During the course of my Intro to American Government class we dedicate several days to studying the origins of the Constitution. During this period we spend some time discussing the debate on representation. This debate is the fundamental question of how both individuals and states should be represented and present their wants and needs to the soon-to-be-formed federal government. This gets into the Virginia Plan and the New Jersey Plan and all of the other elements you remember from AP US History but, while interesting, it isn’t the most engaging part of this discussion. What the most interesting part of this debate is the question of how the federal government should treat the slaves. In what way, if any, should slaves be represented in the newly formed federal government?
The end result of this is Article 1, Section 2, Paragraph 3 of the Constitution or what we have now come to call the 3/5th Compromise, which I have reprinted here in its entirety.
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 the whole 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.
There are several interesting things about this. The first is that we are dealing with both Representatives and direct Taxes, or the taxes that could be drawn directly from the states themselves, not from the individual inhabitants of the states. The issue with taxation is not my concern here because it quickly becomes irrelevant. Also notice that for the purpose of representation we count free individuals and indentured servants, but not untaxed Native Americans. The wording is interesting as well; the specific and deliberate sidestepping around the word “slave” shows an implicit concern with slavery that comes up in both the debate that leads to this and the well known American history of slavery.
So when we discuss this issue in class we briefly discuss the debate that took place when developing this phrase. However, I haven't had the opportunity to take an in depth look into the specifics of the conversation that the Framers had. This post is the result of that investigation.
In order to look at this debate I turned to the only real respectable source when looking at the Constitutional debate: James Madison’s Notes of Debates in the Federal Convention of 1787. James Madison took it upon himself to develop a comprehensive coverage of the formation of the new Constitution and compiled an impressive amount of notes, speeches and the records of votes. He spent the later years of his life organizing them into a cohesive and comprehensive account of the formation of the new Constitution. It is through this book that we know anything about the Constitutional debates and are able to understand what the concerns of the Framers were.
Before we get into the specific details of this debate, we need to take a look at our specific cast of characters. There were a total of 55 individuals who were selected and chose to attend the convention. However not all of them spoke at any length and we see that several individuals had a tendency to monopolize the debate, especially if they had a vested interest in the topic being discussed. The debate on the representation of slaves is no different.
Our cast of characters includes
Gouverneur Morris: Pennsylvania
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A young man from a wealthy New York family, Morris was wary of a pure democratic state worrying that such a government might devolve into mob rule. He is initially quite diplomatic on the issue of slavery but eventually tips his hand, going on extended speech on the moral problems of slavery.
Charles Pinkney: South Carolina
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One of the youngest members of the Convention, and related to the confusingly named Charles Cotesworth Pinkney who was also present. He was outspokenly for the equal representation of slaves.
Pierce Butler: South Carolina
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An interesting case, the younger son of an Irish nobleman, he first came to America as a member of the British Army. He then married a South Carolinian women and took up the revolutionary cause.
William Patterson: New Jersey
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Another non-native American, born in Ireland but emigrated with his family at a young age. Another Revolutionary war patriot he was elected to the Constitutional convention where he championed the rights of the smaller states.
James Madison: Virginia
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A lifelong Virginian, Madison was perhaps the most important individual present at the Constitutional Convention despite the presence of towering figures like George Washington and Ben Franklin. It is through his efforts that we know anything of real accurate substance about the convention and it was through his writings with Alexander Hamilton and John Jay that the case for the Constitution was made. He had a conflicted opinion about slavery, favoring the establishment of strong government over any moralistic principle.
Edmund Randolph: Virginia
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Born in Virginia, he split with his father when the Revolutionary war broke out, his father choosing to return to England and Randolph choosing to take up the revolutionary mantle, eventually becoming an aid-de-camp to Washington.
Rufus King: Massachusetts
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Born in what is now Maine (but then a part of Massachusetts) King like the others began as a revolutionary, but his skill at oratory set him apart and made him a valuable addition to the Constitutional Convention.
James Wilson: Pennsylvania
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Born in Scotland, but moved to Pennsylvania after his formal education to teach at what would become the University of Pennsylvania. Wilson was, with Madison, one of the most ardent revolutionaries of this group of founders. He published some of the first writings criticizing the British Parliament and argued for independence in the Continental Congress. He was a prominent legal scholar and was appointed to the Supreme Court by Washington.
The question of the representational qualities of slaves begins when Mr. Wilson proposed the following statement in regards the the collection of taxes and proper representation:
In proportion to the whole number of white and other free citizens and inhabitants of every age, sex and condition including those bound to servitude for a term of years and three-fifths of all other persons not comprehended in the foregoing description except Indians not paying taxes in each state”
Mr. Wilson proposes this as a solution to the problem of taxation that existed under the Articles of Confederation. The specific number of 3/5ths comes from an earlier proposed amendment to the Articles of Confederation which stated that all expenditures in wartime, or for the common defense would be taken from the states based on their population, including 3/5ths of the slaves. This amendment was postponed and did not become a part of the Articles of Confederation, however Mr. Wilson must have thought it important enough to propose its inclusion in the Constitution. This proposal was lightly objected to, there was some question of property in the South being worth more than property in the North, but the motion was quickly passed and this verbiage was added to the initial draft, also called the Virginia Plan.
