The U.S. Constitution’s “Three-Fifths” Clause

This is slightly off-topic, but it’s about the Constitution, and that embodies the ideals of the Enlightenment. Therefore this has overall relevance to our theme of defending reason, liberty, and science.

One of the standard assaults on the integrity of the American experience and the virtues of the Founding Fathers is the presence in the Constitution of what is known as the three-fifths clause. It’s in Article 1, Section 2, which describes the House of Representatives, and how taxes and representatives shall be apportioned among the states:

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.

There have been endless laments about that clause, interpreting it to mean that those in slavery (which was bad enough) were deemed to be only three-fifths human. A typical example is found in this Transcript Of A Jeremiah Wright Sermon, which says:

And he set me free to forgive stupidity, and he set me free to praise God in spite of an oppressive government. Our government has been oppressing folk since we stole this country from the Comanche. But I’m going to praise Him in spite of the government. Our country has been oppressing folks since it defined African men as three-fifths of a person. But I’m gonna praise Him in spite of our government. …

But is that really what the three-fifths clause is all about? We learned its history and meaning from reading the works of Merrill Jensen (1905–1980), an historian at the University of Wisconsin. He specialized in writing about the Articles of Confederation and the period leading up to the Constitution. It’s perhaps due to his scholarship that correct information can be easily found these days — for example, in the Wikipedia article on the Three-fifths compromise. But that only points out the bare facts. With our bold font added it says:

The three-fifths ratio was not a new concept. It originated with a 1783 amendment proposed to the Articles of Confederation. … The proposal by a committee of the Congress had suggested that taxes “shall be supplied by the several colonies in proportion to the number of inhabitants of every age, sex, and quality, except Indians not paying taxes.” The South immediately objected to this formula since it would include slaves, who were viewed primarily as property, in calculating the amount of taxes to be paid.

[...]

After proposed compromises of 1⁄2 by Benjamin Harrison of Virginia and 3⁄4 by several New Englanders failed to gain sufficient support, Congress finally settled on the 3⁄5 ratio proposed by James Madison. But this amendment ultimately failed … .

The proposed ratio was, however, a ready solution to the impasse that arose during the Constitutional Convention. In that situation, the alignment of the contending forces was the reverse of what had obtained under the Articles of Confederation.

True, but not very exciting. As we recall from reading Jensen’s work several years ago, it was far more interesting than that. Under the Articles, the national government had no power to tax, so they needed a formula to apportion the voluntary contributions of each state. That formula would be based on either population or property. Naturally, every state wanted to keep its own contribution low, so while they were discussing a population clause, the South wanted only citizens to be counted. The North, seizing upon a delightful opportunity to combine both Yankee piety and frugality, insisted that all people should be counted — which meant greatly increasing the South’s population count and thus its share of the government’s cost.

The South objected. First, because it was an expensive proposal for their states; and second, because counting slaves was — to them — counting property, and this wasn’t supposed to be a property tax. That’s when the fractional compromises started flying around, ending up with 3/5 of the “others,” which the North strongly urged should be accepted. But it didn’t pass, and the Articles ended up with this:

Article VIII. All charges of war, and all other expenses that shall be incurred for the common defense or general welfare, and allowed by the united States in congress assembled, shall be defrayed out of a common treasury, which shall be supplied by the several States in proportion to the value of all land within each State, granted or surveyed for any person, as such land and the buildings and improvements thereon shall be estimated according to such mode as the united States in congress assembled, shall from time to time direct and appoint.

Jensen says that even after all that wrangling, some states didn’t pay their shares. Hey, did you know although we operated under the Articles almost from the beginning, official ratification was delayed until 1781? That’s when the smallest of the states (Rhode Island and Maryland) finally signed on, after the largest (Virginia and New York) gave up their claims to vast areas of the West. That, dear reader, is where the Northwest Territory came from.

One more interruption: We had several Presidents before George Washington. See President of the United States in Congress assembled for a list of those who served under the Articles.

But let’s get back to the three-fifths clause. Okay, we know it started as a Yankee tax proposal, and it didn’t fly. Now flash forward to the Constitutional Convention in 1787. The delegates were working out this new-fangled thing called the House of Representatives. An old issue surfaced: How do we count people for this purpose?

Unlike the earlier tax debate under the Articles, for this new purpose — representation in the Congress — population was a good thing for a state to have, so everyone’s position suddenly flip-flopped. Now the South wanted to count everyone — yes, even those who were their property. And the pious North was clamoring for what had originally been the Southern position — that’s right, the Yankees now wanted only citizens to be counted, not the “others.”

