Three-Fifths Clause: Why Its Taint Persists
A college president's blunder reminds us how a compromise over slavery still affects U.S. politics.
By partially counting slaves for the allocation of representation, the South gained a huge bonus in the House of Representatives, even though these states considered their slaves to be property that, as such, had no political voice and no legal rights. The value to the South of the three-fifths clause became clear in the seven decades after the Constitution was written. Southerners were able to block federal legislation hostile to slavery and get the House to pass numerous laws that protected slavery.
The three-fifths clause provided the extra proslavery representatives in the House to secure the passage of the Missouri Compromise of 1820 (bringing Missouri in as a slave state); the annexation in 1845 of Texas, which was described at the time as an "empire for slavery"; the passage of the Fugitive Slave Act of 1850; the law allowing slavery in Utah and New Mexico; and the passage of the Kansas-Nebraska Act in 1854 (which opened the Great Plains and Rocky Mountain territories to slavery). None of these laws could have been passed without the representatives created by counting slaves under the three-fifths clause.
An Electoral College Is Born
In addition, the three-fifths clause had a significant impact on presidential elections. At the Constitutional Convention, Madison said that a direct election of the president "by the people" would be the best system, but he rejected it because slaves could not vote, and thus the Southern states would be at a disadvantage. Instead, Madison came up with the Electoral College, which allocated presidential electors based on the number of members of Congress that each state had. This gave the South a bonus in the Electoral College.
In 1800, Thomas Jefferson, who owned close to 200 slaves at the time, would not have been elected president without the presidential electors created by counting slaves for representation. Even though slavery is long gone, the Electoral College, which allows someone to become president while losing the popular vote, continues to haunt our political system. It is a perverse legacy of slavery and the three-fifths clause in our Constitution.
The clause also provided that if taxes were ever levied on the states according to population, slaves would be counted on a three-fifths basis for determining how much taxes the states would pay. However, such taxes were never levied, and the Constitutional Convention delegates never expected them to be. As one delegate noted, it was "idle to suppose that the General Government can stretch its hand directly into the pockets of the people scattered over so vast a Country." Thus, the Southern states never had to pay a tax for their slaves, but they received a huge political benefit by counting them -- on a three-fifths basis -- for both representation in Congress and allocating presidential electors.
Some commentators mistakenly believe that the three-fifths clause "leans toward freedom" because by counting slaves for representation (even at a reduced rate), it acknowledged that the slaves were people and they should have some voice in the government. But no one believed that the slaves were political actors. On the contrary: The provision was a benefit to slave owners because it gave them greater political power based on their slaves. The more slaves a state had, the more votes in Congress it had.
As William Paterson, a delegate from New Jersey, noted, slaves are "property." He observed that they were not "free agents, have no personal liberty, no faculty of acquiring property, but on the contrary are themselves property, and like other property entirely at the will of the Master." Paterson pointedly asked, "Has a man in Virginia a number of votes in proportion to the number of his slaves?"
The three-fifths clause was just one of a number of provisions put into the Constitution to specifically protect slavery. But it provided the slave states with the political muscle to implement the other clauses and protect the master class of the South. Other proslavery provisions included an explicit protection for the slave trade, the promise to suppress domestic insurrections (including slave revolts) and the fugitive-slave clause. By requiring three-quarters of the states in order to ratify a constitutional amendment, the document gave the slave states a perpetual veto over any amendments.
It is no wonder that the great abolitionist William Lloyd Garrison considered the Constitution "a covenant with death, and an agreement in Hell."
Paul Finkelman, Ph.D., is the President William McKinley Distinguished Professor of Law and Public Policy at Albany Law School in New York, and the author of Slavery and the Founders: Race and Liberty in the Age of Jefferson.