardner, The Failed Discourse of State Constitutionalism, 90 MICH. L. REV. 761, 765-66 (1992).
(2.) Id. at 781.
(3.) Id. at 771-72.
(4.) Robert A. Schapiro, Identity and Interpretation in State Constitutional Law, 84 VA. L. REV. 389, 391 (1998). See Paul W. Kahn, Interpretation and Authority in State Constitutionalism, 106 HARV. L. REV. 1147, 1148 (1993).
(5.) Shirley S. Abrahamson, Reincarnation of State Courts, 36 SW. L.J. 951, 966 (1982).
(6.) Brendtro v. Nelson, 2006 SD 71, [paragraph] 23, 720 N.W.2d 670, 678 (relying on works of South Dakota history to interpret South Dakota law relating to the initiative and referendum); Doe v. Nelson, 2004 SD 62, [paragraph] 10-13, 680 N.W.2d 302, 306-07 (quoting Poppen v. Walker, 520 N.W.2d 238, 242 (S.D. 1994)) (holding that “the object of constitutional construction is =to give effect to the intent of the framers of the organic law and of the people adopting it'”); Pitts v. Larson, 2001 SD 151, [paragraph] 24, 638 N.W.2d 254, 260 (stating that “Where the meaning of a constitutional provision is unclear, it is appropriate to look to the intent of the drafting bodies, which in this case were the [South Dakota] Constitutional Conventions of 1883, 1885 and 1889”); Green v. Siegel, Barnett & Schutz, 1996 SD 146, [paragraph] 19, 557 N.W.2d 396, 402 n.10 (holding that a South Dakota judge’s 1897 decision was “particularly enlightening” because the judge was a delegate to the 1885 and 1889 constitutional conventions and because he “actively participated in the debate” on the constitutional provision in question).
(7.) City of Sioux Falls v. Sioux Falls Firefighters, Local 814, 234 N.W.2d 35, 37 (S.D. 1975).
(8.) Our Birthday, DAILY ARGUS-LEADER, July 5, 1889 (notes that the weather “opened fair and clear and so continued all day”).
(9.) SIOUX FALLS: METROPOLIS OF SOUTH DAKOTA 3 (1889).
(10.) The Dakota Pair, PIONEER PRESS, July 5, 1889. “They were all well cared for and seemed well satisfied with what had been done for them. The parade was a fine affair.” Id.
(11.) Fourth at Sioux Falls, PIONEER PRESS, June 29, 1889.
(12.) The Dakota Pair, supra note 10.
(13.) DANA BAILEY, HISTORY OF MINNEHAHA COUNTY 426-27 (1899); The Convention, DAILY PRESS & DAKOTAIAN, July 11, 1889; II SOUTH DAKOTA CONSTITUTIONAL CONVENTION, 1889, 3 (1907). The role of Germania Societies in promoting German settlement in the West, Texas, and Wisconsin in particular, is discussed in JOHN A. HAWGOOD, THE TRAGEDY OF GERMAN-AMERICA 99100, 141, 147, 213 (1940).
(14.) Our Birthday, supra note 8; The Third Day, DAILY ARGUS-LEADER, July 6, 1889; Fourth at Sioux Falls, supra note 11.
(15.) See Cass R. Sunstein, Beyond the Republican Revival, 97 YALE L.J. 1539 (1988); Morton J. Horwitz, Republicanism and Liberalism in American Constitutional Thought, 29 WM. & MARY L. REV. 57 (1987).
(16.) See MAURIZIO VIROLI, REPUBLICANISM 22-23 (2002); Frederic C. Lane, At the Roots of Republicanism, LXXI AM. HIST. REV. 404 (Jan. 1966). Lane notes that “Machiavelli is best known for advising princes to be unscrupulous … but [that] his standard of health was republican.” Id. at 415.
Quentin P. Taylor sees Machiavelli as the “father of modern republicanism” and “the unrecognized ‘grandfather’ of the American republic.” QUENTIN P. TAYLOR, THE OTHER MACHIAVELLI: REPUBLICAN WRITINGS BY THE AUTHOR OF “THE PRINCE” ix, xi (1998). See also BAILYN, ATLANTIC HISTORY: CONCEPT AND CONTOURS 52-53 (2005); ISEULT HONOHAN, CIVIC REPUBLICANISM 44-63 (2002); Daniel T. Rodgers, Republicanism: The Career of a Concept, 79 J. AM. HIST. 11 (1992).
(17.) Paul A. Rahe, MACHIAVELLI’S LIBERAL REPUBLICAN LEGACY xix-xxx (Paul A. Rahe ed., 2006); ROBERT A. KOCIS, MACHIAVELLI REDEEMED: RETRIEVING HIS HUMANIST PERSPECTIVES ON EQUALITY, POWER, AND GLORY 198-208 (1998).
(18.) ROBERT E. SHALHOPE, THE ROOTS OF DEMOCRACY: AMERICAN THOUGHT AND CULTURE, 1760-1800, 44-46 (1990). According to Daniel Rodgers, the main “themes” of republicanism expressed during the American Revolution included “the Americans’ fear of British corruption, fear of the grasping, fatal effects of luxury, fear of their own inability to sustain the self-denying virtues on which a republic depended.” Rodgers, supra note 16, at 15.
(19.) JOHN PATRICK DIGGINS, LOST SOUL OF AMERICAN POLITICS: VIRTUE, SELF-INTEREST, AND THE FOUNDATIONS OF LIBERALISM 363 (1986); Donald K. Pickens, The Turner Thesis and Republicanism: A Historiographical Commentary, 61 PAC. HIST. REV. 327 (1992) (quoting DOROTHY ROSS, ORIGINS OF AMERICAN SOCIAL SCIENCE 25 (1992)). The settlement of Dakota Territory as a “Machiavellian moment” should not be taken to mean an act of ruthlessness or extreme realism, which is the context in which Machiavelli is sometimes invoked, but instead as an instance of republican vigor. See KOCIS, supra note 17.
(20.) Jean Baker, From Belief into Culture: Republicanism in the Antebellum North, 37 AM. Q. 538 (Autumn 1985).
(21.) ROWLAND BERTHOFF, REPUBLIC OF THE DISPOSSESSED: THE EXCEPTIONAL OLD-EUROPEAN CONSENSUS IN AMERICA 6 (1997).
(22.) Id. at 146, 149.
(23.) Id. at 151.
(24.) Id. at 153.
(26.) Pickens, supra note 19, at 331.
(27.) T.J. JACKSON LEARS, NO PLACE OF GRACE: ANTIMODERNISM AND THE TRANSFORMATION OF AMERICAN CULTURE, 1880-1920, 26-27 (1981).
(28.) Pickens, supra note 19, at 327.
(29.) Joseph Ward, The Territorial System of the United States, ANDOVER REV. 57 (1888).
(30.) GEORGE WASHINGTON KINGSBURY, II HISTORY OF DAKOTA TERRITORY, SOUTH DAKOTA: ITS HISTORY AND ITS PEOPLE 1670 (1915).
(31.) Id. at 1732.
(32.) WILLIAM H.H. BEADLE, PERSONAL MEMOIRS OF WILLIAM H.H. BEADLE (1906), reprinted in 3 SOUTH DAKOTA HISTORICAL COLLECTIONS, at 216.
(33.) Doane Robinson, Sketch of South Dakota’s History, N.Y. EVANGELIST, Oct. 10, 1901.
(34.) Report of the S. Comm. on Territories, “Admission of Dakota,” 50th Cong., 1st Sess. 42 (Jan. 23, 1888) (available at Beinecke Library, Yale University) [hereinafter “Admission of Dakota”].
(35.) LOUIS B. WRIGHT, CULTURE ON THE MOVING FRONTIER 88 (1955); see Thomas J. Wertenbaker, The Molding of the Middle West, 52 AM. HIST. REV. 227 (1948); JOHN D. BARNHART, VALLEY OF DEMOCRACY: THE FRONTIER VERSUS THE PLANTATION IN THE OHIO VALLEY 122 (1953).
