The meaning of the Three-Fifths Clause

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32 Responses

  1. Joe says:

    “Under state slave laws, slaves were not treated as “three-fifths of a person” with respect to rights or protections, because they were not treated as people at all.”

    Slaves were for some purposes treated “as people,” including when accused of crimes. To take a random discussion:

    “Criminal trials for enslaved blacks were often held in a local tavern or county store.”

    http://www.slaveryinamerica.org/geography/slave_laws_SC.htm

    Since a dog is not “tried” in such a way, slaves are in some ways treated “as people” even if they were also treated “as property” in other ways.

  2. I hope it’s clear that I’m not saying that the Constitution did not support a regime of vast racial inequality. It’s very clear that the Constitution did in fact support this regime.

    But this was largely done indirectly — for instance, the Constitution empowered the South (through the Three-Fifths Clause and the bicameral structure). And its official silence on the “peculiar institution” meant that Southern states were free to continue with slavery.

    The Constitution was a profoundly racist document. Garrison correctly describes it as “a covenant with death, and an agreement with hell.” But its racism largely lies in its silence and acquiescence to then-existing norms.

    (This is not to downplay the Importation Clause or especially the Fugitive Slave Clause. But as a whole, Constitutional text itself was mostly silent — and that is the problem.)

  3. That’s correct, Joe. I meant that slaves generally were not given the rights of people. However, slave laws were terribly inconsistent about exactly how to classify slaves (which reflected the deep inconsistencies in the legal regime). Sometimes slaves were considered people for some purposes; but they were not given people’s rights and protections.

  4. Joe says:

    “not given people’s rights and protections”

    It is granted and clear that slaves were not given equal rights, just as women and children were not given equal rights. But, they were given SOME rights and protections.

    So, a slave might get a much harsher punishment and be subject to a more summary trial before receiving it. But, they still got some sort of trial. The punishment was pursuant to the law. A slave had to be found guilty and then the state could have set certain limited punishments. The slave could not simply be punished or given any punishment. This to me is a type of “protection.”

  5. Kent says:

    Would it be overstating the significance of the Clause to say that if slaves would have been counted as a “whole person” from the beginning the resulting legislative power increase in the South would have caused slavery to continue longer than it did?

  6. Joe,

    Let me rephrase.

    The Bill of Rights guaranteed a whole set of rights to people. Jury trial, speech and assembly, and so forth.

    However, these rights were not guaranteed to slaves. They could be removed by state statute or court decision, and often were. States intermittently gave some protections to slaves. But they always had the option of doing otherwise. And they often did. For instance, the Fugitive Slave Act removed rights to jury trial and to testify on one’s own behalf. State courts and legislatures went further. The South Carolina court in State v. Maner stated simply that slaves were not protected by common law criminal statutes — that is, it was legally impossible to assault a slave. (!) (See http://books.google.com/books?id=VmPWCKh0hZAC&lpg=PA480&ots=zx1Y1A-CZC&dq=state%20v%20maner&pg=PA185#v=onepage&q&f=false ).

  7. That’s probably correct, Kent.

  8. Bruce Boyden says:

    “Rather, Blacks’ subordinated legal status was created by a variety of state statutes.” I haven’t confirmed this, but the contemporary argument of several northern abolitionists was that there were no *statutes* in southern states to support slavery either; and they also denied that slavery was permitted under common law property law. They therefore tried to argue in cases concerning remitting captured alleged fugitive slaves that they were not held to service under any law whatsoever.

  9. I’d suggest it’s also worth noting this was the original compromised “compromise”, i.e. of finding a middle ground between two positions regardless of their specific moral merits, for the sake of deal-cutting.

  10. Brett Bellmore says:

    “The Constitution was a profoundly racist document.”

    I’ll grant that the Constitution was profoundly flawed, but I’m having a bit of trouble figuring out how a document which didn’t mention race at all (Until the ratification of the 14th amendment.) could be profoundly racist. There were racist laws aplenty, but the Constitution itself was totally silent on the subject of race.

    I think this accusation goes to far in legitimizing the legal outrages of the Dred Scot Court. There never was any Constitutional basis for treating blacks differently than whites.

