Summer Reading: Kentucky Constitutional History—A Small Library
Despite our rumored history as a federalist state where power is shared between the center and the regions, state constitutional history has gotten short shift by the writers (and more likely) the publishers of history. Books on the history of the federal constitution and its framers can be purchased by the pallet-load, while most any state's library of books of its constitutional history would fit in one of those eco-friendly cloth shopping bags. Ironically, even the current defenders of the flame of pure federalism who decry incursions on state prerogatives fill their catalogues with books on the 1787 federal constitutional convention in Philadelphia, not the one that meat three years later to revise the Pennsylvania constitution or (to give another example) the one that met in 1792 in Danville to draft Kentucky’s first constitution.This situation obtains in every state, but is particularly acute regarding our commonwealth. Nonetheless there are a few very readable books that every Kentucky lawyer with an interest in the Kentucky constitution should read.
No list on the state constitution or indeed the history of Kentucky, can be created without including a title or two written by UK history professor Bob Ireland, the unquestioned dean of Kentucky legal history. I could (and well may one day) write an entire piece exclusively on the important articles he has written on the history of state criminal law or its institutions of government. In the 1999, the wisdom accumulated from writing three books and a dozen articles, was employed in writing an encyclopedia of the Kentucky constitution. Its organization as a guide perhaps makes it a little harder reading than his other books, but there are so many interesting points, I’d encourage a try.
However, when the delegates to the tenth convention were in grasp of the prize, they realized that they needed a constitution. Harrison effectively recounts how the 1792 constitution was shaped under the hands of George Nicholas to mix the democratic impulses of the woodsmen pushing into the new state’s interior with the concerns for order expressed by the owners of estates in the more settled Bluegrass. The result was a document that included the revolutionary idea of universal male suffrage (without the property requirements in other state charters) but allowed direct election only of the lower house of the bicameral legislature. The founders further evened the deck with a timeless bill of rights that still is part of our current state constitution.
Coward’s monograph starts with a discussion of the 1792 convention that complements Harrison’s chapters, before relating the social and economic changes wrought by Kentucky’s growth in the 1790s—changes that led to the 1799 convention that revised the document. The issue of slavery gets a bit of attention as this period was the state’s last flirtation with abolishing the institution before the Civil War took it out of Kentucky’s hands. Ultimately the 1799 avoided more than slavery, failing not only to stem the growing oligarchic control of county government, but fostered it by giving the county court the major role in selecting its own members and the sheriff. Nonetheless, by instituting the popular election of the governor and the upper house of the legislature, the state came closer to true democracy
Ireland’s book on the powerful county courts of the antebellum era has perhaps the best discussion of the background to and activities of the 1849 constitutional convention—simply because issues with the unelected local governments so highlighted the need for more democracy in the state constitution (and because there is no monograph of the convention). Under the 1799 constitution, the county court was the center of all power in the localities. From masterful research in the minute order books and the debates of the 1849-50 constitutional convention, Ireland bring alive these long-extinguished political struggles still-embedded in the sinews of our constitution.
Two books discussed in a prior post bear repeat mention. First, Hambleton Tapp and James C. Klotter, Kentucky: Decades of Discord, 1865-1900 (Frankfort: Kentucky Historical Society, 1977) offers the best treatment of the historical background and activities of the 1890 constitutional convention. Second, (more self-promotion) Kurt X. Metzmeier, Michael Whiteman and Jason Nemes, United At Last: The Judicial Article and the Struggle to Reform Kentucky's Courts (Frankfort, Ky.: Court of Justice, 2006) attempts to explain the forces behind the successful 1975 revision of the constitutions judicial article.
The library of good historical treatments of Kentucky’s constitutional history is a small one, dwarfed by many shelves that can be filled with books on the past lore of the University of Kentucky basketball program or on the history of the Kentucky Derby. There is no monographic treatment of the activities off the 1849-50 or 1890 constitutional conventions—despite reams of official documents and full-runs of leading newspapers on microfiche. There is no biography of George Nicholas, or many of the leading figures in Kentucky legal history. So we honor what we have, while hoping for more.