(36.) SUSAN E. GRAY, THE YANKEE WEST: COMMUNITY LIFE ON THE MICHIGAN FRONTIER 2-6 (1996); see GEORGE MCKENNA, THE PURITAN ORIGINS OF AMERICAN PATRIOTISM 3 (2007).
(37.) NICOLE ETCHESON, THE EMERGING MIDWEST: UPLAND SOUTHERNERS AND THE POLITICAL CULTURE OF THE OLD NORTHWEST, 1787-1861, 13 (1996).
(38.) See Thomas J. Schlereth, The New England Presence on the Midwest Landscape, 9 OLD NW. 126-28 (Summer 1983).
(39.) GORDON MORRIS BAKKEN, THE DEVELOPMENT OF LAW ON THE ROCKY MOUNTAIN FRONTIER: CIVIL LAW AND SOCIETY, 1850-1912, 67, 130 (1983) [hereinafter BAKKEN I]; LAWS PASSED AT THE FIRST SESSION OF THE LEGISLATURE OF THE STATE OF SOUTH DAKOTA 254 (1890); Bernard Floyd Hyatt, A Legal Legacy for Statehood: The Development of the Territorial Judicial System in Dakota Territory, 1861-1889 (1987) (unpublished Ph.D. dissertation, Texas Tech University) (on file with author). Of the 19 justices appointed to Dakota Territorial Supreme Court from 1882-1889, six were from the East, four were from the Midwest, and eight were from Dakota Territory. Id. at 439. In 1877, the territory adopted much of Field statutory code and “Dakota did not change the Field draft provisions concerning the relationship between the Code and the Anglo-American common law, and this left the reconciliation of what might seem to be inconsistent commands to the courts.” Chief Justice Shannon, “chief architect” of the code revision, said thus “the common law resorted to only when the Code was silent or ambiguous.” Id. at 171-72.
(40.) WRIGHT, supra note 35, at 221.
(41.) Id. at 119, 209.
(42.) The School and Endowment Lands, in BEADLE PAPERS FF #1, DB 3536A (South Dakota State Historical Society).
(43.) Lydia M. Swift to Emma (November 1883), at FF H92-125, DB 3327B (South Dakota State Historical Society); ONE-ROOM COUNTRY SCHOOL xiii (Norma C. Wilson & Charles Woodward eds., 1999).
(44.) Ella S. to Dill (July 16, 1880), at FF H92-125, DB 3327B (South Dakota State Historical Society).
(45.) BEADLE, supra note 32.
(46.) WRIGHT, supra note 35, at 8.
(47.) John David Unruh, South Dakota in 1889 (1939) (unpublished doctoral dissertation, University of Texas) (on file with author).
(49.) NORTH DAKOTA, SOUTH DAKOTA, MONTANA & WASHINGTON: THE NEW STATES 28 (1889) (available at Beinecke Library, Yale University) [hereinafter NORTH DAKOTA, SOUTH DAKOTA]; L.E.Q. (Lemuel Ely Quigg), New Empires in the Northwest: The Dakotas, Montana and Washington Resources, Progress, Industrial Development and Prosperity of Four Great Commonwealths, 1 “GO WEST”: LIBRARY OF TRIBUNE EXTRAS 13 (Horace Greeley ed., 1889) (available at Beinecke Library, Yale University).
(50.) Untitled Article, DAILY PRESS & DAKOTAIAN, Sept. 7, 1883.
(51.) Untitled Article, GRANT COUNTY REV., Mar. 14, 1889.
(52.) FREDERICK JACKSON TURNER, THE PROBLEM OF THE WEST (1896), reprinted in THE POPULISTS IN HISTORICAL PERSPECTIVE 7 (Raymond J. Cunningham ed., 1968).
(53.) ANDREW R. L. CAYTON & PETER S. ONUF, THE MIDWEST AND THE NATION: RETHINKING THE HISTORY OF AN AMERICAN REGION 3 (1990).
(54.) Id. at xvii.
(55.) Id. at 1; BARNHART, supra note 35, at 134-35; ORVILLE VERNON BURTON, THE AGE OF LINCOLN 16 (2007).
(56.) CAYTON & ONUF, supra note 53, at 8; BARNHART, supra note 35, at 122-23.
(57.) CAYTON & ONUF, supra note 53, at 19.
(58.) Id. at 70.
(59.) BARNHART, supra note 35, at 121.
(60.) John D. Hicks, The Development of Civilization in the Middle West, 1860-1900, in SOURCES OF CULTURE IN THE MIDDLE WEST: BACKGROUNDS VERSUS FRONTIER 77 (Dixon Ryan Fox ed., D. Appleton-Century Co., Inc. 1964) (1934) [hereinafter Hicks I].
(61.) ETCHESON, supra note 37, at 142-43.
(62.) William H.H. Beadle, Letter to the Editor, N.Y. TRIBUNE, Jan. 21, 1878, in BEADLE PAPERS, FF #1, DB 3536A (South Dakota State Historical Society).
(63.) HERBERT S. SCHELL, HISTORY OF CLAY COUNTY SOUTH DAKOTA 105 (1976).
(64.) Malcolm J. Rohrbaugh, “The Continuing Search for the American West: Historians Past, Present, Future,” in OLD WEST/NEW WEST 136 (Gene M. Gressley ed., 1994).
(65.) HOWARD WAYNE MORGAN, FROM HAYES TO MCKINLEY: NATIONAL PARTY POLITICS 18771896, 372 (1969).
(66.) GILBERT FITE, THE FARMERS’ FRONTIER, 1865-1900, 25 (1966).
(67.) HOWARD ROBERTS LAMAR, DAKOTA TERRITORY, 1861-1889: A STUDY OF FRONTIER POLITICS 190 (Yale University Press 1996) (1956); L.E.Q., supra note 49, at 13.
(68.) Charles N. Herreid, The Pioneers of Dakota, in 13 SOUTH DAKOTA HISTORICAL COLLECTIONS, at 18-19.
(69.) Ward, supra note 29, at 53.
(70.) Id. at 55.
(71.) KINGSBURY, supra note 30, at 1442.
(72.) Id. at 1444-45.
(73.) Id. at 1528.
(74.) Id. at 1517.
(75.) Id. at 1570.
(76.) RAY ALLEN BILLINGTON, AMERICA’S FRONTIER HERITAGE 64 (1966).
(77.) Petition, July 13, 1787-July 13, 1886, Dakota State League, in FF H75.54, DB 3538A (South Dakota State Historical Society).
(78.) RALPH HENRY GABRIEL, THE COURSE OF AMERICAN DEMOCRATIC THOUGHT: AN INTELLECTUAL HISTORY SINCE 1815, 251-52 (1940); Kermit L. Hall, Mostly Anchor and Little Sail: The Evolution of American State Constitutions, in TOWARD A USABLE PAST: LIBERTY UNDER STATE CONSTITUTIONS 389 (Paul Finkelman & Stephen E. Gottlieb eds., 1991); Michael Kammen notes that “throughout the eighties other books about the Constitution, aimed at a general audience, appeared at an accelerating pace.” MICHAEL KAMMEN, A MACHINE THAT WOULD GO ITSELF: THE CONSTITUTION IN AMERICAN CULTURE 127-28 (1986). Kammen also notes that “the half century following 1880 involved the emergence of constitutional history as a major field of scholarship in the United States.” Id. at 176.
(79.) GABRIEL, supra note 78, at 251. On the development of the early nineteenth century consensus of support for the American Constitution, see JURGEN GEBHARDT, AMERICANISM: REVOLUTIONARY ORDER AND SOCIETAL SELF-INTERPRETATION IN THE AMERICAN REPUBLIC 168-69 (1993).
(80.) “Admission of Dakota,” supra note 34, at 4.