  11. Shag from Brookline says:

    Perhaps Brett would change his cavalier view if he were to read, and understand, Sandy Levinson’s “Compromise and Constitutionalism” that he presented at Pepperdine in delivering his Brandeis Lecture, as well as the comments of other academics thereon, including in particular Paul Finkelman’s “The Cost of Compromise and the Covenant with Death,” 38 Pepp. L. Rev. 821 (Levinson) and 845 (Finkelman) 2010-2011. The silence in the Constitution was deafening.

    Assuming the accuracy of this by Brett: “There never was any Constitutional basis for treating blacks differently than whites.” surely there was a tad of de facto racism supported by the Supreme Court in its role as guardian of the Constitution. Surely even originalists recognize the racism in the Constitution despite the lack of specific reference to slaves or slavery. It’s sort of like the comedian holding up three fingers pressed together and saying “Read (profoundly) between the lines.”

  12. Joe says:

    Per #10, the Constitution in various places accepts slavery as a given (if also leaving the way open to its abolition) and in the process, given the reality of the situation, this provided a “constitutional basis” of treating blacks differently.

    Differential treatment was legitimate if somehow reasonably based and given the race based nature of slavery, it was reasonable under that system to treat blacks differently. As I say above, this didn’t mean slaves and particularly free blacks had no rights at all. It did in practice lead to a racist result.

  13. Brett Bellmore says:

    The reality of the situation is that, at the time the Constitution was written, slavery was not exclusively a racial matter: There were white slaves, and black slave owners.

    Now, if you want to argue that racist judges and legislators found it convenient, in time, to conflate “slave” and “black”, and treat all blacks as slaves, I wouldn’t argue with that. I’d simply point out that they didn’t have a constitutional leg to stand on in doing that.

  14. Bruce,

    Slavery was a complex web of common law and statute. Some abolitionists used that in argument, and often pointed to the incoherency of slave laws. (Abolitionists were clearly on the side of right, but were very opportunistic in their use of argument, pressing a variety of ideas into service.)

    Seth,

    Exactly right. This was a compromise, and probably necessary for the creation of the Constitution (though one can argue that it was not necessary, and that other options would have been available).

    Brett (10), I think that Shag’s #11 covers your question.

    Brett (13), it’s true that slavery was not exclusively a racial divide. But those are outlier cases and red herrings. The numbers are very clear that slavery was overwhelming based on a racial divide.

    In addition, a large number of laws were explicitly race based.

  15. Here’s a couple of paragraphs from Finkelman’s _Slavery and the Law_ (after discussion of other societies where freed slaves could become community leaders):

    This was impossible — unfathomable — in the United States, where slavery was defined by race. White people in the South were always free or, if held as indentured servants or apprentices, were in a position to become free in the futre. Only blacks could be slaves; no one else, however great their misfortune, could end up enslaved. While could struggled at the margins to determine who might be black and therefore subject to enslavement, Southerners never doubted for a moment that, as South Carolina’s highest court put it, “By law, every negro is presumed to be a slave.”

    While some blacks in the South ceased to be slaves, freedom only relieved them of the burdens of servitude; it could never lead to full equality. Free blacks in the South were better off than enslaved blacks, but they remained second-class members of society. Even those few free blacks who owned substantial amounts of property — including slaves — faced a precarious existence that might be shattered by a change in public policy or popular sentiments. The South limited the rights of free blacks as much as it did slaves. Thus, as Thomas D. Morris shows in this volume, Southern states denied free blacks the right to testify against whites in court. Southern states also banned them from schools and certain professions, forbade them from owning firearms, and limited or prohibited their physical movements.

  16. Brett Bellmore says:

    And I’m still waiting for somebody to show me where this was to be found in the Constitution. You know, that written text which was actually ratified by the states, and which many people own shirt pocket editions of?

    Shag 11 not withstanding, the Constitution was silent on the subject of race, no matter what people might have done in it’s name, or even in the teeth of what it actually said.

  17. Shag from Brookline says:

    And Brett just might get into a constitutional tizzy trying to find out how there can be an Air Force when only an Army and a Navy are designated in the Constitution. Brett, I’m holding up three fingers (no, not a Boy Scout oath) and suggest you read between the lines.

