Three-Fifths Clause: Why Its Taint Persists

A college president's blunder reminds us how a compromise over slavery still affects U.S. politics.


(The Root) — President James Wagner of Emory University recently asserted that the three-fifths clause of the Constitution is a good example of how people with differing political views can find common ground. He was referring to the provision in the U.S. Constitution, written in 1787, that counts each enslaved person as three-fifths of a person in order to determine state representation in Congress.

Wagner’s support of compromise is admirable; his historical analogy was not. It is perhaps not his fault, since he was responding to a scholarly presentation at his university. But Wagner’s unfortunate use of the three-fifths clause has the virtue of bringing the issue of slavery back into the public debate. It is useful for Americans to contemplate how our slaveholding past tainted our Constitution.

The three-fifths clause — frequently called the three-fifths compromise — was actually not much of a compromise at all. The provision was a huge victory for slavery and gave nothing to those who favored freedom.

The Power of a Fraction

The three-fifths clause is perhaps the most misunderstood provision of the U.S. Constitution. The clause provides that representation in Congress will be based on “the whole Number of free Persons” and “three fifths of all other Persons.” The “other Persons” were slaves. Despite popular understandings, this provision did not declare that African Americans were three-fifths of a person. Rather, the provision declared that the slave states would get extra representation in Congress for their slaves, even though those states treated slaves purely as property.  

Thus, this was a provision that was not directly about race but about status and the allocation of political power. Free blacks were counted in exactly the same way as whites. The clause did not say that a slave was three-fifths of a person. The clause said nothing about free blacks, who were treated by the clause exactly as free whites were.

Rather, the clause provided a mathematical formula that allowed for the allocation of representatives in Congress that factored in the slave population. No slaves could vote in the country (although free blacks could vote in a number of states), and the clause did not provide a voice for slaves. This was about the distribution of political power among the states.

A Formula for Influence

The origin of the clause illustrates the complexity of the issue. Under the Articles of Confederation, each state had a single vote in the national Congress. In 1787, on the eve of the Constitutional Convention, this meant that Virginia, with about 690,000 people, and Pennsylvania, with about 430,000 people, had the same number of votes in Congress as Delaware, with a population under 60,000, and Rhode Island, with a population under 65,000. One of the goals of James Madison and the other framers was to replace this utterly undemocratic system of representation with representation in a new Congress based on population.

Eventually the Constitutional Convention would only partially achieve this admirable goal. The Senate continued to give the states equal representation, even though some states were dramatically larger than others. Thus, today California’s population is 70 times larger than Wyoming’s, but they have the same number of votes in the Senate. Currently, California’s two senators represent more than 37 million people, while Wyoming’s represent fewer than 540,000 people.