(81.) ROBERT DOLLARD, RECOLLECTIONS OF THE CIVIL WAR AND GOING WEST TO GROW UP WITH THE COUNTRY 268 (1906). See also BEADLE, supra note 32, at 121.
(82.) KINGSBURY, supra note 30, at 1759.
(83.) Review of territorial governor applications (Mar. 8, 1889) (available at FF Data Governor, DB 149, RG 48, Records of the Department of the Interior, Records of the Appointments Division, Field Office Appointment Papers, 1849-1907, Dakota Territory Appointment Papers, National Archives).
(84.) Frank Bloodgood, Homesteading in Custer Township, Beadle County, South Dakota, at 17-18, at FF H75.36, DB 3538A (South Dakota State Historical Society).
(85.) R. Hal Williams, The Politics of the Gilded Age, in AMERICAN POLITICAL HISTORY: ESSAYS ON THE STATE OF THE DISCIPLINE 111 (John F. Marszalek & Wilson D. Miscamble eds., 1997). See EARL J. HESS, LIBERTY, VIRTUE, AND PROGRESS: NORTHERNERS AND THEIR WAR FOR THE UNION 2627 (1997) (describing how the soldiers viewed the high-stakes of the Civil War).
(86.) Williams, supra note 85, at 111. The “stronghold” of the GAR was the Midwest. WALLACE EVAN DAVIES, PATRIOTISM ON PARADE: THE STORY OF VETERANS’ AND HEREDITARY ORGANIZATIONS IN AMERICA, 1783-1900, 36 (1955).
(87.) WI-IYOHI, May 1, 1951, vol. V, no. 2; HERBERT S. SCHELL, HISTORY OF SOUTH DAKOTA 169 (1961).
(88.) Herbert T. Hoover, Territorial Politics and Politicians, in A NEW HISTORY OF SOUTH DAKOTA 134, 137, 144 (Herbert T. Hoover & John E. Miller eds., 2004).
(89.) DAKOTA IMPRINTS, 1858-1889, 102 (Albert Allen ed., 1947).
(90.) KINGSBURY, supra note 30, at 1525.
(91.) Id. at 1761.
(92.) Id. at 1444-45.
(93.) Id. at 1466.
(94.) Id. at 1741.
(95.) Carrol Gardner Green, The Struggle of South Dakota to Become a State, in XII SOUTH DAKOTA HISTORICAL COLLECTIONS, at 528.
(96.) FF H75.36, DB 3538A (South Dakota State Historical Society).
(97.) Letter from Lewis E. Bloodgood to father from Pine Bluff, Arkansas (Nov. 12, 1864), at FF H75.36, DB 3538A (South Dakota State Historical Society).
(98.) Letter from Lewis E. Bloodgood to mother and father from New Orleans Marine Hospital (May
9, 1865), at FF H75.36, DB 3538A (South Dakota State Historical Society).
(99.) Bloodgood, supra note 84, at 5-6.
(100.) II THE PROVINCE AND THE STATES 470 (Weston Arthur Goodspeed, ed., 1904); John E. Miller, The State of South Dakota, in 3 THE UNITING STATES: THE STORY OF STATEHOOD FOR THE FIFTY UNITED STATES 1106, 1109 (Benjamin F. Shearer ed., 2004).
(101.) Letter from Waldo Potter to Augustine Davis (Jan. 4, 1888), in II AUGUSTINE DAVIS COLLECTION FF Letters, Jan.-Feb. 1888, DB 3544B, Kingsbury, (1898) (South Dakota State Historical Society).
(102.) LAWS PASSED AT THE SEVENTEENTH SESSION OF THE LEGISLATIVE ASSEMBLY OF THE TERRITORY OF DAKOTA 343 (Bismarck Tribune Printers & Binders 1887) [hereinafter SEVENTEENTH SESSION LAWS].
(103.) Id. at 399.
(104.) JOHN D. HICKS, THE POPULIST REVOLT: A HISTORY OF THE FARMERS’ ALLIANCE AND THE PEOPLE’S PARTY 10 (1931) [hereinafter HICKS II].
(105.) Growth of the Grand Army Republic, ABERDEEN DAILY NEWS, Apr. 24, 1885; KINGSBURY, supra note 30, at 1385, 1757; LAMAR, supra note 67, at 246. John Higham called the GAR the “most powerful patriotic society of the day.” JOHN HIGHAM, STRANGERS IN THE LAND: PATTERNS OF AMERICAN NATIVISM, 1860-1925, 57 (1988).
(106.) The G.A.R. Reunion, BISMARCK TRIBUNE, Sept. 17, 1885.
(107.) SEVENTEENTH SESSION LAWS, supra note 102, at 157.
(108.) KINGSBURY, supra note 30, at 1447, 1465.
(109.) Andrew R.L. Cayton & Susan E. Gray, The Story of the Midwest: An Introduction, in THE IDENTITY OF THE AMERICAN MIDWEST: ESSAYS ON REGIONAL HISTORY 16-17 (Andrew R.L. Cayton & Susan E. Gray eds., 2001).
(110.) Id. at 15.
(111.) Marc W. Kruman, The Second American Party System and the Transformation of Revolutionary Republicanism, 12 J. EARLY REPUBLIC 536 (Winter 1992).
(112.) DAVID NOBLE, HISTORIANS AGAINST HISTORY: THE FRONTIER THESIS AND THE NATIONAL COVENANT IN AMERICAN HISTORICAL WRITING SINCE 1830, 49 (1965).
(113.) LAMAR, supra note 67, at 253.
(114.) I DAKOTA CONSTITUTIONAL CONVENTION, 1885, 658 (1907).
(115.) An Address by General Hugh J. Campbell, DAILY PRESS & DAKOTAIAN, Oct. 18, 1883.
(117.) DOLLARD, supra note 81, at 233.
(118.) Forming Organic Laws, PIONEER PRESS, Sept. 9, 1885.
(119.) Untitled excerpt from CHICAGO INTER OCEAN, in DAILY PRESS & DAKOTAIAN, Sept. 2, 1885.
(120.) Forming Organic Laws, supra note 118.
(121.) DOLLARD, supra note 81, at 247, 249.
(122.) Getting Ready for Important Business, DAILY PRESS & DAKOTAIAN, Sept. 8, 1883.
(123.) DOLLARD, supra note 81, at 257.
(124.) Judge Moody Speaks, PIONEER PRESS, Jul. 6, 1889.
(125.) Untitled Article, DAILY PRESS & DAKOTAIAN, Sept. 11, 1883.
(126.) DOLLARD, supra note 81, at 242.
(127.) An Address by General Hugh J. Campbell, DAILY PRESS & DAKOTAIAN, Oct. 18, 1883.
(128.) DOLLARD, supra note 81, at 249.
(129.) Id. at 235; Journals of the 9th, 10th, and 11th Annual Convocations, Christ’s Church, Protestant Episcopal Church, available at Beinecke Library, Yale University.
(130.) DOLLARD, supra note 81, at 247.
(131.) Proceedings from the Convention in Sioux Falls, DAILY PRESS & DAKOTAIAN, Sept. 6, 1883.
(133.) Untitled excerpt from JAMESTOWN ALERT, in BISMARCK TRIBUNE, Sept. 14, 1883. See generally, James E. Sefton, Tribute Pennies and Tribute Clauses: Religion in the First Constitutions of the Trans-Mississippi States, 1812-1912, in THE AMERICAN WEST AND THE RELIGIOUS EXPERIENCE 72 (William M. Kramer ed., 1974).
(134.) Church of the Holy Trinity v. United States, 143 U.S. 457, 468, 470 (1892).
(135.) Interesting Resume of the Work of the Constitution Makers, DAILY PRESS & DAKOTAIAN, Sept. 20, 1883.
(136.) An Able Appeal for Statehood, excerpted from SPEARFISH REGISTER, in DAILY PRESS &
DAKOTAIAN, Sept. 6, 1883.
