Book Review – Thomas Jefferson & The Kentucky Constitution, Denis Fleming Jr. (2025)
Book Review – Thomas Jefferson & The Kentucky Constitution, Denis Fleming Jr. (2025)
Reviewer – Jacob Bruce, RCOL Class of 2025
Thomas Jefferson’s authorship of a portion of the Kentucky Constitution has been something of legend among Kentucky litigators for the last two centuries. On numerous occasions when the appellate courts were faced with a question regarding the separation of powers between the branches of state government, they would almost always begin with an assertion that the venerable terms of Sections 27 and 28 of the Kentucky Constitution began at Jefferson’s Monticello estate under his penmanship. Denis Fleming, in Thomas Jefferson and the Kentucky Constitution, takes great strides in sorting myth from fact, and placing greater confidence in this long-held belief.
Fleming begins the book with a well-researched, highly-detailed analysis of two of Kentucky’s earliest leaders and framers of the first two constitutions – George Nicholas and John Breckinridge. Not only did these two men play an instrumental role in the drafting of these documents, they also hailed from Virginia and were involved in early sessions of the Virginia legislature while Jefferson was Governor. Utilizing an array of primary source documents – books, letters, and notes – Fleming illuminates the extent of the relationship between Thomas Jefferson and these early Kentucky framers. Going further, Fleming does a superb job of addressing the less-known “Kentucky Resolutions,” a controversial piece of legislation allowing for the state to nullify a federal law, and historically confirmed to have been authored by Jefferson in secret. By comparing the nature and contents of these resolutions, and Jefferson’s private discussions regarding them, Fleming strengthens the legend regarding Jefferson’s authorship of the Kentucky Constitution itself. While certain aspects of whether Jefferson was the one who put “pen to paper” on these essential provisions, Denis Fleming leaves the reader with greater clarity that the contents of these provisions are clearly inspired by Jefferson, if not by his own hand.
But the author does not leave the reader with a mere discussion of history standing alone. Instead, Denis Fleming draws on his more than 40 years of legal practice, and experience working in state and federal government and in private practice, to illuminate the modern application of these provisions. Fleming provides a great survey of various important Kentucky opinions that have drawn inspiration from Jefferson’s authorship in interpreting the scope of Sections 27 and 28, with a special focus on the jurisprudence of Chief Justice Robert F. Stephens (RCOL Class of ’51). He also provides countless anecdotes and behind-the-scenes discussion of how these provisions played into key decisions during the administration of Gov. Paul Patton, Kentucky’s first Governor to serve two consecutive terms. As General Counsel in Patton’s administration, author Denis Fleming shared invaluable internal memoranda and perspective that go a long way in breathing life into these centuries old provisions, with the goal of bettering the lives of all Kentuckians. Any Kentucky practitioner can look to Fleming’s book for inspiration on how to utilize key centuries-old provisions of Kentucky’s Constitution for the benefit of the Commonwealth today.
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