February 24, 2011 – Article I, Section 02, Clause 3 of the United States Constitution – Guest Essayist: W. B. Allen, Havre de Grace, MD

Article 1, Section 2, Clause 3: Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.

Amendment 14, Section 2: Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

Amendment 26, Section1. The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age.

The so-called “three-fifths” clause of the U. S. Constitution is actually a provision for determining the number of representatives allotted to the several states in the Union. However, it provides the most frequently circulated charge against the Constitution. Simply put, for a long time almost everyone in America has misunderstood the three-fifths language in the Constitution. Here we speak directly and only to the origin of that language, in order to correct the record. We begin, however, by listing the Fourteenth Amendment and the Twenty-Sixth Amendment, because of their implications for the original text. Note that the Fourteenth Amendment supersedes the three-fifths clause, in particular directly tying the rule of representation to eligibility to participate in elections. That was not the case originally. Moreover, it ties eligibility to participate in elections (in relation to penalties for the denial of that privilege) to an age of majority listed as “twenty-one years of age.” However, the Twenty-Sixth Amendment establishes the age of eligibility for voting at “eighteen years of age” without having altered the language of the Fourteenth Amendment. Thus, once again the eligibility to vote has become disconnected from the rule of representation, as it was in the original constitution.

Now, regarding the three-fifths clause, the general account is that the Framers regarded black people as only three-fifths human (whatever that might mean). That, in turn, is supposed to prove that the Framers were bigots and that their opinion of black people was low indeed. The palpable surface of the framing documents reveals the truth. Consider what they did in fact mean, then judge how well the Framers confronted their moral dilemmas.

In April, 1783 (not 1787) in the Confederation Congress the three-fifths compromise emerged after six weeks of debate. An eighth article was proposed for the Articles of Confedration, apportioning expenses for the Confederation on the basis of land values as surveyed. There the discussion opened, only to reveal how difficult it was to assess land values 2

and, in the rude conditions of those times, to produce accurate surveys. Thus, they resorted to numbers instead, speaking of population as a rough approximation of wealth. Taking the numbers of people in the respective states, they hit upon the following language:

expenses shall be supplied by the several states in proportion to the whole number of white and other free inhabitants, of every age, sex, and condition, including those bound to servitude for a term of years, and three fifths of all other persons not comprehended in the foregoing description, except Indians not paying taxes in each state.

What, then, does three-fifths apply to? Slaves, carefully and legally defined. But re-read the opening clause, delimiting “the whole number of white and other free inhabitants.” To whom does that apply? Surely not whites only, nor only males, since “every age, sex, and condition” is further appended. Clearly, they aimed at every free human being, white and non-white. As is generally known, the only significant number of free non-whites in the United States in 1783 were American blacks (another 10,000 of whom were emancipated between 1776 and 1787). There were not in the United States of 1783, for example, any Asians. Thus, these legislators included American blacks among the free inhabitants; the following three-fifths clause applied not to blacks generically but rather to persons in the peculiar legal relation of slavery. Three-fifths of the number of slaves were counted, not in terms of their humanity but with respect to their legal status in the respective states.

The Confederation Congress fully affirmed the humanity of American blacks through the language of “white and other free inhabitants.” Was that recognition of humanity withdrawn when this same language was taken up again in 1787 in the Constitutional Convention? Here is the provision:

Representatives and direct taxes shall be apportioned among the several States which may be included within this Union, according to their respective numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.

The lapse of four years has brought changes. But what are the changes? On the surface the changes are primarily editorial, introducing economy and exactness of language. As any composition teacher would point out, the first thing to notice is the elimination of redundancy. Why should it be necessary to say the “whole number of white and other free inhabitants, of every age, sex, and condition,” when the “whole number of free persons” says the same thing? Further, “adding three fifths of all other persons” at the end is less awkward than the inclusion clause of 1783. Finally, the substitution of “Service” for “servitude” continues the liberal impulse of 1776. Moreover, this rule of representation says nothing about who gets the right to vote. Thus, 1787’s freedom language includes women and blacks; it does not exclude them.

W. B. Allen

Havre de Grace, MD

Posted in Analyzing the Constitution Essay Archives | 18 Comments »

18 Responses to “February 24, 2011 – Article 1, Section 2, Clause 3 of the United States Constitution – Guest Essayist: W. B. Allen, Havre de Grace, MD”

  1. Scott Miller says:

February 24, 2011 at 1:20 am

Wasn’t the three fifths clause also intended to prevent slave owning states from gaining an unfair advantage over free states by preventing them from including slaves in a count of a state’s population and giving the slave states permanent control of the House of Representatives?

This would go along with the “life, liberty, and pursuit of happiness clause of the Declaration of Independence which was originally written as “life, liberty, and property”, but changed to “life, liberty, and happiness” to prevent slave states from making the case that the word “property” must include slaves.

Between the two wouldn’t slavery have become constitutionally protected and recognized legal institution? It would have given the slave states permanent control of Congress because the slave state would have used control of Congress to insure that all future states admitted to the Union would have been slaves states, would it not?

