Kentucky Senator: Abuse of Power or Discounting an Oath of Office?

A recent news blast about a Kentucky Senator avoiding arrest for a DUI is generating much comment, stirred on by the assumption he was abusing his power. Au contraire! The 1891 law cited was not enacted to allow the legislators entitlement but rather protect the legislators from legal abduction or collusion to prevent a legislative session.

Kentucky State Senator Brandon Smith (R) and his attorney, Bill Johnson, have cited Section 43 of the Kentucky Constitution, which is still on the books and states:

The members of the General Assembly shall, in all cases except treason, felony, breach or surety of the peace, be privileged from arrest during their attendance on the sessions of their respective Houses, and in going to and returning from the same; and for any speech or debate in either House they shall not be questioned in any other place.”

What are the initial violations the Senator instigated which provoked an arrest?

20 miles over the speed limit and driving while under the influence. Apparently his arrest was based on several failed field sobriety tests. Smith blew a .088 on a preliminary breath test.

When the 1891 law was enacted the following misdemeanors were not in the scope of the legislators imagination: operating a vehicle while drunk, using stolen credit cards, or possession of meth. While other misdemeanor activities affording the protection of Section 43 existed in Kentucky from 1891 to 2015, apparently, the magnitude of consequences and need to be excluded from protection was not enough to amend the Constitution. However, the presumed moral plateau of elected officials and the voters would not have allowed such a person to have been elected. Therefore, why should we allow or trust someone who engages in misdemeanor or criminal activity, continue to have power to enact legislation? Let alone the fact they are conducting themself in such a manner within 12 hours of raising their hand to uphold the law of the State and Country.

What does the Senator have to deal with now?

Once in the custody of police at the Franklin County Regional Jail, he refused an official breathalyzer. Under state law, refusing a breathalyzer is an automatic suspension of one’s license. His justification is the length of time (15 minutes) it took for a phone connection to his attorney, which then led to appropriately citing the 1891 law. So the question becomes, was Smith agitating the situation in order to change the law and gain notoriety? Or ?

Is Kentucky a state with flawed laws and should the Federal Government Intervene?

This latter issue “should the Federal Government intervene” seems to be the mantra today for solving everything. Should we expect a hungry, lecherous attorney or reporter to cite the need for “backward” Kentucky legislators to stop allowing the usurpation of power etc., etc., etc.! What are the historical changes in the Kentucky Constitution, specifically in 1891?

What about Kentucky’s 1891 Constitution?

Kentucky enacted their Constitution in 1792, when they became the 15th state to join the Union. However, by 1850 they had to correct some aspects of their original document, such as the appointment of so many officials by the governor. It was the issue of slave property that generated the next call for Convention . This call failed every two years from 1873 to 1885. However, the difficulty of calling for a constitutional convention, as it should, has kept the 1891 Constitution (changed only by amendment) as what governs the Commonwealth of Kentucky today.

Kentucky’s 1891 Constitution align the state laws with the US Constitution in regards to the slavery issues. It also allowed the General Assembly to pass amendments which would keep the Constitution current . Interestingly it also limited the salary of state officials to $5000/year. Currently they are paid $188.22 session per diem (which is 110% of the Federal per diem rate) and an additional $1.788.51/month base salary.

Why would Kentucky enact Section 43?

Stephen Voss, an associate professor at the University of Kentucky, has been interviewed by numerous media and explains the idea of legislative immunity goes back to before the U.S. Constitution. He has been quoted as saying

“It grew out of abuses of the legal system by the kings of England among other sources,”

“ in those days, before our legal system had been firmly established, people who disagreed with a lawmakers position would do whatever they could to make sure they didn’t get a chance to vote.”

“They’d have arrested members of legislatures who weren’t on their side on an issue of the day,” he said.

As states began writing their own constitutions they often copied the language found in others.”

“kings would refuse to call a parliament into session, or lock up parliament members, for fear of opposition.”

“Just terrible abuses of democracy,”

“The basic fear was that the legal system could be abused to keep the people’s representatives from doing their jobs.”

The possibility of abducting legislators is not far-fetched and maybe Johnson’s incident will bring attention to the fact such an event occurred in order to pass the 16th amendment, which opened the door to a graduated income-tax and the enforcement of mandatory health care via a court-authorized reporting agency.

In Conclusion

The protections afforded in the Kentucky 1891 Constitution are not an abuse of power, rather the behavior of the State Senator is a violation of vehicle code AND an affront to each person who voted for him, given his DUI transpired within 12 hours of swearing an oath to uphold the Kentucky and the United States Constitution.