3/5’th’s of the Way to Freedom

We hear a great deal from today’s political leaders about “working across the aisle,” being able to “compromise,” or even something called “bi-partisanship,” but it’s pretty clear that compared to the Framers, our leaders have no real understanding of the word.

We are led to believe on a regular basis that one of the uglier facets of the Constitution is the so-called 3/5th’s clause, which decrees that slaves of the day were to be counted as a mere sixty percent of a person. Q.E.D., goes the argument, the Framers denied slaves their equal status as men endowed by their Creator with unalienable rights, so they were thusly racists. And since they were racists, the entire Constitution is therefore tainted by their racism and thusly is not to be taken seriously or to be done away with or is no longer applicable to today’s world or any one of dozens of arguments against the Constitution that begin with just three-fifths of an idea.

There is no question that Slavery was a stain upon the nation as a whole, but let us consider two unarguable facts about the Constitutional Convention. First, the Framers did not initiate the system of slavery as practiced in America in the 18th and into the 19th Centuries. Much is made of the fact that many of the Framers did own slaves, and consequently benefitted economically from having them, but scant attention is paid to the fact that many did not own slaves. They spoke during the Convention, eloquently and passionately about the need to eradicate the system.

The second fact to consider was that 1787, no system of eliminating slavery proposed would have allowed for the ratification of the Constitution. Even a “five-fifth’s” counting of slaves would NOT have freed them from their bondage. Simply put, no compromise possible in 1787 would have both freed the slaves AND gained the ultimate goal of a unified national government.

Some might yet argue that such a deal was still a bargain with the devil, that the anti-slavery Framers compromised their principles in accepting such an arrangement. Few who make such an argument have logically considered the likely course of history had such a stand been made.

Likewise the Southern and slave states (not all of them were “Southern”) had a vested interest in forming a national unified government. The clear advantages of Union were preferable to going it alone in a world full of Kingdoms and Empires already eager to compete with or subdue any interloping nation.

In the end, there are complex levels to the 3/5th’s clause which are routinely ignored, both by those who want to use it to bludgeon any support for the Constitution and by those who want nothing more than “original intent.” Which I presume they would modify to mean “original intent, as amended.”

Let us consider three things about the 3/5th’s clause.

(1)    The clause does not use the word “slave”

Upon initial reading this fact escapes virtually every reader. We are all taught and told that the clause “means the slaves,” and clearly it would in 1787 define them. But instead it defines them as PERSONS, not property.

Granted, the effect at the time was to treat them as property, but even then, as preferential property, more important and as more valuable than all the houses in Philadelphia.[1] But the words defined them as “Persons” to be counted. Those are not the words of men who loved slavery.

(2)    The clause contains the word “and” in referring to direct taxes and Representation.

The two items are directly and intentionally linked. By making the apportionment of direct taxes (the taxes levied against the value of property) with the amount of Representation, the Framers accomplished two things very important to the American cause. First, there would be no sense of “taxation without representation.” Secondly, they used the 3/5th’s formula to discourage the further importation of slaves to America. Since more slaves – even at a sixty percent enumeration – meant more wealth, the direct tax burden on the people would increase.

It is a well known economic rule that taxation deincentivizes a given  activity. Since the Framers were well aware that most revenue for the new Government would come not from direct taxes but from levies and tariffs, the only logical reason to link representation and direct taxation with the 3/5th’s formula was to inherently discourage slavery.

(3)    That No Solution in 1787 Would have Ended Slavery at that point

The simple fact remains that the overarching goal, the reason the Framers had gathered in Philadelphia was not to end slavery, as much as many (if not most) wanted to do so. The purpose remained to form a national united government, and to craft that government in such a way that the People would accept it with their ratification. The elimination of slavery at that point in time, would have prevented the formation of that government which would eventually end slavery.[2]

The idea of a compromise is that both sides will give a little to get something. In our day, that “something” is usually a voter block’s approval or a .003% cut in the increase of Federal spending. But in 1787 it was far more important to focus on the overarching goal – the establishment of the government.

Ben Franklin remind the Convention that they had not been sent to Philadelphia to rigidly cling to their own individual ideas without any flexibility or consideration, that if the people of America (and in his view, Europe) were to accept the proposed Constitution, they themselves would have to work to the firm goal of establishing the government above all else. Any and all compromises were directed to the long term goal, not a temporary political or social point.

Virtually every man in that room understood that slavery would eventually have to be ended. The Constitution, as written in 1787, makes this clear and moreover makes it stunningly obvious that ONLY a unified National government would be the means to end the scourge once and for all. They all believed that it could be done peaceably and through the same spirit of compromise they took upon their shoulders. That would not eventually be the case, but even so, only the national government could end slavery. And it did.

Had there been no three-fifths clause (which by the by was the same compromise formula used in the Articles of Confederation, there was nothing new in it other than the tie to direct taxes and apportionment), there would have been no United States. At least not as history has given to us. How different the history of slavery might yet have been, had the ratification failed?

In seventy-six years, the American people, through explicit and authentic action, fulfilled the vision of those Framers who sought to limit and starve slavery out of existence.

The 13th Amendment made it official.

And while there is yet much to be considered in the 16th Amendment, it must be noted that it too had its role in this matter, as it eliminated the last vestige of the 3/5th’s compromise, opening up the doors to States to pursue new residents and their wealth coming into them.

The 3/5th’s compromise was never about lowering the dignity or the humanity of those in bondage. It was about finding a way through Union to free them once and for all. So that all men in America might freely enjoy the unalienable rights endowed to them by their Creator, life, liberty and the pursuit of happiness.

[1] “The Houses in this city (Philadelphia)… are worth more than all the wretched slaves which cover the swamps of South Carolina.” – Gouverneur Morris, as quoted in The Constitution – A Biography by Akhil Reed Amar, pg 95

[2] I am not a big believer in coincidences, but just for fun I ran the numbers and discovered that with slavery beginning in America in 1620 and ending in 1865, a ToTaL of 245 years of slavery existed in America. The year 1789 was one hundred and sixty nine years into that sad history, or roughly 68% – just over 3/5th’s of the way to freedom.


Posted on February 17, 2013, in 3/5th's Clause, Art 1 Sect 2, Dave and tagged , , . Bookmark the permalink. Leave a comment.

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