  1. Joe Short says:

February 24, 2011 at 9:11 am

Why is the “indians not taxed” language included?

  1. Brad says:

February 24, 2011 at 12:22 pm

“including those bound to Service for a Term of Years”

Of whom does the Constitution refer? These individuals do not appear to be identified as slaves, but rather a specific legal class of free persons.

?prisoners…? debtors?…

  1. Toni says:

February 24, 2011 at 12:46 pm

I think the majority of those who misunderstand or misinterpret this whole three fifths thing either do it on purpose to use to their advantage, or simply have not done the research to find out for themselves.

The first category knowingly and willingly try to change what was in the hearts of our founding father’s. This frustrates me to no end. I believe for America to continue to be free we must keep in mind the hearts and minds of our founding fathers. We must take the time to know their morals and deeply held beliefs.

We must also keep in mind that they were not from our time. We cannot judge them based on who we are today. We must see them and understand them in their own time for who they were then and what our country was like then. I love this stuff.

We’re having our First Patriot’s club on March 4th and I’m so excited to teach these young Patriots the constitution and their founding father’s. I believe we must know them as well as the document to gain true understanding.

  1. Susan says:

February 24, 2011 at 1:08 pm

Brad, at the time of the writing I think there was still indentured servitude. This was a contracted period of servitude for the payment of transport and relocation to America.

  1. Ralph T. Howarth, Jr. says:

February 24, 2011 at 2:42 pm

@Joe Short: Indians not taxed are the Indians who ware not particularly US Citizens. The Indians were and are a protectorate of the federal government where the Indians were treated as a foreign country. It is interesting to note that during the Treaty of Paris meetings led by Benjamin Franklin that Franklin secured the welfare of the American Indians from the European powers citing that they were a people “not able to defend themselves.” The Treaty of Paris then kept Europe out of the affairs of the American Indian. Had this not been done; the perpetual European wars may have persisted to intermeddle with the American Indian affairs. As was then, and in the years afterward, there were intents among the British Crown to keep arming the American Indians and incite war with the American “rebels”.

@Brad: bound to Service for a Term of Years are those of indentured servants primarily from Europe. These are people who either contracted their fare of transport to the states or were in debt already and arrangements were made with the shipping companies conveying goods of trade to the Americas. Many were debtors who were subject to the ill-gotten practice of being jailed for their debt where they could not work off their debt and so in a somewhat not-by-choice fashion were made indentured servants to the shipping companies. The shipping companies then would sell the contract of labor in the Americas to bidders. The indentured servants typically served a term of no more than seven years under the Judeo-Christian ideal of a seven year’s release.

  1. Brad says:

February 24, 2011 at 4:23 pm

@Susan and Ralph: Thank you for the clarification. This dialogue is wonderful.

  1. Donna Hardeman says:

February 24, 2011 at 6:25 pm

You guys should look at David Barton’s explanation on utube. Fabulous.He explains how Frederick Douglas realized the 3/5 clause was an anti-slavery clause.Talks about Georgia, NC & SC wanting to count all their slaves so they could have more votes.Northern states came back saying – you want to count your “property” we’ll count our horses and goats!(All from the Constitutional Convention notes). The neat thing he points out is that the 3/5 clause actually applied to the population of slaves – not each individually meaning that a state would have to have 50,000 slaves to enable them to get one representative. That clause is so cool because it’s true – everyone misunderstands it – and it’s fun to set them straight!!

  1. Barb Zakszewski says:

February 24, 2011 at 11:36 pm

Interesting, so women and blacks had the right to vote since the beginning?? Yet were denied that right because of incorrect readings of the original Article within the Constitution? Am I understanding this correctly? that is amazing, if it’s true!! I had to re-read the explanation regarding the 3/5 clause several times, but it does make sense now.

  1. Ralph T. Howarth, Jr. says:

February 25, 2011 at 12:25 am

@Barb: That is correct; but the right to vote for women in particular was not uniform among the states. If you think about it; in order for their to be a women’s suffrage amendment to the U.S. Constitution there had to be 3/4ths states that ratified the amendement. Do you think that all of a sudden 3/4ths the states went from seeing the error of their ways to suddenly advocating a woman’s right to vote?

In colonial times, for example, Pennsylvania voting rights were orchestrated around property ownership to land holders. Men were the primary land-owners of estates; but if a woman’s husband passed away, then the property fell to her and she then had the right to vote in his stead. Later, states like Idaho made law that give women the right to vote without any such land-holding impediments and gave an cablanche right to vote for women. They did this to encourage women to risk pioneering the unclaimed lands mostly populated by men and populate the territory.

  1. Ralph T. Howarth, Jr. says:

February 25, 2011 at 5:27 am

The 3/5ths clause is a penchant play on political correctness.

Michele Backmann was right. The founders did wrestle with the slavery issue.