    More seriously, perhaps Brett might read Lysander Spooner’s extensive 1840s paper “The Unconstitutionality of Slavery” (or a title something like that) that might support Brett’s position and Wendell Phillips’ detailed critique of Spooner.

    By the way, CJ Roger Taney’s Dred Scott opinion has been identified as an exercise in originalism and Brett should note that no reference is made to whites as slaves. Yes, Brett continues to suffer from chronic “Wickburn.”

    And Brett might read in Maier’s book on Ratification the chapters on ratification in the slave states. Nobody had to hold up three fingers to get the slave states ratifiers to understand the protection of slavery and the racism associated with it in the Constitution.

    And did the 3/5ths Clause cover other than African-Americans, e.g. whites or Native Americans?

    As to what is not “found” in the Constitution, even originalists recognize the existence of slavery of African-Americans pre-Civil War Amendments. Or do they?

  18. Brett Bellmore says:

    You know what I see between the lines in the Constitution?

    Blank paper.

    Yes, I know people who are NOT originalists, and really want originalism to have a bad rep, have identified Dred Scot as an originalist decision. Doesn’t make them right. Just makes them hostile to originalism.

    “protection of slavery”. Yes, exactly: The Constitution DID mention slavery. It did permit racism. It mentioned slavery in the context of reducing the representation of slave states, just not as much as opponents of slavery would have liked. Hence 3/5ths “compromise”.

    And, yes, it permitted racism. By not prohibiting it. I think the list of evils the Constitution permits, by not explicitly prohibiting, is probably infinite. So what? Not mentioning discrimination on the basis of “X” isn’t the same thing as endorsing discrimination on the basis of “X”.

    The Constitution didn’t come down on the right side of one of the most important moral issues of the age. But it’s dishonest to pretend that it didn’t come down on the right side by virtue of coming down on the wrong side. Silence is still silence, not saying the wrong thing, even where one should have spoken.

  19. Shag from Brookline says:

    Brett reveals his true sentiments with this:

    “It [the Constitution] mentioned slavery in the context of reducing the representation of slave states, just not as much as opponents of slavery would have liked. Hence 3/5ths ‘compromise’.”

    Brett has apparently not bothered to read Sandy Levinson’s and Paul Finkelman’s papers previously referenced by me. Was this a true “compromise”? The Pepperdine program was based upon “compromise.” Was the Constitution with respect to slavery, racism a “compromise” or a sell-out to the slave states? Finkelman addresses this with even more vigor than does Levinson.

    Brett apparently isn’t aware that originalists have identified the Dred Scott decision as based upon originalism.

    As to Brett’s “Blank paper” (aka blank mind) view, when he sees an Air Force plane flying does he waive the Constitution at it and declaim the Air Force? And Brett ignores the steady stream of Supreme Court decisions since the git-go reading “between the lines in the Constitution” in interpreting and construing it that continues to this day.

    While Brett suggests racism and other evils with slavery, he seems to wish to diminish the significance of such evils in America’s history. These evils continued, to a lesser extent, even after the Civil War Amendments, until Brown v. Board of Education in 1954 and the 1960s Civil Rights Acts, with yet remnants remaining to this day. Brett seems to want us to “get over it,” perhaps with a tabula rasa regarding racism. But Brett cannot get over his chronic case of “Wickburn.”

  20. Joe says:

    As noted, non-black slaves were outliers.

    Don Fehrenbacher’s final book, “The Slaveholding Republic,” discusses how the it was largely a choice for the federal government to be so pro-slavery. The South realized this when Lincoln was elected. Even limited by a Constitution that was not anti-slavery or restricted federal reach.

    It is correct therefore to note the Constitution is not as pro-slavery as some argue. The debate was in place even back then. Thus, in a famous speech, Frederick Douglas argued that the Constitution actually was rather anti-slavery in various ways; it surely did not support it as much as many said, if at all. And, realistically, in 1789, I don’t think slave states would have accepted much less.

    Still, it is a bit blind to ignore the situation. The Framers knew that “other persons” were slaves, who were not in nearly every case white or black, but black. Blacks from the very beginning (e.g., the 1790s, who could be naturalized) treated differently by the federal government. There was a constituitonal understanding from the start that blacks were to be treated differently, in part because slavery was accepted by the Constitution.

