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The three-fifths compromise: Rationalizing the irrational

February 12, 2013 by Donald Applestein Esq.


On this date in 1788, Federalist No. 54 was published, defending the portion of the Constitution that counted slaves as three-fifths of a person.


theconstitutionDuring the Constitutional Convention in 1787, as the delegates were considering how to allot representation for each state, the question arose: How to count the slave population?


The Southern states were fearful that they would be overwhelmed in the House by the “large” states—Massachusetts, Pennsylvania, and Virginia. To increase their representation, the Southern states wanted their large number of slaves to be included in the population count. Of course, the large states did not want to relinquish their numerical advantage in the House. Many delegates argued slaves should not be counted at all—after all, they said, slaves are property, not persons.


The result of the debate set forth in Article 1, Section 2 of the Constitution was a compromise, incorporating ideas of both property and person: Population would be calculated by adding “the whole Number of free persons, including those bound to Service for a Term of Years, and excluding Indians not taxed,” plus “three fifths of all other Persons.”


Those “other Persons,” of course, were slaves.


Link: Federalist No. 54


Federalist No. 54, which was likely authored by James Madison (it may also have been Alexander Hamilton), offers a sense of how mightily Madison struggled to justify the irrationality of the three-fifths rule and the Constitution’s approach to enslaved persons.


In truth, it was a political deal that many delegates felt was essential to preserving the Union.


Though Madison was a slaveholder, he felt deeply conflicted about slavery, as shown in much of his writings. But he was a strong advocate of the Constitution, so he felt obligated to defend even the three-fifths rule.


Because he wanted the other slaveholders to appreciate this dilemma, he wrote that his “Southern brethren” might say that “representation relates more to persons and taxation more immediately to property, and we join in the application of this distinction to the case of our slaves.”


He then lists some aspects of slaves that support the argument that they should be considered property: Their labor was compelled for a master, they were sellable from one master to another, and their liberty was restrained, much like animals, which under the law were considered property.


At the same time, Madison recognized that, under the law, slaves’ lives were protected against bodily harm, they could be punished for doing harm to others, they were not an irrational creature (such as a domesticated animal), and they were seen by the law as a member of society. Hence, slaves were also persons.


Madison concludes that because of these “mixed” characteristics, the Constitution should treat slaves as both persons and property. And since the proposed Constitution did so, the people should support the Constitution, or so he reasoned. Madison next sets forth the arguments that underpin the Constitution’s approach.


Madison opined that the approach involving both representation and taxation would support accurate census results. If a state were to attempt to “overcount” its population in order to increase its number of representatives, its taxes would also go up. On the other hand, if a state were to “undercount” its population in order to reduce its taxes, its number of representatives would also be reduced. As a result, the Constitution’s “balanced” approach, states would be an incentive to report accurate census counts.


Madison then turned to how the states have treated suffrage. He noted that in all states, it was accepted that some portions of the population had been denied the right to vote. Further, in none of the states having slaves did they have the right to vote. Given that, it was not novel, nor should it be objectionable, for slaves to be denied the right to vote under the federal Constitution.


Yet slaves would be included in the census upon which apportionment and taxes would be based—just as other segments of society have been denied voting privileges yet were counted in censuses (e.g. women). But because slaves are “debased by servitude below the level of free inhabitants,” their count as a person should be reduced. They settled on counting three-fifths, a figure that had been proposed earlier as an amendment to the Articles of Confederation in 1783.


Madison also noted that the structure of the federal government would protect both persons and property, so it is appropriate for Constitution to consider census counts for both representation and taxation. He argued that since one state did not have the ability to impact another state’s wealth, it should be acceptable to fix a state’s taxation based on a state’s wealth, or property. In his mind, this should address the Southern states’ concerns about being overwhelmed by the largely populated states.


Finally, Madison concludes that while the proposed system is not without fault, it is a balanced solution to the dilemma surrounding how slaves were to be counted.


However, he avoids the essential question: Was this solution fair to slaves, to the states, and to the country? It may not have been fair (which Madison suggested), but it was necessary—in order to obtain the support of the Southern states to make the Constitution a reality. Through the eyes of the 18th-century delegates it was both: necessary and fair.


Donald Applestein is a retired attorney and an experience guide in the National Constitution Center’s Public Programs Department.


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