Spotlights feature the impactful works of past and present KLJ authors
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 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.
The book is available for purchase by clicking the link here. All royalties from the book sales will be given to the RCOL scholarship endowment.
Essay: Becoming Steve Bright by robert L. Tsai
Robert L. Tsai is a Professor of Law and Harry Elwood Memorial Scholar at Boston University School of Law and a ’24-’25 Laurance S. Rockefeller Visiting Faculty Fellow at the University Center for Human Values at Princeton University. His most recent book, Demand the Impossible, outlines Stephen Bright’s career and pursuit of equal justice through the lens of four capital cases that Bright argued in front of the Supreme Court. His essay here, which will also appear in print in Volume 113 of the Kentucky Law Journal, details Bright’s time as an outspoken SGA president at the University of Kentucky during the Vietnam War.
Volume 112 Senior Staff Editor Cited by west virginia court of appeals
Our very own Caleb Childers was cited by the West Virginia Court of Appeals in a May 2024 opinion.
Find Childers cited in footnote 5 of St. Joseph's Hosp. of Buckhannon, Inc. v. Stonewall Jackson Mem'l Hosp. Co. This administrative law case involved a dispute between St. Joseph’s Hospital and the West Virginia Health Care Authority over the proposed relocation of a competitor’s hospital. The Court grappled with the issue of how much deference to give to the Authority in its decision to not require a Certificate of Demand for the relocation.
Discussing Chevron deference, the Court cited Childers’ Note, The Major Question Left for the Roberts Court, Will Chevron Survive? Childers’ Note provides a comprehensive analysis of Chevron deference and its imperiled future in light of the Supreme Court’s recent stonewalling of the doctrine. To read Childers’ Note, click here.