So some smart Southern fellow — probably Madison — said (in effect):” Hey, remember that nifty three-fifths clause you Yankee boys were trying to push on us a few years ago? Well, we’ll take it!”

Whereupon the Yankees responded (in effect): “No you don’t! Back then we were talking about taxation, and now we’re talking about representation, and you can’t mix up those two very different topics — oh, wait …”

Yes, dear reader. You see the irony. They had just had a Revolution over the concept of “No taxation without representation.” Now there was no getting away from it. If the Yankees thought three-fifths was a good idea for taxation, well then, they were stuck with it for representation too. Upon reflection, the clause reduced the voting power of the South in the House of Representatives from what it might have been, so … well, that’s history.

Now you know why the Constitution was written as it was, with the section containing the three-fifths clause beginning: “Representatives and direct Taxes shall be apportioned among the several States …”

Okay, you in the back — what’s your question? You say you’re not going to let me off the hook that easily? You say that the three-fifths clause, however it came to be, reflects the fact that the nation had slavery, so the Constitution is inherently evil.

Look. We’re an old country. Back in those days all the world had slavery — and it always did — every country, everywhere. It’s even in the Ten Commandments (Thou shalt not covet thy neighbor’s house, thou shalt not covet thy neighbor’s wife, nor his manservant, nor his maidservant, nor his ox …). But we were writing a Constitution, and the others didn’t, so a reminder of the past got preserved in amber. Yes, that’s true. And we’ve come a long way since then; that’s true too.

Okay, let’s wrap this up. What do we conclude? Only this: The three-fifths clause, despite its obvious historical context, was not a debate about the relative value of various races — were it so, the North and South wouldn’t have flip-flopped about advocating “count everyone” clauses when it suited them.

That’s where we’re going to leave it. Oh, and if you get a chance, take a look at some of Merrill Jensen’s work. The Articles of Confederation were better then you ever knew.

Copyright © 2011. The Sensuous Curmudgeon. All rights reserved.

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5 responses to “The U.S. Constitution’s “Three-Fifths” Clause

  1. You could use this as an illustration of how nations, like species, adapt to changing conditions over time. That clause is no longer valid, thanks to an amendment, showing that our constitution has a selection mechanism built into it. That being the case, our nation has done well in the competition for scarce resources, while others that have not been able to adapt have done poorly.

  2. Greg Camp says: “That clause is no longer valid, thanks to an amendment …”

    Yes, the 14th Amendment changed it to “the whole number of persons in each State, excluding Indians not taxed.” Which leaves me wondering if illegal aliens are included in that count.

  3. Back in those days all the world had slavery — and it always did — every country, everywhere

    Well, actually in 1787 when the constitutional convention was discussing this clause, England had already de facto outlawed slavery for 15 years. Of course, France first made slavery illegal in 1315 (it didn’t stick) and Sweden made it illegal in 1335 (that did stick). And those are just a few examples of many abolition movements that went on before the late 1700s.

    I do agree that we have to view the founders in the context of their times. But a simplistic ‘everyone did it’ explanation is just as incorrect as the simplistic, liberal ‘it is socially unacceptable now and they should’ve known better’ answer. The position the modern world takes on slavery was one of the positions that the founders would have been aware of, and probably considered. They didn’t take it. Probably due to political realities we don’t have to deal with today…however, the ‘all the world has slavery’ argument is a weak excuse even for the founders, because it wasn’t true even back then.

  4. Gabriel Hanna

    @SC:Which leaves me wondering if illegal aliens are included in that count.

    Yes, the Census counts illegals as part of a state’s population for apportionment.

  5. eric says:

    … the ‘all the world has slavery’ argument is a weak excuse even for the founders, because it wasn’t true even back then.

    I agree that the practice of slavery could have been abolished here and there where it involved, say, military captives who became household servants and such. However, I suggest that slavery was practiced wherever there were large-scale agricultural operations. In other places, serfdom was more or less the same idea. And what can we say about the impressment of sailors for the British navy?

    The Founders were born into a world they didn’t create. They did splendidly in re-making that world. I judge them by what they accomplished in their circumstances. It makes no sense to judge them by standards that didn’t exist until generations after they were born. I don’t want to be judged by people in the 23d century. They might think I’m evil for using paper and eating meat.