What did the three-fifths clause really mean?
The three-fifths compromise of the constitution, which counted three-fifths of the slave population of a state for tax purposes and the division of representatives and presidential voters, was repealed over 160 years ago by the changes of the reconstruction. Yet it arouses strong political passions which, unfortunately, do not coincide with any knowledge of its origins, content or effects.
A few weeks ago, Justin Lafferty, a member of the Tennessee House of Representatives, stated that the three-fifths compromise was part of an abolitionist movement to end slavery. Other commentators have denounced the compromise, arguing instead that it was wrong for denigrating slaves as three-fifths of a person. Both perspectives illustrate the distortions that inevitably arise when history falls victim to our culture wars.
The three-fifths compromise reveals the intricacies of history and the care required to criticize the actions of our ancestors. Properly understood, it shows that historical events themselves depend on their own past and have unforeseen future consequences. And it also shows the importance of taking a counterfactual view of history: there is actually an argument that the three-fifths compromise ultimately helped end slavery, even if it had nothing to do with the abolitionist movement as the compromise was necessary for the creation of the union. History can ask normative questions, but only if it does not become a simple-minded moral game that assumes that even the best actors of the past have only acted under our present conditions.
The three-fifths clause and the constitutional basis
The clause provided:
Agents and direct taxes are apportioned among the various states that may be admitted to this union according to their respective numbers, determined by adding up the total number of free persons, including those who are bound to the service for a term of office of years . and without non-taxed Indians, three-fifths of all other persons
Note that the text of the clause itself is complex. On the one hand, it gave the southern states more representatives than if only free persons were counted, but it also made them responsible for more direct taxes, which are proportionate according to the representation. These states must take on both the bitter and the sweet. In addition, the clause deliberately avoids mentioning slavery. This omission increasingly angered the southern states, who dared to celebrate the institution when they drafted the Confederate Constitution.
Most importantly, understanding the display text eliminates any misunderstanding. It would have been worse for the opponents of slavery if the slaves had been fully included in the enumeration. A full census would have resulted in slave-holding states having more members of Congress and more presidential elections. The great evil at the time of the Constitution was slavery itself and the inextricably linked fact that slaves did not have the right to vote. The three-fifths clause added to this injustice by giving the southern states more power than if slaves had not been counted at all, but discounting the enslaved population decreased the power of these states compared to the full census.
The more difficult question is whether this perspective provides the right basis. Has the three-fifths compromise replaced an outcome that would have been worse for ending slavery? This question compels us to ponder how such an unusual fraction of three-fifths was included in the constitution.
The first time three-fifths appear was an attempt to change the articles of the Confederation that governed relations between states prior to the Constitution. States were struggling to raise money, and some officials, including James Madison, tried to give more authority to collect taxes in the Continental Congress. The three-fifths provision in this amendment formulated a distribution of taxes between the states. Slaves were an important source of wealth, and so it was felt that some of this productive force should be included in the proportion of taxable economic activity. The reason why slaves were not fully counted for tax purposes provides insight into one of the many evils of slavery: ownership is far more productive than slavery. The change was rejected for other reasons, but the principle of including a discounted portion remained available for future use.
The consequences of compromise underscore a historical reality that should be highlighted in any storyline: decisions have profound results that no one intended at the time.
At the Philadelphia Convention, one of the most important architects of the constitution, James Wilson of Pennsylvania, suggested that the share be used as the basis for the division. Charles Pinckney of South Carolina agreed to the proposal. Thus, its creation shows that it was a compromise with an opponent of slavery who joined a defender to propose him. Abolition was not a possible proposal if the Constitution was to be ratified. William Ewald, professor at the University of Pennsylvania Law School and biographer of Wilson, says: “The convention would have ended quickly if [Wilson] had pushed for abolition. “
The convention then rejected a proposal by the southern delegates to count the slaves in full for the purpose of division. This motion reveals a crux of the truth in the Tennessee representative’s position: the three-fifths proposal prevailed over one that would have given the southern states more power.
The compromise and its consequences
Wilson knew better than we did what business had to be done before the union could be formed. Thinking differently means lowering oneself to the past. The greatest statesmen of all time understand the constraints under which they operate. Unfortunately, there was no way the constitution could abolish slavery and create a union of thirteen states.
We can wonder whether, in principle, it would have been better not to form the union at all – not to make those compromises – by looking at future history counterfactually in a way that the founders couldn’t.
If the northern and southern states had not been able to forge a union due to a lack of compromise, the most likely alternative would have been two regional pacts that resembled the constitution, giving a central government greater powers than those of the articles of confederation. As Akhil Amar has explained, there was a geopolitical need for such a strengthening of the government. States needed a more effective constitutive mechanism to defend themselves against foreign powers.
But section compacts would have anchored slavery much longer. The south would not have been exposed to the abolitionist pressures of the north. And of course they would not have split from the larger union and started the civil war that ended slavery. Even more subtle was the constitution’s creation of a trade republic, a political climate that valued free labor – an ideal that was fundamentally in tension with slavery.
Another irony of the three-fifths clause is that it made Jefferson’s election possible – the so-called revolution of 1800. This consequence was well known at the time when the additional votes he received as a result of the three-fifths clause were Called “slave power” by the opponents of slavery in the north. John Adams would have triumphed if the southern states had not been able to count their enslaved populations even at discounted prices.
While I am by no means a Jefferson partisan, the general view is that his victory in 1800 was a victory for democracy over elitism, for freedom (for those who were not slaves – and it should be noted that the Abolition was not yet part of the national political debate) over the tyrannical Alien and Sedition Acts. It was likely also important to the Louisiana purchase that it was the first step in turning the United States into a continental power, both because Jefferson was a more flexible negotiator than Adams and because, as president, he was willing to raise constitutional concerns about the United States Dispelling federal agency to do so so that his party would have pushed hard if it had been in the opposition.
The unintended consequences of the three-fifths compromise have thus democratized the nation’s political culture and expanded its borders. This sequence of events underscores a historical reality that should be highlighted in any course of history: decisions have profound outcomes that no one intended at the time. Like the impact of the three-fifths compromise on slavery, it is further evidence of Kant’s dictum that “the crooked wood of mankind was never made straight.”
The danger of critical racial theory
Rep. Lafferty’s remarks were an attack on critical racial theory. Proponents of this theory took up his mistake and suggested that it demonstrate why a critical theory of race is needed. But the incident shows nothing of the kind. First, its critics have often understood that the three-fifths compromise was wrong without realizing that for an end to slavery it would have been worse to count the slaves completely. Second, while Lafferty did not correctly associate the clause with abolitionism, the three-fifths compromise was likely one of the compromises required to create the union, which likely ended slavery sooner than the plausible alternatives. A critical racial theory that views American history as a simple history of racial subordination would suppress such an analysis. Third, even the three-fifths compromise is far more complex in its implications than can be grasped by the racial prism. Critical racial theory, like Marxist theories of history, is terribly reductionist. Party lines in history always flatten the many dimensions of a past.
Rejecting history as a kind of agitprop does not mean that we must overturn all moral judgments. Assessing the historical events of our nation is necessary for the continuity of a community like ours that depends on a relationship with a common past. But these judgments also depend on resourceful sympathy with our ancestors and the ability to project ourselves into a world shaped by concepts and confusions that are not our own. If American history becomes a way of projecting our present polarities onto the past, it becomes a mirror of our present discontent and a source of disagreement.