Three-Fifths: A Capitulation Revisited

Elbridge Gerry

Elbridge Gerry

Gentle Readers, I’ve previously written a mixed assessment of the three-fifth’s compromise. It did not work out as an extremely moderate antislavery measure, but I thought it had that potential when written. I have since learned from Paul Finkelman’s Slavery and the Founders that I have that wrong. On closer examination, it doesn’t even much deserve the label of compromise.

The story I believed works out like this: The South wanted to count 5/5 of its slaves for purposes of representation, but 0/5 of those same slaves toward any tax obligations that the national government levied on the states. The freer states objected, instead avowing just the opposite. The South deserved no reward for enslaving black Americans, but rather ought to undertake additional obligations because it had done so and the North would be called upon to suppress slave revolts should they come. The South would hardly have occasion to return the favor. Thus they split the difference at 3/5 for both and everyone goes home in possession of a settlement their white constituents can live with.

Finkelman looked at the dates and came out with something different. The Constitutional Convention debated the basis for representation at length, as we all learn in school. They eventually agree that representation should flow from population, rather than wealth or land values. Having decided that, they must grapple with who to count. Slaves constitute a substantial part of the Southern population, near half in some states. A great deal hangs on whether they get counted or ignored. The initial plan calls for a count based on free individuals, so no slaves at all.

As soon as this reaches the floor, South Carolina rises to object. Their delegation insists upon counting all the slaves along with the free inhabitants. They do not offer to undertake additional tax liability in exchange, but simply demand that their slave property count as people. The familiar ratio comes out of this, apparently in the hopes of getting ahead of both proslavery and antislavery opinion. In the North, delegates could sell the Constitution on how they prevented full slave representation. In the South, they could argue that they had secured most of what they wanted.

The vote over the ratio occasions little debate, save Elbridge Gerry’s objection:

Blacks are property, and are used to the southward as horses and cattle to the northward; and why should their representation be increased to the southward on account of the number of slaves, than horses or oxen to the north?

One must look at this in context. No slave state counted slaves for representation in their legislatures at the time. The southern delegates didn’t ask for something they already did at home, but a specific and additional security for their human property through disproportionate presence in the Congress, which then carries over into the Electoral College and elsewhere. Those extra votes prove instrumental in every sectional crisis resolved by legislation. As Finkelman puts it

Thus, with little debate, the Convention initially accepted the three-fifths clause as a basis for representation. The clause, giving the South an enormous political leverage in the nation, was accepted without any quid pro quo from the North. Application of the clause to taxation would not come until later in the Convention. Indeed, there was no reason in mid-June to believe it would ever be applied to taxation.

We have something different indeed from a compromise. Instead the framers did just as they and their descendants would spend the next eighty years doing: making capitulations to the South in order to help the section preserve slavery. Only later does the tax liability come into things and it direct taxation of the states falls out of favor right about the time Southerners achieve full control of the government. This restored the original 3/5 compromise: extra power for the South and slavery with nothing granted in exchange. The slave states got, as they usually did, license to put their thumb on the scale of law whilst demanding everyone else abide by the fair weight.

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