Guest Essayists: James C. Clinger and Michael W. Hail

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Constitutions can be thought of as institutional arrangements that shape the way that individual preferences will be expressed and collective decisions made within a government. The provisions of a constitution also reflect preferences, but the provisions of a constitution may have long-run impacts upon the way that individual preferences are translated into legally binding collective decisions well into the future. Some of these decisions will have implications that are unforeseen and unintended, even if the specific provisions of a constitution were intended by its framers to have different results. In particular, the constitutional framework of a state or nation shapes the path dependent development of that political community. Once the highest law of a polity has been designed, political, legal, and economic decisions are made with that framework in mind. Decisions involving sunk costs are made premised on a particular legal order. Once those decisions are made, it may be difficult to reverse them. The political and economic trajectory of a polity may be set in place, and the momentum built up over history may be hard to swerve in a different direction. Such can be seen in Kentucky’s experience with its state constitutions.

Constitutions can also be understood as covenants.[1] The role of political theory is particularly useful in understanding constitutions and the jurisprudence interpreting them. While classical understandings of Plato and Aristotle were central to the American Founders’ constitutionalism, they were even more influenced by modern political theory from Thomas Hobbes and John Locke. “The treatment of covenant …in [Thomas Hobbes] Leviathan is thoroughly Puritan, and in general should be regarded as a secularized version of the English Puritans’ theory of a commonwealth.”[2] Ultimately, the way the founders understand a constitution is the most important foundation for constitutional interpretation and this is often referred to as original intent. The meaning of provisions in any constitution will require time for judicial processes and political governance to fully articulate, and under the English common law legal system, the original understanding of those who found constitutions is central to the subsequent constitutional interpretation.

The Commonwealth of Kentucky has crafted four different constitutions.[3] Each can be seen to reflect the ideas and interests of its proponents. Each was a response to particular events and circumstances.   Each has been interpreted over time, not only by the courts but by agencies authorized to implement state law.

The first constitution was drafted in 1792 as a condition of Kentucky’s admission to the United States.[4] There were “four successive enabling acts passed by the legislatures of Virginia, that Kentucky was allowed to enter the Federal Union as an Independent State, on an equality with those which had established themselves as a nation.”[5] Kentucky had similar influences as the other states and scholars have generally concluded the resulting constitutions follow the model of the federal constitution of 1787.[6] The federal constitution was an example of American exceptionalism. “The Constitutional Convention was a signal event in the history of federalism for it was there that the American style of federalism originated.”[7] The Compact With Virginia, as the fourth enabling act has come to be known as, provided the constitutional and legal road map to statehood for Kentucky. Nine pre-constitutional conventions were held as part of the process leading to the Compact With Virginia. The tenth was the actual founding constitutional convention.

Although many Kentuckians were from Virginia, and some of the easternmost counties in Kentucky were formerly counties within Virginia, much of the first constitutional structure was drawn from the 1790 state constitution of Pennsylvania. George Nicholas, often considered the primary architect of the document at the state constitutional convention, deliberately drew from the Pennsylvania charter, which was considered among the more radical of its day. The politics of admission to the union was influential in looking to Pennsylvania also, as Kentucky was competing with Vermont in the Federalist-controlled Congress for admission as the next state after the original thirteen. The political balance of power in Congress was a cloud over the admission process that affected these considerations. Kentucky endured numerous pre-constitutional conventions and the Compact With Virginia ultimately governed Kentucky’s transition to statehood. Kentucky retained the constitutional offices, state and local administrative structures, local government forms of Virginia despite some influence from Pennsylvania. The Bill of Rights that the constitution included at the end of the document reappeared in virtually unchanged form in each of the following three Kentucky constitutions, although those provisions have been moved near the beginning of the document. Isaac Shelby was a central leader in the Kentucky constitutional conventions and the admission to statehood process.  Shelby was elected as the first Governor of Kentucky and remains to this day the only Governor elected unanimously. Isaac Shelby would return to election as Kentucky Governor a second time as Kentucky and the nation prepared for the War of 1812.

The 1792 constitution provided for a fairly broad elective franchise, a secret ballot, and provision for a referenda for constitutional conventions but provided for  no amendment process. The legislature was granted the power to regulate the slave trade. The bicameral legislature was made up of eleven members in the senate and no fewer than forty and no more than one hundred members of a house of representatives. An electoral college would select both the governor and the members of the senate.

