Removing the Exception to Slavery from a State Constitution: A Primer

Draft Legislation: A Primer
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Background

The 13th Amendment to the United States Constitution states:

Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction. 

The key phrase here? [e]xcept as a punishment for crime whereof the party should have been duly convicted. 

This phrase is called the “exception clause.” It legally allows slavery and involuntary servitude as a punishment for a crime. After the 13th Amendment was ratified, many states adopted the exception language into their state constitutions.  This led to new forms of modern slavery and indentured servitude.

Drafting Legislation to Remove the Slavery Exception in Your State: A Primer

This section breaks down the process to:

  • Learn your state’s amendment rules

  • Build your needed supporter base and build consensus

  • Find your bill sponsor

  • Create clear and simple amendment draft language

  • Create statewide constituent education about what the proposal was and why it mattered

THE PROCESS

In order to eliminate the slavery exception language you need to pass an amendment to your state’s Constitution. Each state has its own process to pass an amendment. 

Questions to consider as you learn your state’s amendment rules:

  1. What is your state’s process for amending its Constitution?
  2. Does the amendment process involve multiple votes over multiple sessions or years? If so, what is the threshold for passage of each vote? 
  3.  Is it possible to pass the legislation and have the amendment appear on the ballot in the same year?
  4. Once the amendment is on the ballot, what percentage of votes in favor of the amendment is needed for passage? 

What is a realistic timeline if every legislative vote goes your way? What is your contingency plan for resolving issues and keeping the bill on track? 

Passing a state constitutional amendment requires sponsors. While many legislators technically can be your sponsor, figuring out who is the right sponsor for your bill is critical. 

Finding the best person is not about choosing from a particular side of the aisle. It takes finding someone who can be focused on this bill. It takes someone who can see it through, even when passing your legislation takes years – and you should expect that it could take years.

Questions to consider

    1. If every vote goes well, how long would it take to pass the bill? That will be your baseline timeline.
      1. For example, in Tennessee, you must introduce the bill, pass two votes in two separate General Sessions (which is a total of 4 years, 2 years per General Session), then the amendment appears on the next gubernatorial ballot.. 
  • Who is the best person to sponsor this bill? 
    1. Who has the tenacity to see this through? 
    2. Who will be the most vocal supporter? 
  2. Who is in a safe district who can be reelected? If a legislator is elected every two years but it takes four years to pass the bill, the sponsor will be up for re-election before the bill passes. It may be better to find a sponsor who represents a  safe district.
  3. Are they invested? It takes work to pass an amendment, regardless of supermajorities. You want to find someone who will be accountable and invested in shepherding the bill along.
  4. Do they have a leadership role? Finding a Sponsor or Co-Sponsor who is a Chair or Vice Chair of the committee(s) the legislation is assigned to is a great way to move a bill through committees. 
  5. Are they well connected? Most Southern states have Republican supermajorities. It’s helpful especially to have Republican colleagues if you have a Democrat sponsoring. You’ll likely need this to pass the bill.

Are they a lightning rod? While their fiery passion can inspire one side, it can serve to distance you from potential colleagues and voters on the other side of the aisle.

You’ll need the support of the right sponsors and key state agencies to pass the amendment through the legislature. It is also important to understand the concerns of your potential opponents and turn them into allies. Reducing the number or strength of groups lobbying against the bills will help ensure legislators feel comfortable passing the bill. 

Here are some key groups who can become potential allies to pass your bill: 

  • National business community (Fortune 500 companies)
  • Local business community members & chambers of commerce
  • Faith communities 
  • Justice communities

Questions to ask:

      • What organizations would be most likely to support/oppose removing the slavery exception from your state constitution? 
      • Who are the right business leaders to bring to the table? (Example: Chambers of Commerce, CEOs, and economic development officials)
      • Are there any companies in your state that are required to have Modern Day Slavery statements? 
      • How are various faith communities in your state addressing the legacy of slavery and racism?
      • Which faith leaders should be engaged?

“Slavery and involuntary servitude are forever prohibited. Nothing in this section shall prohibit an inmate from working when the inmate has been duly convicted of a crime.”  – Amendment 3, Tennessee Constitution

Two key factors lead to Tennessee’s success in removing the exception language from their constitution: tightly crafting the amendment’s language to clearly state the purpose of the amendment, and anticipating potential opposition from within state government and working to address those concerns. 

Some supporters in Tennessee wanted to expand the focus to prison work programs and prison wage issues, but sponsors stood firm: the amendment language would only address the exception clause. 

Two other states failed to create clear amendment language to remove slavery from their state constitutions. In California, the conversation broadened from simply removing slavery from their constitution to prison wage issues. Ultimately, the shift caused a $1.5 billion fiscal note to be attached to the measure, which led to its broad bipartisan defeat.

 In Louisiana, the original ballot language was ambiguous and confusing. According to the amendment sponsor, the language could lead to differing legal opinions, and might explicitly allow involuntary servitude as part of the lawful administration of criminal justice. Ultimately, the sponsor withdrew his support and joined the bipartisan effort to defeat the ballot referendum. The amendment sponsor reintroduced the amendment in the 2023 Legislative session but that measure failed to pass favorably in the Senate, keeping it off of the next ballot in the 2023 elections.

Questions to ask yourself: 

      1. Is your amendment focused only on removing your state’s exception clause?
      2. How might the language impact other issues such as prison wages and work programs?
      3. Is there anything in the amendment as introduced that would generate a fiscal note?
      4. Will voters understand what the amendment does and does not do?