(137.) An Address by General Hugh J. Campbell, DAILY PRESS & DAKOTAIAN, Oct. 18, 1883.
(138.) The Constitutional Convention Pushing its Labors with Commendable Vim, PIONEER PRESS, Sept. 24, 1885.
(140.) BAKKEN I, supra note 39, at 103.
(141.) S.D. CONST. art. VI, [sections] 27.
(142.) See EARL S. POMEROY, THE TERRITORIES AND THE UNITED STATES, 1861-1890: STUDIES IN COLONIAL ADMINISTRATION (1947) [hereinafter POMEROY I].
(143.) JOHN D. HICKS, THE CONSTITUTIONS OF THE NORTHWEST STATES 6 (1923) [hereinafter HICKS III]; GORDON MORRIS BAKKEN, ROCKY MOUNTAIN CONSTITUTION MAKING, 1850-1912, 101
(1987) [hereinafter BAKKEN II]. For more on the constitutional law relating to the territorial system, see generally GARY LAWSON & GUY SEIDMAN, THE CONSTITUTION OF EMPIRE: TERRITORIAL EXPANSION AND AMERICAN LEGAL HISTORY (2004).
(144.) I DAKOTA CONSTITUTIONAL CONVENTION, 1885, supra note 114, at 328.
(145.) Ward, supra note 29, at 52; Miller, The State of South Dakota, supra note 100, at 1105.
(146.) POMEROY I, supra note 142, at 104 (internal quotations omitted).
(147). Unruh, supra note 47, at 123.
(148.) Ward, supra note 29, at 52-62.
(149.) Id. at 62. The territorial system that the Dakotans protested against was much more democratic than earlier iterations of the system, especially prior to the 1830s. See POMEROY I, supra note 142, at 97.
(150.) BEADLE, supra note 32, at 199.
(151.) Untitled Article, DAILY PRESS & DAKOTAIAN, Sept. 21, 1883, excerpting Not for His Health: Ordway Came Here for an Entirely Different Purpose-How He Proposed to Run the Machine, SIOUX FALLS PRESS. The editor of the Sioux Falls Press in 1883 had been the editor of the Pantagraph in 1880. The editor said he refused Ordway’s overtures. The editors of the Press and Dakotaian and the Yankton Herald also reported that Ordway attempted to persuade them to join his combination. Untitled Article, DAILY PRESS & DAKOTAIAN, Sept. 24, 1883, excerpting Good for the Soul, YANKTON HERALD. Ruth Elizabeth Bergman noted Ordway’s “understanding of the power of the printed word. This understanding caused him, as one of his first acts after he became governor, to begin to build up a press in the territory which he believed could be relied upon to influence public opinion as he desired.” Ruth Elizabeth Bergman, Printing in South Dakota During the Territorial Period (1936) (unpublished masters thesis, University of Illinois) (on file with author).
(152.) Ward, supra note 29, at 52.
(153.) Id. at 58.
(154.) Id. at 53-55.
(155.) Id. at 60-61.
(156.) Id. at 55, 62.
(157.) Id. at 55.
(158.) Id. at 57.
(159.) HICKS III, supra note 143, at 7.
(160.) DOLLARD, supra note 81, at 270.
(161.) Untitled Article, DAILY PRESS & DAKOTAIAN, Oct. 4, 1883.
(162.) HICKS III, supra note 143, at 21. The Independent deemed Democratic opposition to Dakota statehood a “disgrace.” Untitled Article, THE INDEPENDENT, Jan. 28, 1886.
(163.) Let Dakota Come In, BOSTON DAILY ADVERTISER, reprinted in BISMARCK TRIBUNE, Sept. 8, 1885. On the Nevada controversy, see EARL POMEROY, THE PACIFIC SLOPE: A HISTORY OF CALIFORNIA, OREGON, WASHINGTON, IDAHO, UTAH, AND NEVADA 71 (1965) [hereinafter POMEROY II].
(164.) BAKKEN II, supra note 143, at 6.
(165.) HICKS III, supra note 143, at 14.
(166.) Division of our Territory and Statehood for Both Halves: The Coming Constitutional Convention-Strong Arguments in Behalf of Two States, CHICAGO INTER OCEAN, excerpted in DAILY PRESS & DAKOTAIAN, Sept. 2, 1885.
(167.) DOLLARD, supra note 81, at 262.
(168.) Untitled Article, DAILY PRESS & DAKOTAIAN, Sept. 8, 1885; HICKS III, supra note 143, at 14 n.29.
(169.) Successful Straddling, PIONEER PRESS, Sept. 13, 1883.
(170.) Untitled Article, PIONEER PRESS, Sept. 14, 1883; Untitled Article, ST. PAUL GLOBE, excerpted in BISMARCK TRIBUNE, Sept. 21, 1883; Untitled Article, FARGO REPUBLICAN, excerpted in DAILY PRESS & DAKOTAIAN, Sept. 8, 1883; Taking a Constitutional, PIONEER PRESS, Sept. 8, 1883.
(171.) Untitled Article, GRAND FORKS HERALD, excerpted in DAILY PRESS & DAKOTAIAN, Aug. 29, 1883.
(172.) Untitled Article, FARGO REPUBLICAN, excerpted in DAILY PRESS & DAKOTAIAN, Aug. 29, 1883.
(173.) Untitled Article, FARGO REPUBLICAN, excerpted in DAILY PRESS & DAKOTAIAN, Sept. 3, 1883; Untitled Article, FARGO REPUBLICAN, excerpted in DAILY PRESS & DAKOTAIAN, Sept. 8, 1883.
(174.) Interesting Resume of the Work of the Constitution Makers, DAILY PRESS & DAKOTAIAN, Sept. 20, 1883.
(177.) Untitled Article, DICKEY COUNTY LEADER, excerpted in Statehood, BISMARCK TRIBUNE, Sept. 21, 1883.
(178.) Untitled Article, DAILY PRESS & DAKOTAIAN, Sept. 11, 1883.
(179.) BAKKEN II, supra note 143, at 12; Earl Pomeroy, Toward a Reorientation of Western History, MISS. VALLEY HIST. REV. 585 (Mar. 1955) [hereinafter Pomeroy III]; HICKS III, supra note 143, at 33.
(180.) An Address from the State Executive Committee (Bartlett Tripp, Chair), DAILY PRESS & DAKOTAIAN, Oct. 25, 1883; NORTH DAKOTA, SOUTH DAKOTA, supra note 49, at 30.
(181.) An Address from the State Executive Committee (Bartlett Tripp, Chair), supra note 182.
(183.) L.W. Lansing manuscript, FF Constitutional Conventions, DB 5599 (South Dakota State Historical Society).
(184.) An Address by General Hugh J. Campbell, DAILY PRESS & DAKOTAIAN, Oct. 18, 1883.
(185.) Untitled Article, DAILY PRESS & DAKOTAIAN, Sept. 24, 1883.
(186.) An Address by General Hugh J. Campbell, supra note 184.
(187.) BAKKEN II, supra note 143, at 5-6. On Congressional enabling legislation, see Henry Z. Johnson, The Admission of New States, CENTRAL L.J. 269 (Oct. 3, 1890).
(188). POMEROY I, supra note 142, at 100.
(189.) Crisis at Sioux Falls: A Disturbing Declaration, PIONEER PRESS, Sept. 19, 1885.
(190.) Judge Edgerton Argues Against Revolution in the Dakota Constitutional Convention, PIONEER PRESS, Sept. 20, 1885.
(191.) Harmony at Sioux Falls, PIONEER PRESS, Sept. 22, 1885.
(192.) Dakota’s Organic Law, PIONEER PRESS, Sept. 28, 1885. Echoing Edgerton’s conservative counsel, James Kloppenberg has noted that “The most radical and profound truth of popular sovereignty–one of the core principles of democracy–is that it puts everything up for grabs.” James T. Kloppenberg, From Hartz to Tocqueville: Shifting the Focus from Liberalism to Democracy in America, in THE DEMOCRATIC EXPERIMENT: NEW DIRECTIONS IN AMERICAN POLITICAL HISTORY 351 (Meg Jacobs, William J. Novak, & Julian E. Zelizer eds., 2003).
