A Constitutional Crisis: The Kentucky Court of Appeals Schism, 1824-1826

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This thesis examines Kentucky’s tumultuous political history from 1824 to 1826. Prompted by power struggles between the legislature and judiciary, a court schism ensued. Dueling judicial bodies, the “Old Court” versus the “New Court,” each claimed to be the rightful Court of Appeals. In answering why a schism occurred and how it was resolved, I identify and analyze the underlying critical yet subtle constitutional issues.
When Kentucky’s debtor relief laws were ruled unconstitutional in 1823, the legislative majority and its constituents were outraged. Although statesmen initially appeared politically-motivated, the debate mushroomed into a critique of their democratic form of government and what powers the state constitution sanctioned to each branch.
Words led to action. In 1824, the legislature enacted a law to disband and replace the original court. However, the “former” judges refused to resign causing two tribunals to exist concurrently. A new constitutional question emerged: Did the legislature have the authority to dissolve the highest state court? Two political parties formed espousing opposite viewpoints and supporting the corresponding “legitimate” court.
Over the next two years, the parties addressed “the people,” the true ruler of the republic, about this issue. Both parties utilized the constitution as an authoritative force, but presented arguments based on competing notions about republicanism, popular sovereignty, the written constitution, separation of powers, and judicial review. The thesis distills these positions to discern the political ideologies fueling the controversy.
Ultimately, the factions, legislature, and contending courts entrusted “the people”—provided with facts and an awareness of democratic ideals—to resolve the controversy. Kentuckians utilized the annual state elections to voice popular will. In 1826, the legislature reflected the citizens’ wishes by repealing the law that disbanded the original Court of Appeals. This ended the schism and clarified the scope of judicial jurisdiction.
Kentuckians reconciled discrepancies within the text and interpretations of the state constitution, the written will of “the people.” In the process, conceptions of popular sovereignty shifted. This scholarship provides a unique case study of popular constitutionalism, in which all three branches of government simultaneously appealed to the voters’ constitutional powers.



Honors Thesis; Awarded Highest Distinction




Nudelman, Sarah (2010). A Constitutional Crisis: The Kentucky Court of Appeals Schism, 1824-1826. Honors thesis, Duke University. Retrieved from https://hdl.handle.net/10161/2829.

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