    By not putting anything in the document contra to that, it was furthering racism. The fact the Constitution left things open to change, even w/o amendment, by speaking vaguely and open-ended at times (though originalists don’t like this fact at times) is part of its charms and did to some degree advance the cause of equality here. W/o the Civil War, a peaceful end of slavery could be imagined as Madison noted in the Federalist Papers, once they no longer were slaves, they would have to be treated as full citizens.

    But, going too far to the other extreme like Brett seems to want to do (hey, there were white slaves, slavery wasn’t race conscious or anything) is a bit much too.

  21. Joe says:

    F.54 (note also the “negros”):

    “The federal Constitution, therefore, decides with great propriety on the case of our slaves, when it views them in the mixed character of persons and of property. This is in fact their true character. It is the character bestowed on them by the laws under which they live; and it will not be denied, that these are the proper criterion; because it is only under the pretext that the laws have transformed the negroes into subjects of property, that a place is disputed them in the computation of numbers; and it is admitted, that if the laws were to restore the rights which have been taken away, the negroes could no longer be refused an equal share of representation with the other inhabitants.”

    The paper compared “slaves” (being honest enough to use the term) and “free citizens” — the provision thus is a federal recognition of two classes of people. A “republican form of government” (which Art. IV secures) under the Constitution unamended could include slavery.

    Slavery even the “Father of the Constitution” realized was racial in nature.

  22. Brett Bellmore says:

    “As to Brett’s “Blank paper” (aka blank mind) view, when he sees an Air Force plane flying does he waive the Constitution at it and declaim the Air Force?”

    No, he says, “Nothing in this Constitution says that the Army or Navy can’t fly, and more than one Army or Navy is permitted. Clearly the relevant question is not whether we can have an army or navy which specializes in flying, and is given a different name in consequence. The relevant constitutional question is, which IS the Air Force? An army, or a navy? As they have different constitutional rules, this really does matter.”

    And Dred Scot is ‘originalist’ only in the sense that all Court reasoning, when it seeks to persuade the public, is couched in originalist terms, because that’s the only approach to interpreting the Constitution the public, as opposed the the legal fraterity, regards as legitimate. But couching your argument in originalist terms is not the same as reasoning in an originalist fashion, and the Court did not do THAT in Dred Scot.

  23. Joe says:

    The Air Force was eventually separated into a different service, which is not necessary, obviously, since it wasn’t always that way. Both the army and the navy have aerial needs. But, as you say, they don’t have the same rules (the appropriation rules are different — the two year limit only addressed to one). So, how is the air force treated?

    Actually, “a” navy is cited in Art. I., sec. 8, so is more than one navy really permitted? The text says “armies” are raised (the idea being standing armies would rarely be needed of any size other than border control) while “a” navy is provided for and maintained. But, these days, armed forces as a whole are provided for and maintained.

    Seems not quite what the text implies.

    Dred Scott also was reassoning in “originalist fashion.” That is, it cited (as many originalists do) one particular strand of original understanding in authoritative terms, announcing others are basically absurd (imagine! the other side wants us to trust blacks with guns!) and doing so in patronizing tones (“you might be surprised, and it might be upsetting, but that’s how they thought back then … hard as it is for you to understand, we are obligated to follow it. amazingly, the result matches our policy leanings”).

    You are quite right this is in part done to persuade the public that “originalists” (meaning any number of things, the term keeps on changing) are above the fray sorts unlike those nefarious living constitutionalists.

  24. Shag from Brookline says:

    And nothing in the Constitution says that what constitutes “commerce” is stagnant as of 1789. This is similar to an army or navy having airplanes today which of course the founders/framers/ratifiers did not envision or anticipate, although they knew of Ben Franklin who if around today might tell Brett to “Go fly a kite.”

    With regard to originalism, the Constitution is silent on how to interpret or construe its provisions.

  25. Joe says:

    If they read Da Vinci or knew of ballooning, airships shouldn’t be out of the realm of possibility.

    The “army” and “navy” being treated separatedly thing is one of those interesting quirks that you catch when you read things closely. Maybe they should read the Constitution, without skipping anything, more often in Congress? Ha ha.