(193.) An Address by General Hugh J. Campbell, supra note 184.
(194.) Untitled Article, CHICAGO INTER OCEAN excerpted in DAILY PRESS & DAKOTAIAN, Sept. 11, 1883.
(195.) Taking a Constitutional, supra note 170.
(196.) Untitled Article, PIONEER PRESS, Sept. 6, 1883.
(197.) Taking a Constitutional, supra note 170.
(198.) The Reports Enrolled, and Two Well Under Way, DAILY PRESS & DAKOTAIAN, Sept. 21, 1885. 199. Id.
(201.) The Attempt Too Much, PIONEER PRESS, Sept. 25, 1885; I DAKOTA CONSTITUTIONAL CONVENTION, supra note 114, at 403.
(202.) Hans Janssen, Bishop Marty in the Dakotas, AMERICAN-GERMAN REV. 24 (June-July 1961).
(203.) HICKS III, supra note 143, at 31.
(205.) Interesting Resume of the Work of the Constitution Makers, DAILY PRESS & DAKOTAIAN, Sept. 19, 1883.
(206.) BAKKEN II, supra note 143, at 103.
(207.) S.D. CONST. art. III, [sections][sections] 12, 28; HICKS III, supra note 143, at 57.
(208.) Untitled Article, DAILY PRESS & DAKOTAIAN, Oct. 4, 1883.
(210.) HICKS III, supra note 143, at 34.
(211.) I DAKOTA CONSTITUTIONAL CONVENTION, supra note 114, at 557.
(212.) HICKS III, supra note 143, at 38; see Prohibiting Public Debts, BANKERS’ MAGAZINE & STATISTICAL REGISTER (Nov. 1883). Constitutional limits on state indebtedness gained steam in the 1840s and 1850s. Kruman, supra note 111, at 530. Judges also sought to limit activist legislatures. MORTON KELLER, AFFAIRS OF STATE: PUBLIC LIFE IN LATE NINETEENTH CENTURY AMERICA 345-46, 358-70 (1977).
(213.) DOLLARD, supra note 81, at 224.
(214.) Untitled Article, DAILY PRESS & DAKOTAIAN, Sept. 15, 1883.
(215.) HICKS III, supra note 143, at 53, 121; The Convention, BISMARCK TRIBUNE, Sept. 14, 1883; Continuation of the Proceedings of the Constitutional Convention, DAILY PRESS & DAKOTAIAN, Sept. 15, 1883; Hall, supra note 78, at 396. Wisconsin adopted a constitutional amendment in 1874 limiting local indebtedness to 5% of assessed value of the local taxable property. GEORGE H. MILLER, RAILROADS AND THE GRANGER LAWS 142 (1971).
(216.) S.D. CONST. art. XI, [sections] 1; HICKS III, supra note 143, at 124.
(217.) The Sioux Falls Convention, BISMARCK TRIBUNE, Sept. 21, 1883.
(218.) S.D. CONST. art. III, [sections] 8 and art. IV, [sections] 5; HICKS III, supra note 143, at 60-62, 107.
(219.) HICKS III, supra note 143, at 78.
(220.) Proceedings of the Convention of the Citizens Constitutional Association of Dakota, 1882, in BARRETT LOWE, TWENTY MILLION ACRES: THE STORY OF AMERICA’S FIRST CONSERVATIONIST, WILLIAM HENRY HARRISON BEADLE 451 (1937).
(221.) HICKS III, supra note 143, at 78.
(222.) Id. at 84, 87-88 n.27; S.D. CONST. art. VIII, [sections][sections] 4-6, 11.
(223.) WILLIAM CRONON, NATURE’S METROPOLIS: CHICAGO AND THE GREAT WEST xv (W.W. Norton & Co. 1992) (1991).
(224.) Id. at 110.
(225.) Id. at 124.
(226.) L.E.Q., supra note 49, at 11.
(227.) CRONON, supra note 223, at 145.
(228.) HICKS II, supra note 104, at 4.
(229.) JAMES FREDERIC HAMBURG, THE INFLUENCE OF RAILROADS UPON THE PROCESSES AND PATTERNS OF SETTLEMENT IN SOUTH DAKOTA 105 (1981). On the railroad impact on Dakota Territory, see John E. Miller, Town Building in Eastern South Dakota during the Great Dakota Boom 1 (unpublished manuscript on file with author). One study also noted that “South Dakota is notable among the four new [Omnibus] States and indeed among most of the western States as having no railroads running entirely across the State east and west.” Because the transcontinental railroads preferred to locate in other states, South Dakota had “the advantage and disadvantage of having all the railroads that have been extended into it built for itself alone. It is indeed a magnificent tribute to the worth of South Dakota in and of itself, that so many miles of excellent road have been constructed within its borders, for every mile of railroad in South Dakota exists there for the reason that South Dakota east of the Missouri River can furnish profitable traffic and business for the line.” NORTH DAKOTA, SOUTH DAKOTA, supra note 49, at 39-40.
(230.) HAMBURG, supra note 229, at 132.
(231.) HICKS II, supra note 104, at 12.
(232.) Id. at 13.
(233.) HAMBURG, supra note 229, at 59.
(234.) JAMES W. ELY, JR., RAILROADS AND AMERICAN LAW 58 (2001).
(235.) BRUCE NELSON, LAND OF THE DACOTAHS 133 (1946).
(236.) ELY, supra note 234, at 58, 62.
(237.) SCOTT G. MCNALL, THE ROAD TO REBELLION: CLASS FORMATION AND KANSAS POPULISM, 1865-1900, 81 (1988).
(238.) HICKS II, supra note 104, at 72.
(239.) Miller, supra note 100, at 1107.
(240.) HICKS II, supra note 104, at 60; Benton H. Wilcox, An Historical Definition of Northwestern Radicalism, 26 MISS. VALLEY HIST. REV. 385 (Dec. 1939).
(241.) HICKS II, supra note 104, at 61.
(242.) Id. at 64.
(244.) NELSON, supra note 235, at 252; HICKS II, supra note 104, at 69.
(245.) ELWYN B. ROBINSON, HISTORY OF NORTH DAKOTA 202 (Inst. for Regional Studies 1995) (1966); Hyatt, supra note 39, at 438. See also ALBRO MARTIN, JAMES J. HILL AND THE OPENING OF THE NORTHWEST (1976).
(246.) See Northern Securities Co. v. United States, 193 U.S. 197 (1904); Jon Lauck, Toward an Agrarian Antitrust: A New Direction for Agricultural Law, 75 N.D. L. REV. 449, 450-53 (1999); Irene D. Neu, Empire Builder, American Style, 5 REVS. IN AM. HIST. 533 (Dec. 1977). In 1955, the Northern Pacific and the Great Northern again discussed a merger, which, in contrast to 1904, the Supreme Court
approved. As a result, the Great Northern, Northern Pacific, Burlington, and the Spokane, Portland and Seattle Railway merged on March 2, 1970, to form the Burlington Northern Railroad. “In 1967 the ICC approved the merger of the Great Northern Railway Company, the Northern Pacific Railway Company, and several subsidiaries. The effect was to undo the 1904 decision of the Supreme Court in the Northern Securities case, which had blocked the same combination as a violation of the antitrust laws.” ELY, supra note 234, at 276.
(247.) HICKS II, supra note 104, at 147.
(248.) ELY, supra note 234, at 89 (citing BAKKEN II, supra note 143, at 76-78).
(249.) Charles W. McCurdy, Justice Field and the Jurisprudence of Government-Business Relations: Some Parameters of Laissez Faire Constitutionalism, 1863-1897, in AMERICAN LAW AND THE CONSTITUTIONAL ORDER: HISTORICAL PERSPECTIVES 246 (1978).
