Monday, March 6, 2017

The complicated legacy of the “Three-Fifths Clause”

It appeared on the surface to be one kind of racism, but in reality was another ...

One of the most controversial parts of the original Constitution was a clause called the "Three-Fifths Clause," which had to do with slavery. It was undoubtedly a terrible thing to have written into the Constitution, but the way that it was bad has been misunderstood by most modern people. The popular misconception is that slaves were considered three-fifths of a person, as a way of asserting their "inferiority" and denying that they were fully human. Slaveholders undoubtedly did consider them to be inferior and deny their humanity both; but the purpose of the Three-Fifths Clause was something different, which was to augment the power of the White South. The Three-Fifths Clause was, at its heart, a struggle over power; and was a deliberate way of preventing the South from being punished for the crime of slavery by having its representation reduced - something which would have made the White South less powerful than its northern neighbors.

Constitutional Convention

One of the ironies of the Constitutional Convention is that it was the Southerners who wanted this number to be higher, and the Northerners who wanted it to be lower - even arguing for the complete exclusion of slaves from the population count, for as long as they were denied the power to influence the increased representation that their presence brought to the South. The North's advocacy for the exclusion of slaves from the population count was thus not based on racism, I might add here, but on their firm opposition to racism - and specifically, on the power that including slaves in the population count would have brought to the inherently racist institution of American slavery. "If we're going to have slavery," the Northern delegates argued, "then we at least shouldn't reward the states that practice it with more power in Congress (or the electoral college)" - a paraphrase of their arguments, but one that captures the essence of them. It was thus only under threats of Southern secession from the United States that they reluctantly agreed to include slaves in the population count, knowing that the nation's survival was uncomfortably dependent upon their alliance with the slaveholding South.

Interior of Independence Hall

Thus, it was the Southern states that advocated including the slaves in the population count, because they knew it would bring increased power to the white majorities that actually controlled the representation that these slaves would bring; and three-fifths may have been the number that best seemed to equalize the power between North and South. The terrible thing about the Three-Fifths Clause is thus not that it counted slaves as less than full persons (it didn't), but that it rewarded their masters with more political power by counting them at all under these circumstances - something that was anathema to the antislavery movements in the North, and thus brought swift condemnation of this clause from virtually all Northerners at this time; including a few who did not care about slavery at all, but just distrusted the power it gave to the Southern states over the Northern states. In other words, it brought condemnation from Northerners on both ends of the political spectrum with regards to slavery - both those who opposed it, and those who did not: All of them were infuriated over the power that it gave to distrusted Southerners over the Northerners.

Gouverneur Morris, one of the men present at the Constitutional Convention,
who was the author of much of the final draft of the Constitution (after it had been agreed to by others)

The hypocritical nature of this clause was pointed out by some of the men present at the Constitutional Convention itself - most notably, from Gouverneur Morris, who said (in essence): "Are slaves property? Then why is not other property included in the computation? Are they people? Then make them citizens and let them vote!" - and really, I paraphrase him only slightly. It may have been an uncomfortable knowledge of this hypocrisy that led the Supreme Court to omit mentioning this clause, when it argued later in its infamous "Dred Scott" decision that the Constitution supported institutional racism. This is significant, when you consider that they mentioned other clauses to support their argument - such as the Slave Importation Clause, and the Fugitive Slave Clause - but did not include the Three-Fifths Clause in their argument here. The irony of this is that the Three-Fifths Clause may have been the most racist clause of them all, since it gave political power to the people that most engaged in this racism; but Chief Justice Taney knew full well that the South depended upon the inclusion of slaves in the population count for its political power in Congress (and the electoral college), and he was thus caught in a dilemma: If he argued against the inclusion of slaves in the population count, he would deny the South a significant portion of the political power it then wielded, something that was repugnant to him; but if he argued that it was okay to include slaves in the population count, then this would admit that they were (at least partially) human; because they were the only kind of "property" to be included in the population count like the citizens recognized as freemen were (even if only partially) - something he dared not say, in his argument that the Constitution authorized racial discrimination. His solution to this uncomfortable dilemma was thus to omit mentioning the Three-Fifths Clause at all in his argument for institutional racism in the "Dred Scott" decision, and focus instead on the Slave Importation Clause and the Fugitive Slave Clause - the ones he could hold up as examples of how slavery had been written into the Constitution, without acknowledging the hypocrisy that was inherent in this other (more complicated) clause - the Three-Fifths Clause.