The second constitution was drafted in large part in response to a controversy over gubernatorial succession. The document responded to demands for more restriction on government powers, including limits on the authority of the legislature to regulate slavery. The electoral college was eliminated, providing for direct election of all constitutional offices.   The secret ballot was eliminated and viva voce voting put in its place. The constitution specified that the senate would have at least twenty-four members, with no fewer than fifty-eight in the house, nor more than one hundred. 

The third constitutional convention met in 1849 and the resulting document was ratified by public vote in 1850. The issue of slavery hung heavily over the constitutional deliberations. The influence of Jacksonian democracy could be seen in the document, with more offices up for election, with a long ballot being the result. The document specified that the senate would have thirty-eight members with one hundred in the house. For the first time, public education was covered at length, with the document establishing a Common School Fund to help finance schools. Slavery and education were the only policy issues to receive extensive attention.

The fourth and current constitution was ratified after a convention in 1891. The document was drafted in a time of progressive reform in much of the country. In Kentucky, there was a great deal of resentment felt toward corporations and specifically, railroads. It was widely believed that the legislature had been badly corrupted by corporate interests. As a result, the new constitution put many restrictions on local and special legislation that was believed to favor special interests. The preamble was changed to identify Kentucky as a “commonwealth” and to assert that all power is “inherent in the people.” The bill of rights was moved to the beginning of the document. The secret ballot which been absent in the last two constitutions was returned. For the first time, the constitution provided for an amendment process so the constitution could be changed in a piecemeal basis. The document was filled with policy-specific details including special provisions regarding corporations, local government, debt, and taxes. The constitution limited the governor and other constitutional officers to one four-year term, a restriction that was not removed until the 1990s. The General Assembly was to meet only every other year, although the legislature was authorized to meet in annual sessions by constitutional amendment in 2001. Judges were to be elected in non-partisan races.

Kentucky’s fourth and, thus far, last constitution placed substantial curbs on state and local governments much like other states, particularly southern state constitutions, have done. However, while Kentucky has long been a socially conservative state, the constitution–and its interpretation–have not pushed the Commonwealth as far to the right as some other southern states have gone, particularly on fiscal and regulatory matters. What is notable is that the basic political trajectory of the Commonwealth’s policies and politics can be understood in light of  the Kentucky courts’ decisions which have added to and sometimes subtracted from the actual constitutional text.

Section 14 of the Constitution guaranteed that “All courts shall be open, and every person for an injury done him in his lands, goods, person or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial or delay.” The court structure was completely revamped in the 1970s, but the “open courts” provisions have remained untouched. This has prevented efforts to institute tort reform or other limitations upon liability that are common in other states. Legislation that would have had medical malpractice claims pass through a medical review process before heading to court were struck down as unconstitutional.[8]

The constitution explicitly listed permissible tax sources for both state and local government. An income tax for local governments was not authorized, but license taxes were. In the early twentieth century, the city of Louisville imposed occupational license taxes in which the liability of each taxpayer was defined as a percentage of their earned income. This levy was quickly challenged as an unconstitutional tax. The state’s highest court ruled in the City of Louisville v. Sebree case that the occupational license tax—which was a flat income tax under another name—was a permissible tax under the constitution.[9]

Section 246 of the Constitution also limited the compensation given to state officials, with the highest sum permitted set at $12,000. Though unamended since 1949, the  constitution was construed in 1962 to permit the Commonwealth to pay officers and employees an amount equal in buying power to that of the standard set in 1949.[10] This application of the “rubber dollar doctrine” has probably permitted the state to recruit and retain employees who would not be willing to work for the constitutionally specified salary. Nevertheless, it is not clear that this practice is what the framers intended.

