CHAPTER I

A SURVEY OF KENTUCKY CONSTITUTIONS

"Many Kentuckians are never aware they live under a constitution. They never see it. They never feel it directly. The constitution may exist as a vague conception of state government in the abstract, but it seems remote to every day life on rural mail routes and pleasant streets in little towns." (Allan M. Trout, 1947.)

Yet Kentucky has had four constitutions, and they differ according to the attitudes of the people toward their government at the time of adoption. Each constitution has been longer than the preceding one and placed more power in the hands of the people through elections. The present constitution is the longest, most detailed and, hence, most restrictive constitution Kentucky has ever had. The four constitutions were adopted in 1792, 1799, 1850 and 1891.

The Early Constitutions

Prior to Kentucky's becoming a state on June 1, 1792, a convention was held in Danville in April 1792 to draft the state's first constitution. Actually, nine conventions had been held in Danville between 1784 and 1790 at which the basic work had been done for a constitution. The tenth convention met for 14 working days and drafted a document which had a number of progressive features, including the following: (1) all elections were to be conducted by ballot, rather than the widely used voice vote; (2) representation in both houses of the legislature was based on population, rather than geography; (3) slavery was recognized, but means were provided whereby the legislature could phase it out through regulation of slaves brought into the state as merchandise; (4) a broad foundation was laid for state government, with authorization for the legislature to provide details; and (5) the need for revision was recognized by the provision for a constitutional convention call in seven years.

The section providing for calling a constitutional convention in seven years was perhaps the most progressive part of the first constitution. The delegates realized the great task of establishing a government and knew there would be problems which they could not foresee. This proved to be true, for there were provisions in the 1792 constitution which the people of Kentucky wanted changed by 1799. These areas included the appointment of judges for life terms, no provision for the election of a lieutenant governor, and the election of the governor and senators by an electoral college, members of which were elected at the same time as state representatives. Dissatisfaction with these provisions soon became evident as the people felt that they had little to say in the selection of governor and senators, and the cry of "rule of the Aristocracy'' was heard.

In 1799 a convention to draft the second constitution of Kentucky was held in Frankfort. After 27 days, July 22 to August 17, a constitution was drafted which provided for the direct election of the governor and senators, established the Court of Appeals as the supreme court of the state, with appellate jurisdiction only, and provided for the election of a lieutenant governor. The governor, however, could continue to appoint judges and was also granted the power to appoint local officials, who had been elected under the first constitution. Thus, the office of governor was substantially strengthened. Interestingly, voting by voice vote replaced voting by ballot, one of the progressive features of the first constitution.

These first two constitutions of Kentucky were not required to be submitted to the people for ratification, and there was no provision for amendments to be made to either of these constitutions.

As early as 1828 there were demands before the General Assembly for another constitutional convention. Kentucky was experiencing growth and changes in population, industrial development and its economy. In 1838 the General Assembly passed an act to take the sense of the people on calling a convention. This effort failed, but the desire for a constitutional convention did not die. Finally, in 1847 and 1848 the call for a convention submitted to the voters passed by more than a two-to-one majority, and the third constitutional convention met in Frankfort from October 1, 1849, to December 21, 1849.

Over the years the voters of Kentucky had become dissatisfied with the appointment of officials by the governor. Consequently, substantial changes in the third constitution involved making elective a number of offices which had been appointive, including judges, county officials, attorney general, treasurer, register, auditor and clerk of the Court of Appeals. Also, the courts were reorganized, a "Common School Fund" was established which was the foundation for Kentucky's support of public education, and the superintendent of public instruction was established as an elective position. Voting by voice vote was retained.

The dueling prohibition appeared for the first time in this third constitution. It seems that denunciation of the practice from the press and the pulpit had been ineffective, and men of distinction were frequently involved in affairs of honor. Thus, this prohibition from holding office became a means of controlling dueling and remains in the Constitution today.

A limitation of $500,000 was also placed on the state's indebtedness. In 1850 this amount was approximately one year's revenue receipts. This same limitation remains in the present constitution, but bears little relationship to current revenue receipts which for 1975-76 were more than a billion dollars.

