09 10

17 October 2009

The Three-Fifths Clause

"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 th ewhole 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." -Article I, US Constitution

The "all other Persons" means slaves. Three out of every five slaves counted toward how many Representatives slave states had. It was the only type of property that got special consideration in the Constitution; everything else happened based on either numbers of States or numbers of (free) people. Thus, the more slaves a state had, the more seats in Congress it had, forever. The Constitution included no provision for ending the extra seats. (Remember, this is before the Civil War and emancipation.)

In my book, America's Constitution: A Biography, Mr. Amar says, "Modern laypersons and law students confronting the words 'three fifths' for the first time often suffer from a similar confusion [as the founding debaters], recoiling at the idea of valuing slaves at less than 100 percent. This initial reaction misses the point. The clause did not aim to apportion how much a slave was a person as opposed to a chattel. Had this been the question, the anti-slavery answer in the 1780s would have been to value slaves fully: five-fifths. Yet in the context of House apportionment, a five-fifths formula would not have freed a single slave, or endowed any bondsman with more rights of personhood against his master or the world. Five-fifths would simply have given slave states even more voting power vis-a-vis free states. The precise Article I question concerned Congress's proportions, not the slaves'. The principled anti-slavery answer to this question in 1787 was that for legislative apportionment purposes, slaves should be valued not at five-fifths, or even three-fifths, but rather zero-fifths." (Page 89)

So the House was had exaggerated representation for slave states. It was pretty significant too: the South started out with 13 extra seats. Though Massachusetts had more free people, Virginia got 5 more seats because of her slaves. It was a gift that kept on giving: when the slave states redrew their House district lines, they skewed them within the state so that the plantation areas got more votes than areas with fewer slaves. Because the electoral college was created based on Congressional numbers: more seats in Congress=more votes in the college, the tilt toward slavery affected the Presidency. Presidents, in turn, nominated cabinets, the Supreme Court, and lower judges. And as state legislatures began to apportion themselves using the 3/5 idea, slave areas got more power in the State governments as well. At the time State legislatures, not the people, elected the Senators. So the whole government was leaning in a pro-slavery sort of way. It would have taken much more than simple emancipation to unseat the various incumbents and judges that had their jobs because of this pro-slavery lean. I'd always kind of wondered: if the Civil War was so long ago, why is it that it took so long to get to the Civil Rights Movement? It would appear that at least part of the answer was that a pro-slavery/anti-black bias had become institutionalized in the government.

No comments:


Blog Widget by LinkWithin