Chief Justice Roger B. Taney, the author of the "Dred Scott" decision

It might be appropriate here to mention one other part of the Three-Fifths Clause which has likewise been neglected by popular historians, which is that "direct taxes" were also proportioned to this population count. In the words of the Constitution, "Representatives and direct taxes shall be apportioned among the several States which may be included within this Union, according to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three-fifths of all other persons." (Source: Article 1, Section 2, Paragraph 3) Why is this part about "direct taxes" relevant to slavery? Perhaps because the power to tax slavery would have been the power to destroy it, and a Three-Fifths Clause without this important feature would have allowed the Congress to destroy slavery by taxing it to death. So long as "direct taxes" were proportioned to the same population count used to determine representation in Congress ("Three-Fifths Clause" and all), then slavery was protected from the power of the Congress to impose any fatal taxes upon it. This is an often-overlooked aspect of this complicated discussion surrounding the legacy of the Three-Fifths Clause, which protected (and empowered) slavery in more than one way. The Constitution thus reinforced this controversial idea with still another provision, which said that "No capitation, or other direct tax shall be laid unless in proportion to the census or enumeration herein before directed to be taken" (Source: Article 1, Section 9, Paragraph 4) - thus requiring any such taxation to take into account the Three-Fifths Clause. (This provision, I might add, was protected from constitutional amendments "which may be made prior to the year 1808," by Article 5 of the Constitution - the very part of the Constitution specifying the process by which the Constitution could be amended. See the text of Article 5 for the exact wording.)

Title page from the original book printing of the "Federalist Papers"

In one of the Federalist Papers, either Alexander Hamilton or James Madison (the author of this particular essay is not known for certain) defended this aspect of the Constitution by saying that "In one respect, the establishment of a common measure for representation and taxation will have a very salutary effect. As the accuracy of the census to be obtained by the Congress will necessarily depend, in a considerable degree on the disposition, if not on the co-operation, of the States, it is of great importance that the States should feel as little bias as possible, to swell or to reduce the amount of their numbers. Were their share of representation alone to be governed by this rule, they would have an interest in exaggerating their inhabitants. Were the rule to decide their share of taxation alone, a contrary temptation would prevail. By extending the rule to both objects, the States will have opposite interests, which will control and balance each other, and produce the requisite impartiality." (Source: Federalist No. 54)

Alexander Hamilton, who may have been the author of this particular Federalist Papers quote

James Madison, who also may have been the author of this particular Federalist Papers quote

In other words, if Congressional representation is proportioned to population without direct taxes also being proportioned in this way, this (unknown) Founding Father argued, states will be tempted to inflate their numbers so they can have greater representation in Congress. But if direct taxes are also apportioned in this way, he continued, then this temptation will be counterbalanced by the aversion to the higher taxes that would result from this. In our current state, where direct taxes are instead proportioned to income and other things, the only interest states have with regards to the census is to inflate their numbers; and with federal handouts likewise being proportioned to population, this temptation is even greater. Undoubtedly, this reasoning sounded much better to the Northern public than the real reason for having a common measure for these things, which was to protect the institution of slavery from any fatal taxation. Thus, when slavery was eventually abolished by the Thirteenth Amendment in 1865, the real reason no longer existed for anyone (even the White South); which is why this part of the Constitution was amended still another time in 1913, when the Sixteenth Amendment said that the Congress could lay and collect taxes on incomes "without apportionment among the several States, and without regard to any census or enumeration." (Source: Sixteenth Amendment) I might add that the Sixteenth Amendment seems to have been a good amendment, even with the state biases towards inflating their populations; because it seems more fair to me to apportion taxes to actual incomes than to apportion them to a population count that doesn't take these income differences into effect - even if that population count no longer has anything to do with slavery (it doesn't), and hasn't had anything to do with it for over a century and a half.

