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Legislature grabbing for power – again

By Staff | Jan 14, 2011

“The legislative department is everywhere extending the sphere of its activity and drawing all power into its impetuous vortex.”

This often quoted observation from Federalist Paper No. 48 (James Madison) is often quoted because legislatures are often trying to grab powers beyond their constitutional authority. The North Dakota legislature has been in session for only a couple of weeks and it is already trying to draw power “into its impetuous vortex.”

One of the functions of state constitutions is to keep the branches of government confined to their prescribed powers and duties. The North Dakota constitution provides for four branches of government the legislative, the executive, the judiciary and the Board of Higher Education. A 4-branch government may sound odd but that’s what we have.

The higher education branch was created in the 1930s after the executive branch, primarily Governor William Langer, abused its power by meddling in the staffing of North Dakota State University. At the time, the institutions of higher learning were under a statutory board over which the governor had control. A constitutional amendment was adopted to protect higher education from the other branches of government.

In almost every session, the state Legislature entertains proposals that are clear violations of the constitutional provisions relating to the Board of Higher Education. In the last session, it was carrying guns on campuses and regulation of athletic competition between NDSU and UND.

The present session is only a couple of weeks old and bills already have been introduced to take charge of the University of North Dakota “Fighting Sioux” logo controversy. Under the state constitution, this issue is none of the Legislature’s business.

Those proposing to take charge of the matter allege that they are doing this in response to public opinion. Well, constitutions cannot be altered for public opinion. If public opinion could override the constitution, the constitution would cease to be a constitution. They also concede that the measures may be unconstitutional but they will let others prove it.

Even if the Legislature passed this legislation, that would not be the end of the problem because there are external players involved. Some of the other Division I schools have indicated that sometime down the road they will refuse to play teams with allegedly defamatory logos. The National Collegiate Athletic Association (NCAA) will continue to issue mandates, regardless of our state laws.

Because of the unpredictable responses of the other Division One teams and the NCAA, North Dakota needs to retain flexibility in resolving the issue. The state could get into some embarrassing situations if all options are preempted by state legislation.

At this late date, a favorable vote by Standing Rock residents would be of questionable value. There is no doubt that the legitimacy of the vote would be attacked as unrepresentative or illegal by opponents of the logo. A favorable vote may no longer convince other teams or the NCAA that the logo should remain in use.

At any rate, this is not a matter for the Legislature to draw into its “impetuous vortex”. The cavalier attitude of legislators toward the importance of the state constitution suggests that a course on the constitution ought to be required preparation for serving in the Legislature.

Omdahl is a UND professor emeritus in political science and a former lieutenant governor of North Dakota.

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