  26. Lurker says:

    Actually, the criminal jury trial of a slave is a protection of the slave owner, not the slave. In a a slave-holding society, the slave is a valuable chattel. Punishing the slave reduces their value. Thus, the property interest of the slave-owner is hurt. A trial of a slave gives his owner due process.

    Similarly, you don’t give a dog a trial for fairness’ sake but if the sheriff decides to have a dangerous dog shot, its owner can take the order to a court (at least in some states). Still, this does not mean that the dog has rights. Its owner could shoot it at any time without consequences. (A slave could not be killed like a dog, legally, but in practice, murder of a slave was seldom punished.)

    This is not simply theory but reality. The emancipation and the resulting Jim Crow regime really increased the number of lynchings and death sentences for negroes. A free man has no inherent economic worth to third parties. A slave (or an experienced free employee) has.

  27. Joe says:

    The slave was treated as a thinking person (unlike a dog) during the trial and rights can be enjoyed by people partially for the benefit of others.

    It still holds that if a slave was accused of a crime, a trial that led him or her from being declared innocent instead of being executed, protected the slave too. The net result is a “right” is retained there. It is duly noted that ‘in practice’ restraints were applied in breach.

    I would like to see numbers that show slaves had fewer “death sentences” (putting aside deaths caused by slavery) than during the Jim Crow era. As to “inherent economic worth,” I don’t quite know what that means and since you put slaves and free employees in the same breath there, it doesn’t seem too relevant.

    This might be off-topic, but I somewhat question that a trial of a dog is not given for “fairness’ sake” as well. Dogs are not merely economic items but protected for their own sake, even if no owner is available. Cruelty to animal laws cover strays. Some degree of “personhood” is given to certain animals, at least dogs. For further reading, I refer to Julie Hilden’s website/essay on where this can take us.

  28. Shag from Brookline says:

    Lurker brings into play economics as it related to slaves and slavery. This was important to the slave states in preserving “property.” I recall being informed several years ago that the economic issue was considered with respect to not only African-American slaves but also to whites and Native Americans as slaves; that whites would be able to fairly easily escape the “chains” of slavery by blending in with the white populous and the Native Americans as having the innate ability to escape and survive while making their way back to their tribes. As to the 1808 limitation on the African slave trade, the economic issue may have involved competition with “home-grown” African-American slaves as the value of the latter would decrease from such competition. Money talked back then.

  29. Brett Bellmore says:

    I think our argument here, Shag, is over what it means to say something is “in” the Constitution. That you can find it written in the text, or that the judiciary might be determined to read it into the text despite it’s absence there.

    I’m in the “written in the text” camp, and the text fairly unambiguously does not say anything about race. It did not go so far as to prohibit legal racial discrimination, and that was a shame, and the founders knew it was a shame. But it still stopped short of actually endorsing racial discrimination.

    The Taney Court read a constitution which permitted racial discrimination as mandating it. We’re still fighting that battle, even after the 14th, with the recent decision in Michigan.

  30. Shag from Brookline says:

    Brett’s “simpletonian” approach to the Constitution ignores history, public understanding, etc, with his ” … “’written in the text’ camp” in his pup-tent with the likes of a Clarence Thomas. This approach also ignores over 200 years of Supreme Court decisions that go beyond the written text.

    And this statement by Brett:

    ” … and the text fairly unambiguously does not say anything about race.”

    stands the actual text on its head. Paul Finkelman has identified oh so many provisions in the text that relate to race with substantial historical evidence of the power of the slave states in coming up with the Constitution. To deny such is a form of constitutional creationism.

  31. Brett Bellmore says:

    “that relate to race”. This is weasel wording. I know of provisions which relate to slavery, but of none that relate to race.

    Yes, our fundamental disagreement is about whether the Constitution is “the Constitution”, or whether all the judicially constructed penumbras about it are.

  32. Shag from Brookline says:

    Clearly, the facts on the ground at the time of the Constitution (African-American slaves and the African slave trade going back many, many decades in the Colonies) well demonstrate that constitutional ” … provisions which relate to slavery … ” in context related to race. Consider the the 1808 provision on the [blank] trade: were European whites included in the subject? (And note my comment # 28.) So, “Pop, Goes the Weasel.”