At this point, the convention moved on and discussed other things for several days but Madison later decided that this was worth revisiting. He acutely observes that the specific divide between the states was not Big vs Small as the other members were arguing, but instead North vs. South. If this was the true divide in the nation the North would gain a representational advantage in the Senate because there were more Northern states and the South would gain an advantage in the House of Representatives because of their slaves. This is something he wanted to avoid but he did not come up with a good solution to this problem.
Mr. Pinkney continues this thought later; remarking that he would prefer that slaves or Blacks be counted equally but that he would accept a compromise if necessary.
Mr. Morris rebutts Madison’s point; he believes the true problem is in large states vs small ones and brings up an interesting solution to the problem of smaller states oppressing larger ones. He suggests getting rid of all of the states and drawing new boundaries so that all of the states are the same size. This statement comes off as a bit facetious and Morris even admits that this would not be practical but it would be the best solution.
Mr. Patterson essentially ignores Morris’ position and continues with his own argument. He says that the best way to determine representation in the legislature would be to combine the population numbers with the amount of wealth created in each state. The thought that in wealth in some way needed to be accounted for when determining representation was a common one. In fact, some of the arguments in favor of counting slaves for representation was because they contributed wealth to the nation. Patterson is in favor of counting wealth but not counting slaves. He argues “has a man in Virginia a number of votes in proportion to his slaves?” Continuing the idea that slates are not represented in their individual states, he asks why should they be represented in the general government? Patterson here also makes the first moral claim against slavery, pointing out that the 3/5ths compromise encourages the slave trade, as there is a political benefit to having slaves. He also is aware of, and points out, the underlying tension in the wording of the compromise. The Convention seems to be ashamed of the word “slave” using instead the phrase “all other persons” when this could only refer to the slaves.
Madison offers a bit of a reply to Patterson saying that the purpose of the second branch of government (the legislature) is to protect property so it should include the representation of slaves, and this representation should include the whole number of slaves, not a proportion.
The next day Mr. King makes the argument that now the less populated Southern states now have more representation than the larger Northern states. This has two consequences for King, it is good to unite the Southern states but it is bad to alienate the Northern states. We can see King here developing the idea that Madison initially proposed; the true divide between the states is the geographic North/South divide and not the population-based Large/Small divide.
A bit later there is a proposition introduced that proposed the equal representation of slaves. Mr. Butler and Mr. Pinkney announce their support for the proposition. Butler contends that the labor of a slave is equal to the labor of a freeman and therefore they should have equal representation.
Mr. Mason does not agree with Butler’s comments. He claims that slaves are useful, but not equal.
Butler’s proposal is voted down.
The vote the turns to the 3/5ths proportion.
Mr. King argues for no representation at all for slaves. He says that any representation for slaves would make states that do not have slaves angry.
Mr. Wilson goes even further than King. He does not understand why slaves get any representation at all. He asks, are they citizens? Are the equal citizens? Are they property? If they are indeed property then why do we not use other property to determine representation?
Mr. Morris says that this question requires him to either do an injustice to the South or an injustice to human nature. He chooses the South. He does not want to give encouragement to the slave trade and this would happen if you give slaves representation.
The measure does not pass.
Morris then introduces the idea of varying representation by both wealth and the number of states. Mr. Butler agrees and again argues for full representation of slaves, twisting Morris’ original point.
This discussion then quickly goes off track and turns to direct or indirect taxes.
Pinkney later motions that Blacks should be represented equally.
This is voted down.
However the question of 3/5ths in relation to direct taxation, not representation is approved.
Mr. Randolph now brings up the idea that the number of representatives could change at a point in the future. Morris sees an inconsistency. If slaves are viewed as inhabitants and you change representatives in terms of inhabitants then slaves should be fully counted. If slaves are property then the inconsistency of basing representation on wealth arises again.
Madison then brings up the issue of how to elect the Executive, or President, and the role that the representation of slaves would play into that. Madison says that we don’t appoint the President from the Legislature, we elect him and the office is designed in such a way that the people would know the president. Therefore having electors would solve the problem of different suffrages in the North and South. Slaves could have no influence on direct elections since they cannot directly vote, but the could have an influence in the Electoral College as the number of votes would be determined by the number of representatives.
This issue then gets tabled for a while and only comes up again when they are discussing the adoption of the Connecticut Compromise. Mr. King wonders what giving slaves representation will do. The Northern states don’t like it. He is also worried about the powers of the national government towards the slaves. It cannot stop the importation of slaves, it cannot even tax the exportation of slaves. He argues that the federal government should at least be able to tax the exportation of goods that are created by the slaves. His justification for this is rooted in national defense. If the Northern states are aid in the defense of the South, then the South should pay into this defense in the form of national taxes.
At this point Morris has had enough and goes on a long rambling diatribe against the moral ills of slavery, the only real emotional appeal to the abolition of slavery in the convention. He calls it a moral evil and cannot understand how the South would want to continue in this practice.
Despite this, the 3/5ths compromise is approved and makes its way into the final draft of the Constitution.