During the constitutional convention [or ConCon] debates August 21, 22, 1787 the premise was that each state was an independent nation and the auspices of the convention was not much more than a trade union. When it came to the issue on slavery there certainly were a variety of views and it was recommended to ban the importation of slavery and/or abolish slavery; but it was passed over to the states as a state matter as the purpose and scope of the convention was not that of religion, morality, or humanity. The original submitted draft of the Constitution brought to the ConCon 1787 actually forbade outright the blocking of the slave trade and forbade imposing a tax provision on the importation of slaves, so it appears. The draft evidently was revised to instead postpone the blocking of the slave trade and allowed a tax on the trade instead of none. So the end result of the draft constitution going into the ConCon was a marginally tougher instrument on slavery that what was proposed.

As James Madison made record in his ConCon notes, Mr. Rutledge noted: “Interest alone is the governing principal with nations. The true question at hand is whether the Southern States shall or shall not be parties to the Union.” Mr. Ellsworth noted: “The morality or wisdom of slavery are considerations belonging to the states themselves.” And, “[t]he old confederation had not meddled on this point, and he did not see…bringing it within the policy of the new one…” Mr. Sherman also noted that the slavery issue, being the purview of the several States, was already addressed by the abolition movement “and that the good sense of the several States would probably by degrees compleat [the abolition].”

So what we have on the table was the making of a stronger union versus a very loose, virtual one. The confederate congress really had no power to speak of and figuratively had to have permission of ten states to sneeze, and then had to have permission of ten states again to get a handkerchief. Yet, if the abolition of slavery was promulgated in the Constitution, then the southern states would not have ratified it. Hence, the 3/5ths compromise was retained in order to deter the southern states from not ratifying; and by implication, leaving the union. And abolition was allowed passively by the Constitution, by leaving with the states their own accord to abolish slavery as some statesmen like Mr. Sherman thought the abolitionist movement was already showing much success in that direction. Mr. Pickney also concurred thinking the Southern States will eventually block the importation of slaves of their own volition.

A comparitive could be if the USA, Canada, and Mexico took NAFTA and upgraded to a federal union while cartels still exist.

  1. Susan says:

February 25, 2011 at 9:51 am

I know that the women of New Jersey voted in elections up until about 1800 when sufferage was rescinded.

  1. Shelby Seymore says:

February 25, 2011 at 11:56 am

Personally, I am so annoyed with the excuse or the complaint, “The founding fathers only saw blacks as three fifths of a person.” No. Stop. Grow up. Fredrick Douglas figured this out. The founders put the three fifths clause into the Constitution so that the South wouldn’t have so much power. If slaves were counted as a whole person the founders knew they’d never get rid of slavery. It was a way to undermine slavery, not keep it going. Do your homework.

  1. yguy says:

February 25, 2011 at 12:16 pm

Interesting, so women and blacks had the right to vote since the beginning?? Yet were denied that right because of incorrect readings of the original Article within the Constitution? Am I understanding this correctly?

I think not. I see nothing in A1S2C3 that addresses suffrage, which was, like citizenship, left to the states to deal with originally.

  1. Ron Meier says:

February 25, 2011 at 2:03 pm

My take from what I read above, ignoring the “did they or didn’t they” this or that, is that the founders knew they couldn’t get rid of slavery in the new Constitution because the southern states would then not likely approve the Constitution. They figured that the growing abolition movement would eventually take care of the problem in the individual states, without federal involvement, so let’s not upset the cart and let’s get the Constitution we need into law now so the greater benefits would accrue to the weak, but growing nation. Let it be a state problem that will resolve itself. Unfortunately, they were not correct in this assessment, and the Civil War erupted 80 years later. It’s like life; you give it your best shot with your most pragmatic decision based on the greater good, and pray that you are making the optimal choice with respect to the things over which you have little or no control.

  1. Shannon_Atlanta says:

February 25, 2011 at 6:49 pm

Great dialogue!! Learning alot here.

  1. Ralph T. Howarth, Jr. says:

February 25, 2011 at 9:23 pm

Another tid-bit people don’t know is not only were the several states under the AoC considered separate countries, and that the Crown of England issued a treaty for each and every colony than that of the gamut moniker of “these United States of America”, is that Quebec was invited into the union twice. Quebec was simply viewed as another colony of British pesuasion…though it was also under control of the French for a time. Quebec was invited first under the AoC and invited a second time during the ratification of the US Constitution. Quebec choose not to but may very well have been another state in the US. To date, the border between the US and Canada has been arguably the most peaceful border between two countries in the history of the world. In WW1&2, and much of the NATO alliances thereafter, Canada has continued to be an ally. How Americans and Canadians managed border disputes is remarkable.

  1. Janine Turner says:

February 28, 2011 at 12:39 pm

Thank you, Mr. Allen for your enlightening essay! It is truly informative and powerful in it’s honest representation of what is to be interpreted from both the Articles of Confederation and the Constitution on this subject. Your essay is a fabulous reference for those who choose to study our founding documents. Firstly, I am grateful that our founding fathers did not use land values to account for representation and instead used populace. Secondly, I am grateful for your interpretation and clarification of the 3/5 clause. Thirdly, I am eternally grateful that our founding fathers had the insight to leave to their posterity the right to amend the Constitution. They knew changes were going to be needed.

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