Bench & Bar July/August 2025

BOOK REVIEW

THOMAS JEFFERSON AND THE KENTUCKY CONSTITUTION BY DENIS FLEMING, JR.

T homas Jefferson’s influence on Kentucky’s Constitution is a touchstone of state law and is cited in important cases going back to the 19 th century. In his new book, Thomas Jefferson and the Kentucky Constitution , Denis Fleming Jr. explores the history behind Jef ferson’s impact on Kentucky’s first two constitutions, adopted in 1792 and 1799 after Ken tucky separated from Virginia and became the 15 th state in the nation. In this well-researched book, Fleming shows that George Nicholas and John Breckin ridge, two Virginia natives who helped establish the new state of Kentucky, relied on Jefferson’s counsel to include in Kentucky’s initial constitutions strict “sep aration of powers” language which remains in the state’s con stitution today, and continues to play a vital role in Kentucky law and government. In the early days of statehood, the notion that government would be divided into three branches – legislative, executive, and judicial – was not novel, as it was established that way in the U.S. Constitution and in other states. What was innovative and still resonates in Kentucky law, was the inclusion of language A BOOK REVIEW BY JOHN SCHAAF

Nicholas is often called the “Father of Kentucky’s Constitu tion”, and a compelling portion of Fleming’s book explains how the author’s research into Nich olas’s papers found references to Jefferson’s writings on separation of powers, specifically in notes of remarks that Nicholas made to Kentucky’s first constitutional convention in support of ‘strict separation’. In the 1780’s, Jefferson wrote Notes on the State of Virginia , setting forth his views on many of the issues of the day, includ ing a review of the strengths and weaknesses of Virginia’s first constitution. In Notes , Jefferson wrote that concentrating state power in any one of the branches “is pre cisely the definition of despotic government.” He praises the Virginia convention that wrote the state’s constitution, including laying “the foundation . . . that the legislative, executive and judiciary departments should be separate and distinct, so that no person should exercise the powers of more than one of them at the same time.” However, Jefferson is critical of the drafters’ omission of specific language requiring each depart ment to stay in its own lane. As he states, “no barrier was pro

those charters. In 1891, the framers of the present-day constitution included a 26-sec tion Bill of Rights, with the separation of powers language placed immediately there after in Sections 27 and 28.

strictly precluding any branch from exercis ing power which belongs to another branch. The separation of powers sections were inte gral to Kentucky’s first three constitutions and were prominently placed in Article I of

vided between these several powers.” This is the important guidance that Nicholas brings to Kentucky’s 1792 constitution, resulting in the inclusion of provisions that Breck inridge protected in the 1799 constitution,

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