Slavery was an issue in the drafting of each of these three constitutions. It was in the forefront of all endeavors, political, social, religious and educational. The 45 delegates who drafted the first constitution in 1792 voted 25 to 16 to provide for slavery. Eight of the sixteen anti-slavery votes were ministers. The first convention later voted to prohibit ministers from sitting in the House of Representatives or holding any other public office. Oddly enough, all eight ministers voted for this prohibition. It has been observed that one reason for this prohibition, other than the separation of church and state, may have been the fear that ministers might exert enough influence in office or be elected in such numbers as to prohibit slavery.' The exclusion of ministers holding public office remained in the constitution until the 1891 revision.

Slavery was recognized in the first three constitutions; and in fact, the position of slavery was strengthened with each constitution. It was very much an issue in the election of delegates to the third constitutional convention, as well as in the convention itself. Since the pro-slavery delegates were in the majority, slavery was more firmly entrenched in the third constitution than any previous one.

The Constitution of 1891

The only way to change the third constitution was by convention, proposed by the General Assembly and approved in two successive elections by the voters. After the Civil War the demands for another convention grew because of the slavery provisions in the constitution. On December 7, 1867, Governor Stevenson recommended to the legislature the submission of the convention question to the vote of the people. The call was defeated on December 18, 1873, and again every two years through 1885. The number needed to approve the call had to be a majority of those entitled to vote for representatives, which was then determined by the tax assessor's list. Finally, the legislature, under the authority of the constitution to "provide for ascertaining the number of citizens entitled to vote," called for a registration of voters, who must be male and over 21, to be conducted at the next election. After this registration of voters in the 1887 election, the convention call had the required majority in 1888. It passed again in 1889, and in 1890 delegates were elected to serve at the convention, which met September 8, 1890.

2

The Honorable Curtis F. Burnam of Richmond suggested that the convention should strike all provisions concerning slavery and similar obsolete sections, readopt the third constitution, and go home. This was not the case, however. One hundred delegates met for 197 legislative days, and after many long debates drafted a constitution of approximately 21,000 words, 60 percent longer than the 1850 constitution.

The men who gathered in 1890 were conservative men. Their age, wealth and rural background undoubtedly promoted conservative thinking even for that conservative time in our history.

Added to the conservatism of the delegates and of the age was the determination of the people to limit the power of the legislature because of abuses which had occurred in the form of special legislation and heavy corporate influence. The changes from the 1850 constitution to the 1891 constitution were made to provide restrictions which would prevent such abuses in the future.

A committee was appointed during the convention to prepare an Address to accompany the constitution. The Honorable Bennett H. Young, Louisville, served as chairman of this committee. The Address, approved by the full convention, provides the following explanations for some of the restrictions written into the 1891 constitution:

(1) A limited legislative session. The General Assembly of 1889-1890 sat 149 days and passed local laws covering over 4,000 pages, with a cost to the state of approximately $168,000 for the session. Figures were provided which showed that if this limit on legislative sessions had been in effect during the previous ten years, the saving to the state would have been $424,164.

(2) Classification of cities; uniformity of laws applicable to local governments. So-called legislative courtesy had permitted any member of the legislature to write the laws governing his constituency. Tax systems, judicial forms and remedies and other governmental forms and agencies were determined by the representative from that particular locality. The need for uniformity is obvious.

(3) Prohibition of lottery. "A single clause settles this evil, places Kentucky abreast of the best civilization of the age and unites her in the effort to repress this unmitigated shame." This quote from the Address leaves no doubt as to the feelings of the convention in this matter.

(4) Voting by ballot fully established. The evils inherent in voice voting were proclaimed and the secret ballot, "the foe of bribe-givers and bribetakers," became the only method of voting for Kentuckians.

(5) Elections were limited to one general election each year. The number of elections in the past had been a source of complaint.

(6) Two constitutional amendments could be proposed at each regular session of the General Assembly. This provision was considered progressive, for the previous three constitutions did not provide for amendments, only constitutional conventions.