THREE-FIFTHS CLAUSE

Article I, section 2, clause 3, of the United States Constitution originally provided that members of the house of representatives would be apportioned among the states on a formula that added to "free Persons" (including indentured servants but excluding untaxed Indians) "three fifths of all other Persons." The 1840 publication of james madison's notes of debates in the constitutional convention of 1787 revealed that the euphemism "all other Persons" referred to slaves.

The clause originated in an unsuccessful 1783 proposal in the Confederation Congress to amend the articles of confederation by changing the method of apportioning taxes among the states to a per capita basis that would include all free persons and "three-fifths of all other persons." At the Philadelphia convention, james wilson, a Pennsylvania delegate, resurrected the three-fifths formula as an amendment to the virginia plan and thereby touched off heated debates on counting slaves for apportionment purposes. The underlying conflict of interests between slave and free states provoked a great crisis of the convention. The deadlock was resolved by a complex formula that was part of the great compromise basing both representation and direct taxes on the three-fifths formula and, for good measure, making the direct-tax provisions of Article I, section 9, unamendable (Article V).

Madison in the federalist #54 defended the clause as an arbitrary but reasonable compromise that roughly reflected the anomalous legal status of a slave, a human for certain purposes and a chattel for others. The slave was "debased by servitude below the equal level of free inhabitants, which regards the slave as divested of two-fifths of the man." nathaniel gorham of Massachusetts had earlier agreed, accepting the clause as "pretty near the just proportion."

The three-fifths formula gave the slave states an additional political weight in Congress quite close to what they would have enjoyed if they had counted all slaves for purposes of apportionment. In 1811 this produced eighteen slave-state representatives more than the southern states would have had if slaves had been excluded altogether from apportionment. The clause therefore rankled New England and middle-state Federalists, who used the clause as a vehicle to voice their resentment at the Virginia Dynasty and the rising political power of the west. Reviving arguments of 1787 that if Virginia counted its slaves Massachusetts should be able to count its cattle, New Englanders complained with john quincy adams that "slave representation has governed the union." The hartford convention demanded in 1814 that the clause be abrogated.

Later debates during the abolition controversy renewed this dispute. Abolitionists either disingenuously tried to construe the clause as referring to persons other than slaves (indentured servants or aliens) or demanded that the clause be expunged. Defenders of slavery and Garrisonian abolitionists both cited the clause as an explicit assurance of the privileged constitutional status of that unique form of property, human chattels.

Though the abolitionist debates proved inconclusive, the clause bedeviled Republicans during Reconstruction. After the abolition of slavery, all blacks became "free Persons" and thus the congressional representation of the former Confederate states would be augmented by perhaps a dozen congressmen, endangering the Republicans' objectives for the war and Reconstruction. To forestall this, Republicans first temporarily excluded ten of the former seceded states from representation in Congress, then forced ratification of the fourteenth amendment, whose section 2 provides that representatives shall be apportioned simply on "the whole number of persons in each State," and that a state's representation should be reduced in proportion to its denial of the vote to male citizens over twenty-one years old, except for participation in rebellion or crime.

William M. Wiecek
(1986)

Bibliography

Ohline, Howard A. 1971 Republicanism and Slavery: Origins of the Three-Fifths Clause in the United States Constitution. William and Mary Quarterly 28:563–594.

Simpson, Albert F. 1941 The Political Significance of Slave Representation, 1787–1821. Journal of Southern History 7: 315–342.