Questions to ask yourself: 

  1. How would the passage or failure impact the bottom line of the business community?
  2. How might the passage or failure impact the public’s perception of your state?
  3. How might a company benefit by publicly supporting the effort to remove slavery from your state’s constitution? Does your messaging have broad bipartisan appeal?
  4. Does your messaging create common ground for all parties involved?
  5.  How does removing slavery from your state’s constitution align with each faith community’s mission statement and teachings?

What Comes Next?

In fulfillment of our mission to build a more just, equitable, and inclusive South, EPU serves as a resource serves as  to community leaders, policymakers, and advocates to encourage actionable steps to accelerate positive change. These resources may come in the form of tools including, but not limited to: 

  • Research and analysis
  • Technical assistance
  • Policy development

We would love to connect with you to discuss the change you want to make. Here are ways you can contact us.



Visit Us

Visit our EPU Policy page for more information

Additional Resources

See all our policy toolkits and Big Ideas for Racial Equity

E-mail Us

We can be reached at policy@ununfund.org

Case Study: Tennessee 

On November 8, 2022, Tennessee became the first Southern State to ban slavery from the state constitution. The campaign took six years and brought together one of the most bipartisan coalitions in state history. While Arkansas, Texas, Florida, and Louisiana have fallen short in recent efforts, there are valuable lessons to be learned from the bipartisan Tennessee campaign.

Legislation Step One: Know Your State’s Amendment Rules

In Tennessee, the sponsor needed to introduce the legislation. Next, the legislature had to pass the bill twice. 

The first time, it had to pass by a 50% vote. The second time, it had to pass by a 75% vote. Then, it went to a ballot for public consideration. However, the ballot had to happen in a gubernatorial year.

Legislation Step Two: Identify Your Amendment Sponsors

Passing a state constitutional amendment requires sponsors. While many legislators technically can be your sponsor, figuring out who is the right sponsor for your bill is critical. 

In Tennessee, you must introduce the bill and pass two votes in two separate General Sessions (which is a total of 4 years, 2 years per General Session), before the amendment appears on the next gubernatorial ballot.

Legislation Step 3: Build Your Allies (or Support)

Tennessee’s work to remove the slavery exception clause illustrates how important it is to have the support of the right sponsors and key state agencies. But by building allies, and understanding opponents’ concerns, Tennessee leaders were able to pass the amendment through the legislature.

Business Community

Tennessee is home to a number of Fortune 500 companies that have Modern Day Slavery statements, including Bridgestone, AT&T, and Jack Daniels. Each of these companies is required to address modern-day slavery within their operations and supply chains. These companies supported Tennessee’s efforts to remove the exception clause to showcase their commitment to ending modern-day slavery.

In addition, the bill sponsors built a relationship with lobbyists and chambers of commerce. Businesses in Tennessee rallied around eliminating the exception clause that allows for modern-day slavery. The Nashville Chamber of Commerce played a central role.

Faith Leaders

Tennessee built a broad coalition of faith leaders throughout the process of getting the amendment to the ballot. 

Potential Opposition: Tennessee Department of Corrections

Initially, several legislators and the Tennessee Department of Corrections (TDOC) were concerned the amendment might disrupt or shut down prison work programs. The bill Sponsors worked closely with all parties to address their concerns and further strengthen legislative support for the amendment.

Language Examples

Language Examples

Here is how Tennessee sponsors shaped their language to reach out and hear from different constituencies:

Political: This is not about right or left, it’s about right or wrong. Democrats and Republicans can all agree slavery should have no place in the State Constitution, in America, or anywhere. This is doing the right thing. The state constitution is a moral document, and it should not be used to protect slavery in any form, including modern-day slavery and sex trafficking.

 Business: In business, words matter. The business community values the importance of being a welcoming and inclusive place for businesses to operate. Customers value the brands they use, and many companies are at the forefront of the fight against modern-day slavery and sex trafficking. State-level campaigns provide great opportunities for companies to showcase their commitment to ending slavery around the world.

Faith: Tennessee’s faith organizing strategy included the following statement signed by more than 300 faith leaders: All people are created in the image of God. We are commanded to love one another as God loves us. God desires us to break down barriers and celebrate community and no person should ever be owned by another person. The state constitution is more than an instrument of law – it is a moral document that reflects our values as a people. We have the chance to create a better and more moral document to guide us all.

Craft Clear and Simple Amendment Language

Craft Clear and Simple Amendment Language

It is essential to word your amendment as clearly and simply as possible. 

Prior to the passage of Amendment 3, Article 1, Section 33 of Tennessee’s Constitution read, “That slavery and involuntary servitude, except as punishment for crime, whereof the party shall have been duly convicted,  are forever prohibited in this state.” 

The goal was simple: remove the exception clause (the italicized portion) and make it inarguably clear that slavery and involuntary servitude were forever prohibited in Tennessee. That was the only goal of introducing and passing Amendment 3. 

When legislators or voters attempted to bring other issues into the conversation, such as prison minimum wage, the sponsors were able to say that the only goal of this amendment was to remove slavery and involuntary servitude. It’s not that the other issues weren’t important. They were simply outside the scope of the amendment as presented. 

Additionally, the sponsors knew both legislators and voters wanted clarity on whether the amendment nullified prison work programs. If so, the greatest potential opponent would be the Tennessee Department of Correction (TDOC). Prison work programs are core to their function. Thus, our amendment sponsor met with the TDOC legislative liaison to craft an addition to the amendment clarifying that incarcerated individuals would still be able to work. This allayed the TDOC’s concerns and allowed them to take a supportive position.