(250.) MILLER, supra note 215, at 75-76, 81. On the trend toward including traditionally legislative matters such as economic regulation in state constitutions, see Albert L. Strum, The Development of American State Constitutions, 12 PUBLIUS: J. FED’ISM 67-68 (Winter 1982).
(251.) ELY, supra note 234, at 86.
(252.) ELY, supra note 234, at 86-87; MILLER, supra note 215, at 58; GERALD BERK, ALTERNATIVE TRACKS: THE CONSTITUTION OF AMERICAN INDUSTRIAL ORDER, 1865-1917, 77 (1994).
(253.) MILLER, supra note 215, at 173; BERK, supra note 253, at 81.
(254.) MILLER, supra note 215, at 187-88 (citing Munn v. Illinois, 94 U.S. 113, 126 (1876)); see ROBERT G. MCCLOSKEY & SANFORD LEVINSON, THE AMERICAN SUPREME COURT 85-88 (2005). The Munn court also noted the tradition of regulating ferries, bakers, millers, and other commercial interests and traced the practice back to England.
(255.) ELY, supra note 234, at 89 (citing BAKKEN II, supra note 143, at 76-78). “The Nebraska Constitution of 1875 and the Texas Constitution of 1876, for instance, declared railroads to be public highways and authorized the legislature to set =reasonable maximum rates of charges.'” There were similar efforts in the Georgia constitutional convention of 1877 and the California constitution of 187879. “These railroad clauses were part of a trend toward prolix state constitutions in the late nineteenth century; they also reflected deep concern over the economic power of railroads.”
(256.) MILLER, supra note 215, at 40-41.
(257.) MCCLOSKEY & LEVINSON, supra note 254, at 82-84.
(258.) BERK, supra note 252, at 80.
(259.) Id. at 14, 76, 100-101, 163.
(260.) S.D. CONST. art. XVII, [sections] 9; HICKS III, supra note 143, at 93-94.
(261.) S.D. CONST. art. XIII, [sections] 1; HICKS III, supra note 143, at 123-24.
(262.) S.D. CONST. art. XIII, [sections][sections] 2-3; MARIE LOUISE LOTZE, HOW SOUTH DAKOTA BECAME A STATE, reprinted in XIV SOUTH DAKOTA HISTORICAL COLLECTIONS 480 (1928); HICKS III, supra note 143, at 98.
(263.) HICKS III, supra note 143, at 90. I DAKOTA CONSTITUTIONAL CONVENTION, supra note 114, at 307.
(264.) HICKS III, supra note 143, at 91 n.2.
(265.) Id. at 90.
(266.) KINGSBURY, supra note 30, at 1525.
(267.) ELY, supra note 234, at 99.
(268.) Sioux Falls Convention, PIONEER PRESS, Sept. 4, 1883, at 9; I DAKOTA CONSTITUTIONAL CONVENTION, supra note 114, at 6.
(269.) Sioux Falls Convention, supra note 268, at 9; see LAMAR, supra note 67, at 201.
(270.) Sioux Falls Convention, supra note 268, at 9; DOLLARD, supra note 81, at 266.
(271.) Sioux Falls Convention, supra note 268, at 9; “Address to the People: Call for a Gathering to Create a Constitution” (Mar. 12, 1883), at FF H75.30, DB 3537A (South Dakota State Historical Society).
(272.) DOLLARD, supra note 81, at 269.
(273.) Sioux Falls Convention, supra note 268, at 9.
(274.) I DAKOTA CONSTITUTIONAL CONVENTION, supra note 114, at 6.
(275.) DOLLARD, supra note 81, at 233-34, 241-42.
(276.) Sioux Falls Convention, supra note 268, at 9.
(278.) DOLLARD, supra note 81, at 267.
(280.) The State of Dakota, DAILY LEADER, Sept. 3, 1883; Proceedings of the Convention at Sioux Falls, DAILY PRESS & DAKOTAIAN, Sept. 6, 1883, at 2.
(281.) A Probability that the Convention Will Adjourn Tomorrow Night, DAILY PRESS & DAKOTAIAN, Sept. 14, 1883, at 2.
(282.) The Sioux Falls Daily Leader proudly noted that Lauren Dunlap, manager of Chicago Inter Ocean’s Dakota Bureau, was in town to cover the event and that “of all the great papers” the Inter Ocean was “the staunchest and most helpful friend to Dakota.” The State of Dakota, supra note 280. Lamar noted that Dunlap also served as the Dakota Commissioner of Immigration. LAMAR, supra note 67, at 225-26. Lauren Dunlap’s reports were signed by his name in reverse “Palnud.” Lois Melvina Drake, The Influence of the Newspapers of Dakota Territory Upon the Administration of Nehemiah G. Ordway, Governor from 1880 to 1884, 50 (MA Thesis, University of Missouri, 1941). The official debates of the 1883 constitutional convention “were not preserved.” II SOUTH DAKOTA CONSTITUTIONAL CONVENTION, supra note 13, at 1.
(283.) Dakota Statehood, PIONEER PRESS, Sept. 5, 1883, at 4.
(288.) Bartlett Tripp Elected Permanent President of the Convention, DAILY PRESS & DAKOTAIAN, Sept. 5, 1883, at 2; Organic Law for Dakota, PIONEER PRESS, Sept. 6, 1883, at 2.
(289.) Untitled Article, DAILY LEADER (Sioux Falls), Sept. 5, 1883.
(290.) Bartlett Tripp Elected Permanent President of the Convention, supra note 288, at 2.
(291.) South Dakota Convention, BISMARCK TRIBUNE, Sept. 21, 1883, at 1.
(292.) The Sioux Falls Convention, BISMARCK TRIBUNE, Sept. 7, 1883, at 7.
(293.) DOLLARD, supra note 81, at 257.
(294.) Organic Law for Dakota, supra note 288, at 2; Taking a Constitutional, supra note 170, at 5.
(295.) Dakota Deliberations, PIONEER PRESS, Sept. 9, 1883, at 3.
(296.) Devising a Constitution, PIONEER PRESS, Sept. 12, 1883, at 4.
(297.) The Doings of the Constitutional Convention at Its Recent Session at the City of Sioux Falls, BISMARK TRIBUNE, Sept. 7, 1883, at 7.
(298.) Untitled Article, CHICAGO INTER-OCEAN CORRESPONDENCE, Sept. 20, 1883.
(299.) Dakota Deliberations, supra note 295, at 3.
(302.) Devising Organic Law, PIONEER PRESS, Sept. 11, 1883, at 2.
(303.) Devising a Constitution, supra note 296, at 4.
(304.) South Dakota: The Constitutional Convention, PIONEER PRESS, Sept. 13, 1883, at 1.
(306.) The Dakota Law-Makers, PIONEER PRESS, Sept. 18, 1883, at 3.
(307.) Interesting Resume of the Work of the Constitution Makers, DAILY PRESS & DAKOTAIAN, Sept. 20, 1883, at 4.
(309.) Id.; JOURNAL OF THE CONSTITUTIONAL CONVENTION, reprinted in 21 SOUTH DAKOTA HISTORICAL COLLECTIONS, at 440-41 (1942).
(310.) Constitution Complete, PIONEER PRESS, Sept. 19, 1883, at 1.
(311.) Devising a Constitution, supra note 296, at 4.
(312.) Devising Organic Law, supra note 302, at 2.
(313.) Devising a Constitution, supra note 296, at 4.
(314.) The Constitutional Convention, PIONEER PRESS, Sept. 14, 1883, at 5.
(315.) Continuation of the Proceedings of the Constitutional Convention, DAILY PRESS & DAKOTAIAN, Sept. 15, 1883, at 2.
(318.) Devising a Constitution, supra note 296, at 4.
(319.) Id.; Constitution Complete, supra note 310, at 1.
