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Kentucky's Constitutional Crisis and the Many Meanings of Judicial Independence

Special Issue: The Discourse of Judging

ISBN: 978-1-78052-870-0, eISBN: 978-1-78052-871-7

ISSN: 1059-4337

Publication date: 20 August 2012


One of the most dramatic controversies over judicial independence in the United States occurred at the state level, in antebellum Kentucky, when two entirely different state high courts remained in operation, each claiming to be the only legitimate tribunal. This chapter describes Kentucky's two-court crisis, but focuses primarily on the constitutional convention of 1849, which followed it. Through the lens of modern scholarship about judicial independence, the lessons that antebellum Kentuckians drew from their own history seem quite counterintuitive. They did not view their project of judicial design as a matter of balancing judicial independence with accountability, a task that many modern scholars of American politics have posited as the central problem of judicial design. Instead, Kentucky's constitutional convention sought to structure an institution that would allow the state's courts to respond to popular sentiment without compromising their independence. Thus, these debates suggest frameworks for understanding judicial independence that do not pit independence against judicial accountability or popular politics, but attempt to discern which forms of politics threaten the independence of courts, and which forms may not.


Zackin, E. (2012), "Kentucky's Constitutional Crisis and the Many Meanings of Judicial Independence", Sarat, A. (Ed.) Special Issue: The Discourse of Judging (Studies in Law, Politics, and Society, Vol. 58), Emerald Group Publishing Limited, Bingley, pp. 73-99.



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