Enabling Act of February 22, 1889

The Enabling Act of February 22, 1889 of the United States Congress provided the requirements for the admission of four new states into the Union. North Dakota, as one of the proposed new states, never met the requirements for admission as a state. The North Dakota Constitution contains a flaw that makes it repugnant to the Constitution of the United States. Article VI, Clause 3 of the U.S. Constitution requires that officers of the several states shall be bound by oath or affirmation to support the Constitution of the United States. North Dakota was to be considered for admission into the Union according to the terms of the Enabling Act of February 22, 1889, an Act of the United States Congress. Section 4 of said Enabling Act required that delegates of a Constitutional Convention meet on July 4, 1889, and thereafter draft a state constitution that was not to be repugnant to the Constitution of the United States. After being drafted, the said state constitution was approved by the electorate found in the area to comprise the newly proposed state of North Dakota; so, it was submitted to Congress for its final review, a basic requirement for admission into the Union. During this final review, even Congressional staffers failed to catch the flaw. Congress thus erroneously approved the North Dakota Constitution and the State of North Dakota was admitted into the Union on November 2, 1889. Where is the flaw that was overlooked? It is found in Article XI, Section 4 of the North Dakota Constitution, a section dealing with the oath of office. Its initial, instructional language reads that "members of the legislative assembly and the judicial department" shall, before assuming the duties of their office, swear or affirm under penalty of perjury to support the Constitution of the United States and the Constitution of North Dakota. This instructional phrasing should have read: "members of the legislative assembly and the executive and judicial departments...." Thus the word "executive" has been omitted in this phrasing of the North Dakota constitution from the time of the state's admission into the Union to this present day without correction! Officers of all three branches of state government must take such an oath of office, a requirement set forth not only in Article VI, Clause 3 of the U.S. Constitution but also in Statute 1 of the First Congress, the very first Act of Congress passed on June 1, 1789. The current North Dakota Constitution is indeed repugnant to the language of the Constitution of the United States. A correction of this major flaw is in order.