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A reason to draft constitutions carefully?

On the lighter side of the news: according to this report, owing to a slight omission in the drafting of North Dakota’s constitution (namely, the omission of a requirement that state officials take an oath of office), it is questionable whether North Dakota is legally a state.

The report mentions the existence of a conflict between the federal and state constitutions but isn’t more specific than that. If there is such a problem, it would presumably stem from the requirement in Article VI that “all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution”.

For a more skeptical take, see this report instead.

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Published on July 15, 2011
Author:          Filed under: David Law, hp, North Dakota, state constitutions

5 Responses

  1. Mark Tushnet

    This is cute, but I wonder whether it’s legally accurate. The oath requirement is imposed by the U.S. Constitution, so, I would think, the governor, etc., are required by the U.S. Constitution to take the oath, whether or not the state constitution (or state law) provides for one. The only hitch, not mentioned in the articles, is that the admission of North Dakota as a state might be been conditioned — by Congress — on the inclusion of an oath requirement in the state constitution.

  2. Right. The video clip that goes with the article mentions a conflict between the federal and state constitutions, which sent me scurrying to the text of the U.S. Constitution to try to figure out what they could possibly be talking about. That language in Article VI is the only thing I see that might fit the bill. But that bit in the story about the existence of constitutional conflict could well be a layman’s/journalistic error. A congressionally imposed requirement makes more sense.

  3. Even if Congress had conditioned admission on the inclusion of an oath requirement, once the state’s been admitted, conditions aren’t enforceable: see Coyle v. Smith.

  4. I actually just read a more in-depth article about this issue last night in BBC. The meme it pushes is that there is a constitutional deficit, if a somewhat trivial one. BBC also interviewed some law professors who argued the oath requirement is separate and distinct from Congress’ power to admit a state (which it validly did under an Enabling Act in 1889). You can read more here if you’re interested:

  5. Much better article. I’ll link it in the post. Thanks Dominic.

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