Fugitive slaves working in Union army, circa 1862 (during the Civil War)

I might also note one other irony about the Three-Fifths Clause, which is that when all former slaves were made citizens with the Fourteenth Amendment, their being counted as one full person from then on meant that the political power of the South in Congress (not to mention the electoral college) actually increased overnight. Thus, in theory, African Americans had the same power to influence that representation as the Whites did, when the Fifteenth Amendment later gave them the right to vote. But putting those rights on paper did not mean that they actually had these rights in practice, which was why the Fourteenth Amendment provided that when the right to vote was "denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged ... the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such States." (Source: Fourteenth Amendment, Section 2) In other words, this amendment said, the Southern states don't get the full added votes if African American males in it are still being denied a say in it. The fact that this provision only applied to males was undoubtedly a major weakness, and one which set back the women's rights movement for decades; but it was nonetheless an attempt to provide for the punishment of any states that denied voting rights to their former slaves, and it would have been fortunate indeed if this provision had actually been enforced during the segregation era following the Civil War, when voting rights were nonetheless denied to many African Americans on account of their race. (With the exception of certain parts of the Reconstruction Era, African Americans did not often receive voting rights until the civil rights movement of the 1960's.)

Freed blacks voting in New Orleans, 1867 (during the Reconstruction Era)

For these and other reasons, the Three-Fifths Clause is one of the most complicated parts of the original Constitution; and as detailed in this post, its legacy was likewise complicated for the generations that lived under it (and for those of us who ponder its legacy today). It was undoubtedly one of the worst clauses in the Constitution (perhaps even the worst); and the political power it gave to the White South was a major factor in the first eighty years or so of this country's history.

Footnote to this blog post: The country abolished slavery in 1865 with the Thirteenth Amendment, which said that "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." (Source: Thirteenth Amendment to the United States Constitution, Section 1But the most direct change to the Three-Fifths Clause was this portion of the Fourteenth Amendment: "Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed." (Source: Fourteenth Amendment to the United States Constitution, Section 2) This is now the way that representation is done in this country in the House of Representatives, and it has been done that way there ever since this amendment was officially ratified in 1868.

If you liked this post, you might also like:

Dred Scott: The most infamous decision in Supreme Court history

Frederick Douglass: The forgotten antislavery leader

A review of Ken Burns' "The Civil War"

Part of a series about
The Constitution

The Constitution itself, and the story behind it

Convention at Philadelphia: The writing of the Constitution (1787)
Preamble: The Constitution's mission statement, with some thoughts about separation of powers
States' rights: The conflict between the "several states" and the federal government
The Congress: Its power to make laws, and the president's power to veto them (in some cases)
Powers of Congress: A few reasons why the Congressional elections are so important
Frequency of elections: So how long do all of these people serve, anyway?
Representation: So who decides how many votes each state gets?
Slavery: The complicated legacy of the "Three-Fifths Clause"
The presidency: Powers of the executive, and their being subject to impeachment
The courts: "Good behaviour," some important judicial powers, and how they're appointed
Miscellaneous: Amendment process, "supreme law of the land," and some closing remarks

Debates over the Constitution, then and since

Debates over ratification: Whether to adopt the Constitution in the first place
The "Federalist Papers": Frequently asked questions about them, and why they're important
Debates over checks & balances: Do they actually conflict with separation of powers?
The Bill of Rights: Important in the debates over ratification (adopted 1791)
The Constitution today: Some thoughts about civics education

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