(320.) BAKKEN II, supra note 143, at 23-24.
(321.) Continuation of the Proceedings of the Constitutional Convention, supra note 315, at 2.
(322.) JOURNAL OF THE CONSTITUTIONAL CONVENTION, supra note 309, at 402.
(323.) Tenth Days Proceedings of Constitutional Convention, DAILY PRESS & DAKOTAIAN, Sept. 17, 1883, at 1; JOURNAL OF THE CONSTITUTIONAL CONVENTION, supra note 309, at 402.
(324.) JOURNAL OF THE CONSTITUTIONAL CONVENTION, supra note 309, at 339.
(325.) Tenth Days Proceedings of Constitutional Convention, supra note 323, at 1.
(327.) Id. The convention also adopted a Mellette amendment to allow a trial by judge in criminal cases if both parties agreed. Id.
(328.) Dakota Deliberations, supra note 295, at 3.
(330.) Dakota Statehood, PIONEER PRESS, Sept. 5, 1883, at 4.
(331.) Getting Ready for Important Business, DAILY PRESS & DAKOTAIAN, Sept. 8, 1883, at 2.
(333.) South Dakota: The Constitutional Convention, supra note 304, at 2.
(334.) Devising Organic Law, supra note 302, at 2.
(335.) Concocting a Constitution, PIONEER PRESS, Sept. 15, 1883, at 3.
(337.) Discussion on the Prohibition Subject, DAILY PRESS & DAKOTAIAN, Sept. 18, 1883, at 2.
(343.) Interesting Resume of the Work of the Constitution Makers, DAILY PRESS & DAKOTAIAN, Sept.
(345.) Concocting a Constitution, supra note 335, at 3.
(346.) Discussion on the Prohibition Subject, supra note 337, at 2.
(347.) The Dakota Law-Makers, PIONEER PRESS, Sept. 15, 1883, at 3.
(349.) Constitutional Creation, PIONEER PRESS, Sept. 16, 1883, at 3. See generally, Interesting Resume of the Work of the Constitution Makers, supra note 343, at 1.
(350.) Interesting Resume of the Work of the Constitution Makers, supra note 307, at 1.
(353.) A Lively Discussion Over the Election of Officers Clause, DAILY PRESS & DAKOTAIAN, Sept. 15, 1883, at 2; Concluding Labors of the Constitutional Convention, DAILY PRESS & DAKOTAIAN, Sept. 21, 1883, at 4.
(354.) The Dakota Law-Makers, supra note 347, at 3; Progress of the Constitutional Convention Work, DAILY PRESS & DAKOTAIAN, Sept. 18, 1883, at 2.
(355.) The Dakota Law-Makers, supra note 347, at 3.
(356.) Constitution Complete, supra note 310, at 1-2.
(357.) James Ely notes that a “number of states in the nineteenth century levied taxes based on the gross receipts of rail companies” and that these taxes were “repeatedly sustained” by the courts. ELY, supra note 234, at 208 (citing In re State Tax on Ry. Gross Receipts, 82 U.S. 284 (1872)). See McHenry v. Alford, 168 U.S. 651, 662 (1898) (discussing Dakota Territory’s gross earnings tax on railroads).
(358.) HICKS III, supra note 143, at 129. I DAKOTA CONSTITUTIONAL CONVENTION, supra note 114, at 545-46. In an 1882 decision, the Supreme Court of Dakota Territory held that the taxing authorities must recognize a tax exemption provided in a railroad land grant in Winona & St. Paul Railroad Co. v. County of Deuel, 12 N.W. 561, 562 (Dakota 1882). See N. Pac. R.R. Co. v. Rockne, 115 U.S. 600 (1885) (holding that railroads did not have to pay taxes on land grant property); Bernard Floyd Hyatt, A Legal Legacy for Statehood: The Development of the Territorial Judicial System in Dakota Territory, 1861-1889, 502 (Ph.D. dissertation, Texas Tech University, 1987). In 1886, the Northern Pacific’s gross earnings were calculated to be $2.7 million, $400,000 of which came from Dakota Territory. The Supreme Court of the territory held that the gross earnings tax could only apply to the $400,000 of “local business” conducted by Northern Pacific. Any tax on non-territorial earnings constituted an “intermeddling with, and an effort to tax, the earnings or proceeds arising from interstate commerce, and the attempted usurpation of a power which, under the constitution, is to be solely and exclusively exercised by congress.” N. Pac. R.R. Co. v. Raymond, 40 N.W. 538, 542 (Dakota 1888).
(359.) The Sioux Falls Railroad Constitution, DAKOTA HERALD, Oct. 6, 1883.
(360.) To the People: An Address from the State Executive Committee Touching upon Various Constitutional Points now under Discussion: Ample Evidence that Dakota’s Constitution is the Best Ever Framed, DAILY PRESS & DAKOTAIAN, Oct. 25, 1883.
(362.) The South Dakota Constitution, PIONEER PRESS, Sept. 20, 1883, at 4.
(364.) Concluding Labors of Constitutional Convention, DAILY PRESS & DAKOTAIAN, Sept. 21, 1883, at 4.
(365.) Dakota’s Constitution, PIONEER PRESS, Sept. 20, 1883, at 2.
(366.) Constitution Complete, supra note 310, at 1.
(367.) Dakota’s Constitution, supra note 365, at 2.
(368.) Constitution Complete, supra note 310, at 1. In 1885, the convention also adopted a resolution providing for the printing of 100,000 copies of the Constitution, 10,000 in German and 10,000 in Norwegian. Continuation of the Work at Sioux Falls-The End of the Convention Approaches, DAILY PRESS & DAKOTAIAN, Sept. 25, 1885, at 1.
(369.) Constitution Complete, supra note 310, at 1.
(371.) Dakota’s Constitution, DAILY PRESS & DAKOTAIAN, Nov. 15, 1883.
(372.) I DAKOTA CONSTITUTIONAL CONVENTION , supra note 114, at 44.
(373.) Dakota’s Constitution, supra note 371. Iowa: 1845, constitution lost 7,235–7,656; Iowa: 1846, constitution passed 9,492–9,036; Nebraska: 1866, constitution passed 3,938–3,838; Wisconsin: 1846, constitution rejected; Wisconsin: 1848, constitution passed 16,442–6,149; Missouri: 1865, constitution passed 43,670–41,808.
(374.) See generally, DAILY PRESS & DAKOTAIAN, Sept. 21, 1883.
(375.) I DAKOTA CONSTITUTIONAL CONVENTION, supra note 114, at 45.
(376.) DOLLARD, supra note 81, at 274; NORTH DAKOTA, SOUTH DAKOTA, supra note 49, at 30.
(377.) The Constitution, DAILY PRESS & DAKOTAIAN, Sept. 12, 1885, at 1.
(378.) KINGSBURY, supra note 30, at 1737; see The Work at Sioux Falls, PIONEER PRESS, Sept. 12, 1885, at 3.
(379.) KINGSBURY, supra note 30, at 1737; see The Work at Sioux Falls, supra note 378, at 3.
(380.) The Constitutional Convention, BISMARCK TRIBUNE, Sept. 10, 1885, at 1.
(381.) LOTZE, supra note 262, at 474. Lotze notes that “[t]he sources of the constitution, that can be discovered, are very incomplete, because of the fact that most of the work was done in committees which left no record of their proceedings.” Id.
(382.) An Address to the People of South Dakota, DAILY PRESS & DAKOTAIAN, Sept. 30, 1885, at 1.
(383.) The Work at Sioux Falls, PIONEER PRESS, Sept. 14, 1885, at 9.
(384.) The Constitution, DAILY PRESS & DAKOTAIAN, Sept. 14, 1885, at 4.
(385.) Dakota’s Organic Law, supra note 192, at 9.
(386.) Harmony at Sioux Falls, supra note 191, at 3.
