Kentucky’s Constitution still allows for slavery. A group of teens is pushing to change it
When Rev. Michael Swartzentruber tells people the Kentucky Constitution still allows slavery as a form of punishment, the reaction of many is the same.
“What?”
It’s true.
Section 25 of the Kentucky Constitution reads: “Slavery and involuntary servitude in this state are forbidden, except as a punishment for crime, whereof the party shall have been duly convicted.”
It’s called the exception clause — allowing for involuntary servitude if someone has been convicted of crime. It’s largely copied and pasted from the 13th Amendment of the U.S. Constitution, which did away with slavery except as a punishment.
Many states, including Alabama, Colorado, Vermont, Nebraska and Rhode Island have modified or changed their constitutions to prohibit all forms of slavery.
Swartzentruber, a minister of Lexington’s South Elkhorn Christian Church, learned of the exception clause after his church youth group took a trip to Alabama in 2022 to visit several slavery and civil rights museums. The teens came back and wanted to do more to address racism in Kentucky. Through his work with other churches in the Disciples of Christ, Swartzentruber learned Kentucky’s Constitution allowed for slavery as a punishment and about other states’ push to have it removed.
Many teens in the church youth group thought it was long past time Kentucky changed its constitution.
“This reflects poorly on Kentucky as a whole,” said Cora Breitigan. “There’s not a single good reason why this clause should still exist in today’s world.”
Breitigan was one member of the South Elkhorn Christian Church youth group who testified Monday before the legislature’s Joint Commission on Race and Access to Opportunity Committee. In addition to the youth, members of the Lexington Human Rights Commission and the Kentucky Human Rights Commission testified in favor of a constitutional amendment to remove the exception clause.
Kennedy Fuqua, a South Elkhorn Christian church youth group member, urged the legislature to fix the problem now.
“Why would anyone think that this clause is still valuable in our constitution?” Fuqua said. “We believe this needs to be changed but we cannot do it alone. So we ask: Will you sit back and let this detrimental phrase create potential problems, or help us fix what’s right?”
Why and how prisoners can be enslaved
Ray Sexton, executive director of the Lexington Human Rights Commission said the exception in the constitution was to allow for “hard labor” or “chain gangs” that were frequently used in prisons in the late 1880s, when the 13th Amendment was passed.
But it was also used to arrest and detain Black people after the Civil War, Sexton told the commission Monday.
“The ‘exception clause’ loophole led to repressive 19th-century laws in the South known as Black Codes that allowed authorities to incarcerate Black people for petty crimes, such as vagrancy, and then force them to work. Black Codes were a precursor to the Jim Crow laws outlawed by the Civil Rights Act of 1964,” Sexton said.
David Childs, a professor of Black studies at Northern Kentucky University, said many southern states in the late 1880s and early 1900s contracted with plantations to provide labor. Those contracts provided a large source of income for southern states and led to many Black people being arrested for bogus charges and pressed into labor. Convict leasing was eventually banned. However, some companies still use prison labor but pay those inmates significantly less than non-prison employees, Childs said.
Rep. Killian Timoney, R-Lexington, said an effort in Louisiana to repeal the exception clause failed because of concerns that doing so would nix all work programs in prisons.
Some states, including Utah, have made it clear after removing slavery exception language that prisoners are still allowed to participate in work programs at state prisons, Sexton said.
A path forward?
Sexton was approached by the church in November 2022 about how to advocate for a constitutional amendment.
Sexton recommended starting locally. The group has already approached the Lexington-Fayette Urban County Government about sponsoring a resolution backing the constitutional amendment. That process is still in the works.
But word quickly spread about the effort and the group contacted Timoney, who co-chairs the Commission on Racial Justice, and Timoney invited the group to testify Monday.
Timoney said during Monday’s legislative hearing that he would be interested in helping the group move the legislation forward.
If the General Assembly passes the constitutional amendment — which takes a super majority of three-fifths of both chambers — it would still have to go to voters to approve or deny. What types of constitutional amendments make it on the ballot can also be determined by politics. Some amendments are crafted to draw or bring certain types of voters — more liberal or conservative — to the polls. The earliest a constitutional amendment could appear on a ballot is November 2024.
An earlier effort nearly a decade ago by the Kentucky Human Rights Commission to have the exception clause removed from the constitution was not successful.
Sen. Gerald Neal, D-Louisville, has also filed bills in the past to strike the language from the constitution but that legislation did not move forward. Neal said Monday he hopes to pursue the legislation again come January, when the General Assembly reconvenes.
Swartzentruber knows the amendment faces political uncertainty in Frankfort.
He’s cautioned the South Elkhorn Creek youth group about the perils and pitfalls of the political system.
“There can be various pots of resistance at various points in time,” Swartzentruber said.
It’s not just symbolic. Words matter, he said.
“We have to scrub this if we want to have any shot of any other types of progress,” he said.
Sexton agreed.
“This antiquated language continues to perpetuate the systemic and systematic racism that plagues our society and continues to tell our marginalized communities that their lives do not matter,” he said.
