Three-Fifths Clause: Why Its Taint Persists


(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.

But in the House of Representatives, the framers provided for representation based on population. The great quandary was how to determine a state's population for allocating representation in Congress. If only free people were counted, then the Northern states would have dominated the Congress. In 1790, Virginia, for example, had a total population of more than 690,000 people, but 288,000 of them were slaves. Thus, the state's free population was only about 404,000.


On the other hand, Pennsylvania had a total population of 434,000, and all but 4,000 of these people were free. Pennsylvania was in the process of ending slavery, and by 1790 a majority of that state's black population was free, and those free blacks could vote on the same basis as free whites. Thus, if representation in Congress were based only on the free population, then Pennsylvania would be able to outvote Virginia. If slaves were counted in allocating representation, then Virginia would be the most powerful state in the nation, with the largest congressional delegation.

Southerners at the convention insisted that their slaves be counted when allocating representation in Congress, even though everyone understood that slaves were considered property and had no political rights. Throughout the convention, the slave owners also made it clear that they did not expect an end to slavery in their states. Charles Pinckney of South Carolina, citing ancient Rome and Greece, declared that slavery was "justified by the example of all the world." His cousin, Gen. Charles Cotesworth Pinckney, told the convention that "South Carolina and Georgia cannot do without slaves."


The Southerners were adamant: Slaves were property, Southerners would continue to import more slaves from Africa, and at the same time, those slaves should be added to the number of free people when representation in Congress was being allocated.

James Wilson of Pennsylvania, who eventually supported the clause, understood the inconsistencies of the Southern demands. He "did not well see on what principle the admission of blacks in the proportion of three fifths could be explained." He asked, if slaves were citizens, "why are they not admitted on an equality with White Citizens?" But if slaves were "admitted as property," it was reasonable to ask, "Then why is not other property admitted into the computation?"


Elbridge Gerry, a delegate from Massachusetts, used the same logic to oppose the clause. Gerry argued that slaves "are property, and are used to the southward as horses and cattle [are] to the northward." He sarcastically wondered "why should their representation be increased to the southward on account of the number of slaves," when the convention was not willing to allocate representation in the Northern states on the basis of their "horses or oxen"? Gerry argued that if slaves were counted for representation, this clause would degrade freemen in the North by equating them with slaves. He wondered, "Are we to enter into a Compact with Slaves?" At the end of the convention, Gerry would refuse to sign the Constitution because he was so outraged by the three-fifths clause.

A Foothold for Slavery

Thus, the debate over representation was about political power — but it was also about morality. Many Northerners objected to the idea of counting slaves for representation in a nation that was designed to provide liberty for its citizens. Gouverneur Morris, a New Yorker who represented Pennsylvania at the Constitutional Convention, noted that if slaves were counted for representation, "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."


Morris and a few other vocal opponents of slavery were on the losing end of this debate. All the Southerners insisted that the allocation of representation in Congress had to take slaves into consideration. Most Northern delegates acquiesced on this point because they were afraid that otherwise, the Southern states would not support the new Constitution.

The solution was the three-fifths clause.

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.