The Three-Fifths Compromise, Black Personhood, and Southern Representation

Slaves were counted as three-fifths of a person towards Congressional representation (click for source)

One issue that arose at the Constitutional Convention and almost derailed it was the issue of counting slaves for representation in Congress. States with few or no slaves wanted to count only free persons. States with many slaves wanted to count slaves towards their total. The compromise reached was to count slaves as three-fifths of a person. The relevant part of the Constitution is in Article I, Section 2. It reads, "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."

To see that self-interest guided the argument rather than principle, one must simply look to a similar debate that occurred under the Articles of Confederation. Under the Articles, the national government apportioned taxes to the states based on population, but each state had one representative in the legislature. When the reward for population was taxation rather than representation, views on slavery and personhood were perfectly inverted. Southern states did not want to count slaves as people, and northern states did. For example, Thomas Jefferson complained that southern states would be taxed according to population and wealth, while northern states would be taxed according to population only. Yet as soon as the rewards for counting slaves as persons changed, so too did the rationales. In the Federalist Papers, James Madison went so far as to split the difference and argued in favor of the three-fifths number in its own right, explaining that slaves had "mixed" characteristics of personhood and property.

Of course, many people thought that counting "property" towards representation in the federal government was immoral and absurd. Elbridge Gerry of Massachusetts wondered (sarcastically) if the north could count its "horses and oxen" towards representation. Gouverneur Morris of Pennsylvania stated, "the inhabitant of Georgia and South Carolina who goes to the Coast of Africa, and in defiance of the most sacred laws of humanity tears away his fellow creatures from their dearest connections and damns them to the most cruel bondages, shall have more votes in a Government instituted for protection of the rights of mankind, than the Citizen of Pennsylvania or New Jersey who views with a laudable horror, so nefarious a practice."

However, it was clear that the southern states would not support the Constitution without some provision for increasing their representation. Under this realization the Compromise was reached. It raised questions that those opposed to slavery had to grapple with at the time, and that Americans must still grapple with. What if the northern delegates had been similarly adamant? Were the southern delegates bluffing, or would they really not have ratified a Constitution without the Compromise? Would the two groups have ratified two separate constitutions? If so, would they still be separate today? Would all states have become separate nations? Or would the Articles of Confederation simply persisted? And without a strong central authority, would Great Britain have reasserted its own control over the U.S. (as it wanted do for many years)? If Great Britain would have reincorporated the U.S., would that country's eventual hostility to slavery have become the law of the land? Or would the southern states have eventually rebelled against Great Britain (for the second time) rather than against the United States? And finally, was the United States Constitution as a whole, and our system of government since that time, worth the stain and legacy of the Three-Fifths Compromise? These are questions that can still be debated in the modern day.

The Three-Fifths Compromise only became a dead letter with the passage of the Thirteenth and Fourteenth Amendment. With the Thirteenth Amendment, slaves became free persons and were counted as such for apportionment. With the Fourteenth Amendment, the Three-Fifths clause was officially superseded. The relevant language now read simply, "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."

Ironically, the end of the Three-Fifths Compromise actually increased the representation of white southerners in relation to the rest of the country. For once the era of Jim Crow began, the southern states enjoyed representation based on their entire population, but restricted the vote to a mere portion of the white population. Under the Fourteenth Amendment, these states should have lost representation, but efforts to enforce that provision ran into obstructionism and legal sophistry. For instance, the vote was being denied not because citizens were black, but because they could not pay a poll tax or pass a literacy test. Or so the logic went. It was not until the era of Civil Rights that a serious attempt was made to address this issue.