(387.) Id. at 3. The corporations committee emphasized that it did “not seek to be original at all” and that it “studied the best constitutions and selected from them the Constitution on Corporations” and highlighted the Pennsylvania constitution in particular. I DAKOTA CONSTITUTIONAL CONVENTION, supra note 114, at 439-40.
(388.) Larry Remele, “God Helps Those Who Help Themselves”: The Farmers Alliance and Dakota Statehood, MONTANA: THE MAGAZINE OF WESTERN HISTORY 30-31 (Autumn 1987).
(389.) Dakota’s Organic Law, supra note 192, at 9. In the fall of 1885, the prohibition measure was adopted by voters by a vote of 15,570-15,337. I DAKOTA CONSTITUTIONAL CONVENTION, supra note 114, at 47.
(390.) I DAKOTA CONSTITUTIONAL CONVENTION, supra note 114, at 340.
(391.) KINGSBURY, supra note 30, at 1739; I DAKOTA CONSTITUTIONAL CONVENTION, supra note 114, at 341-42.
(392.) KINGSBURY, supra note 30, at 1739.
(394.) Id. at 1742; I DAKOTA CONSTITUTIONAL CONVENTION, supra note 114, at 364.
(395.) Hicks III, supra note 143, at 150.
(396.) DOLLARD, supra note 81, at 279-80. The delegates argued that a larger legislature would be less susceptible to corruption. I DAKOTA CONSTITUTIONAL CONVENTION, supra note 114, at 179.
(397.) KINGSBURY, supra note 30, at 1744.
(398.) A Constitution Made, PIONEER PRESS, Sept. 26, 1885, at 5.
(404.) Affidavit, Arthur C. Phillips (Dec. 9, 1929), at FF 29.7.2 (available at A.C. Phillips Collection, Siouxland Heritage Museum).
(405.) HICKS III, supra note 143, at 12.
(406.) I DAKOTA CONSTITUTIONAL CONVENTION, supra note 114, at 47; see generally Robert Vogel, Sources of the 1889 North Dakota Constitution, 65 N.D. REV. LAW 331 (1989). Vogel, a former justice of the North Dakota Supreme Court, concluded that the influence of the Northern Pacific Railroad on the North Dakota constitution had been underestimated. Id. at 342. See also Herbert L. Meschke & Lawrence D. Spears, Digging for Roots: The North Dakota Constitution and the Thayer Correspondence, 65 N.D. L. REV. 343 (1989).
(407.) Untitled Article, ABERDEEN DAILY NEWS, Nov. 7, 1888.
(408.) ROBERT EDWIN ALBRIGHT, POLITICS AND PUBLIC OPINION IN THE WESTERN STATEHOOD MOVEMENT IN THE 1880’S, reprinted from 3 PAC. HIST. REV. 302 (Sept. 1934).
(409.) I DAKOTA CONSTITUTIONAL CONVENTION, supra note 114, at 47-48.
(410.) HICKS III, supra note 143, at 23.
(411.) To Overstep Limitations, DAILY ARGUS-LEADER, July 11, 1889, at 1; South Dakota, PIONEER PRESS, July 20, 1889; South Dakota Convention, BISMARCK TRIBUNE, July 11, 1889; The Two Dakotas, PIONEER PRESS, July 4, 1889.
(412.) Four New Constitutions, PIONEER PRESS, July 6, 1889, at 4.
(413.) The separately submitted prohibition measure also passed 40,234–34,510. I DAKOTA CONSTITUTIONAL CONVENTION, supra note 114, at 48.
(414.) DOLLARD, supra note 81, at 646.
(415.) Sioux Falls, BISMARCK TRIBUNE, Sept. 15, 1885.
(416.) Harmony at Sioux Falls, supra note 191, at 3.
(417.) Remele, supra note 388, at 30.
(418.) Dakota’s Organic Law, supra note 192, at 9.
(419.) ROBINSON, supra note 245, at 204. The Alliance began to organize as early as 1881. In 1884, delegates met to form the territorial Alliance. The influence of the Alliance is noted in NORTH DAKOTA, SOUTH DAKOTA, supra note 49, at 50.
(420.) HICKS III, supra note 143, at 32; Kenneth E. Hendrickson, Some Political Aspects of the Populist Movement in South Dakota, 34 N.D. HIST. 80 (Winter 1967).
(421.) South Dakota Too, PIONEER PRESS, July 3, 1889, at 1.
(422.) The Constitution Makers, DAILY PRESS & DAKOTAIAN, Oct. 4, 1883 (citing CHICAGO INTEROCEAN CORRESPONDENCE, Sept. 20, 1883); LOTZE, supra note 262, at 473 n.33.
(423.) An Address to the People of South Dakota, supra note 382, at 1.
(424.) Editorial Correspondence, PIONEER PRESS, June 29, 1889, at 9.
(425.) GUIDE TO THE MICROFILM EDITION OF THE DAKOTA TERRITORIAL RECORDS 19 (Daniel Rylance, ed., 1969).
(426.) See generally LAMAR, supra note 67.
(427.) Id. at 230-31, 266-67. See generally Jon Lauck, The Old Roots of the New History: Howard Lamar and Dakota Territory, 39 WESTERN HIST. Q. (forthcoming Fall 2008).
(428.) Lamar’s analysis accords with Charles Beard’s famous critique of the federal Constitution in An Economic Interpretation of the Constitution (1913), a work of progressive history which was popular when Lamar wrote Dakota Territory. “Within the intellectual community [during the 1930s], Beard was the American historian,” according to Peter Novick. “A study of college textbooks in 1936 showed that his Economic Interpretation of the Constitution had become virtual orthodoxy.” PETER NOVICK, THAT NOBLE DREAM: THE “OBJECTIVITY QUESTION” AND THE AMERICAN HISTORICAL PROFESSION 240 (1988). Richard Hofstadter noted that Beard’s book was “at the zenith of its appeal” during the 1930s, when the “economic interpretation of history [was] congenial to the day of popular-front Marxism and sociological literary criticism.” Richard Hofstadter, Beard and the Constitution: The History of an Idea, 2 AM. Q. 209 (Autumn 1950). Forrest McDonald has noted that Beard’s book “became a new prevailing orthodoxy” in the 1930s and 1940s and by the time of his death in 1948 had become a “sacred cow.” Forrest McDonald, A New Introduction to CHARLES A. BEARD, AN ECONOMIC INTERPRETATION OF THE CONSTITUTION OF THE UNITED STATES xxii-xxiii (Free Press 1986) (1913). See also WARREN I. SUSMAN, CULTURE AS HISTORY: THE TRANSFORMATION OF AMERICAN SOCIETY IN THE TWENTIETH CENTURY 21 (1984).
(429.) Gordon Morris Bakken notes that it was common for charismatic leaders to play a large role in Western constitution writing. BAKKEN II, supra note 143, at 13. 430. JEAN H. BAKER, AFFAIRS OF PARTY: THE POLITICAL CULTURE OF NORTHERN DEMOCRATS IN THE MID-NINETEENTH CENTURY 7 (Fordham University Press 1998) (1983).
(431.) PAUL KLEPPNER, THE CROSS OF CULTURE: A SOCIAL ANALYSIS OF MIDWESTERN POLITICS, 1850-1900, 37 n.2 (1970).
(432.) Boyd C. Shafer, The American Heritage of Hope, 1865-1940, 37 MISS. VALLEY HIST. REV. 433 (Dec. 1950).
Jon Lauck ([dagger])
([dagger]) J.D., University of Minnesota, 2000; Ph.D., University of Iowa, 1997; B.A., South Dakota State University, 1993. During the Fall of 2007, Lauck was the Archibald Hanna Research Fellow in American History at Yale University, where he completed much of the research for this article. Lauck is the author of American Agriculture and the Problem of Monopoly (2000) and Daschle v. Thune: Anatomy of a High Plains Senate Race (2007). Lauck is currently Senior Advisor to U.S. Senator John Thune.
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