The three-fifths Clause

Akhil Reed Amar provides a "biography" of the U.S. Constitution in his book America's Constitution. The book is an honest look at the Constitution, praising the Founders for the visionary and revolutionary aspects of the document, along with biting criticism of those constitutional provisions that perpetuated the Union's addiction to slavery. There are three clauses that Amar lists under this latter category:

• the three-fifths clause


• the fugitive slave clause


• the slave-trade clause of Article I, Section 9, which restricts Congress's ability to outlaw the importation of slave into the United States until 1808.
  

Amar argues these three clauses worked together to make the Constitution a pro-slavery document. While the effects of the second two provisions are more obvious, the impact of the three-fifths clause was more insidious, catching many of the Framers themselves by surprise (at least those from the Northern States). Allowing the Southern States to count slaves as three-fifths of a person for purposes of representation in the House of Representatives gave the slavocracy more Representatives than their numbers warranted because the South did not allow slaves to vote. Not only were slave owners rewarded with greater representation as they increased their numbers of slaves, they were given a higher ratio in the electoral college because each State's representation in that body is the number of representatives in the House plus its two Senators. This meant the slave States had a greater weight in electing the President than their numbers of free people warranted. Four out of the first five Presidents were from slave states or slave state sympathizers, and this effected the nominations of judges to the federal bench. Hence, the atrocious, extraconstitutional decision of the Dred Scott case. So the three-fifths clause ended up embedding incentives for the expansion of the "peculiar institution" within the structure of the federal government itself.

This clause is generally defended as a necessary compromise between the North and South to enable all thirteen States to adopt the proposed Constitution, but Amar thinks otherwise:

The three-fifths clause offered one solution. But in 1787 there may have existed at least one other plausible solution that could have satisfied both slavery interests and anitslavery institutions. Imagine, for example, that Gouverneur Morris had proposed that slaves should count as four-fifths in the first decennial census in 1790, three-fifths in 1800, two-fifths in 1810, one-fifth in 1820, and zero-fifths thereafter. Such a sliding-scale approach would have addressed the South's concerns about is immediate prospects as a legislative minority while ensuring a gradual transition away from a rotten ratio, with plenty of time for slaveholders to make adjustments. Because most Southerners expected their region's population to grow much faster than the North's, they could have anticipated that their rising share of free citizens within the union would tend to offset the effect of the declining rate at which they could count slaves.

Such a sliding-scale compromise would not have ended slavery per se, but at least the South would not have been incentivized by the constitutional structure itself to increase its dependence on slavery. Many in the South were leaning towards abolition in the 1780s as it was, so the absence of enabling rewards for maintaining and expanding the inhumane practice would have gone a long way to its eventual peaceful extinction.

We must remember that as great as the Constitution of the Founding Fathers was, the seeds of our greatest conflict, the Civil War, were sown within its words. As with any human endeavor, it should not be made into an idol by an unthinking, uninformed citizenry.