One of the most important constitutional rulings which has expanded the scope and size of government in the Commonwealth dealt with public education. Kentucky, like most states, has long had a substantial share of the financing of public education provided by local tax sources, primarily the property tax. Since tax bases are limited, and tax levies legally limited by the state, public schools had difficulty raising money and some school districts were much more limited in their revenues than others. General language in Section 183 of the Constitution stipulating that “The General Assembly shall, by appropriate legislation, provide for an efficient system of common schools throughout the State” was used by the state supreme court to invalidate the existing financing system.[11]    Since that decision, Kentucky has risen from one of the lowest spending states on public education to one that is in the middle ranks of the states.[12]

Kentucky has periodically had discussion of constitutional reform but despite commissions and studies, Kentucky continues to operate under the fourth Constitution of 1891.[13] Amending the Kentucky Constitution requires passage in both the House and Senate by three-fifths majority in each chamber and amendments can originate in either chamber. An amendment approved by the session of the General Assembly is placed on the general election ballot for consideration by the Kentucky electorate and a simple majority is required for ratification of an amendment. There can be no more than four amendments considered by the voters in a general election. The Governor has no authority in the amendment process, other than the duty to make a proclamation regarding the amended constitution if approved by the voters in the general election.

James C. Clinger is a professor in the Department of  Political Science and Sociology at Murray State University.  He is the co-author of Institutional Constraint and Policy Choice: An Exploration of Local Governance and co-editor of Kentucky Government, Politics, and Policy. Dr. Clinger is the chair of the Murray-Calloway County Transit Authority Board, a past president of the Kentucky Political Science Association, and a former firefighter for the Falmouth Volunteer Fire Department.

Michael W. Hail is Professor of Government and Director of the Statesmanship at Morehead State University in Kentucky, and serves as Government Program Coordinator and Director of the Intelligence Center for Academic Excellence (ICCAE). He is co-editor of Kentucky Government, Politics, and Policy. Dr. Hail focuses his research on federalism and intergovernmental management. His research interests include economic development policy, state and local government, American political thought, and Western political philosophy. Dr. Hail teaches courses on Public Administration, Federalism and Constitutional Law, Public Management, State and Local Government, Economic Development, Western Political Philosophy, Intelligence Studies, and American Political Thought. 

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[1] Elazar, Daniel.  Covenant and Constitutionalism: The Covenant Tradition in Politics.  New York: Routledge, 2018.

[2] Schneider, Herbert W., ed.  Thomas Hobbes Leviathan – Parts One and Two. New York: Macmillan Publishing Company, 1958, p.x.

[3] Clinger, James C., and Michael W. Hail. Kentucky Government, Politics, and Public Policy. Lexington, KY: The University Press of Kentucky, 2013.

[4] Ireland, Robert M.  “The Kentucky Constitution.”  Clinger, James C., and Michael W. Hail.  Kentucky Government, Politics, and Public Policy. Lexington, KY: The University Press of Kentucky, 2013.

[5] Thorpe, Francis Newton. The Federal and State Constitutions: Colonial Charters, and Other Organic Laws of the States, Territories, and Colonies Now or Heretofore Forming the United States of America. Washington Government Printing Office, 1909.

[6] Taulbee, Ashley.  The Kentucky Constitutional Conventions and the Federalism of the Founding Fathers.  Master Thesis.  Morehead State University, 2017.  Taulbee states, “There are several aspects of influence and interconnectedness between national constitutionalism and state constitutionalism reflected in the Kentucky case. The political theory influences, as well as the structure of the institutions in the U.S. Constitution of 1787, and certainly the political thought expressed at the convention in Philadelphia, all are major influences on how state constitutional conventions are modeled. Core constitutional provisions such as separation of powers, checks and balances, and bicameral legislative bodies are among the constitutional features of the U.S. constitution that are consistently incorporated in state constitutions. The politics in Congress as well as in the territory itself play a significant role in framing the terms under which statehood and state constitutional conventions can operate.”(pp.3-4)

[7] Smith, Troy.  “Constitutional Convention of 1787.”  Federalism In America.  Westport, CT: Greenwood Press, 2006, p.116.

[8] Commonwealth v. Claycomb, 2017-SC-000614.

[9] City of Louisville v. Sebree, 214 S.W.2d 248

[10]Matthews v. Allen,  360 S.W.2d 135 (1962

[11] Rose v. Council for Better Education, 790 S.W.2d 186

[12] Digest of Education Statistics,  Department of Education, National Center for Educations Statistics.  https://nces.ed.gov/programs/digest/2017menu_tables.asp

[13] Clinger, James C., and Michael W. Hail. Kentucky Government, Politics, and Public Policy. Lexington, KY: The University Press of Kentucky, 2013.

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