From the July 2002 Idaho Observer:

FIJA pushes for passage of “Amendment A” in SD

RAPID CITY, SD -- Chosen for its low population and the small number of petition signatures necessary to get an initiative on the ballot, Fully Informed Jury Association founder Larry Dodge was recently in Rapid City, SD, working to promote the passage of jury rights “Amendment A.” Amendment A was named because it was the first proposed constitutional initiative to achieve ballot status for the November 5, 2002 general election.

“We call it the 'Common Sense Justice” Amendment,' because during the wild drive to get it on the ballot, petition circulators (including me) constantly heard from those signing, 'This just makes common sense!'” commented Dodge. Dodge led FIJA for 12 years until giving up his post to former Oklahoma Rep. and OK City Bombing investigator Charles Key last fall.

Amendment A provides additional language proposed for the “Rights of Accused” portion of the South Dakota Constitution. Language already in that section guarantees accused persons the right to confront their accusers, to see the evidence against them, to subpoena witnesses, to trial by jury, etc. The Common Sense Justice Amendment would add the “...[right] to argue the merits, validity, and applicability of the law, including the sentencing laws.”

Currently, not a single state constitution acknowledges or provides for this right, essential as it can be for an accused person trying to get a fair trial, as the Sixth Amendment is supposed to guarantee.

Until 1895, judges routinely advised jurors of their right to judge both law and fact, and lawyers would thus argue the law in open court. But in that year, the U.S. Supreme Court decided (in an ugly split decision) that trial judges needn't remind jurors of their power to judge the law and, worse, could sanction lawyers of they tried to give the jury that information or to argue the law to the jury.

Today, if one wants to argue about the law, he must first plead or be found guilty, then make those arguments on appeal.