The meaning of the Three-Fifths Clause
posted by Kaimipono D. Wenger
It’s very common to hear progressive writers criticize the racial inequality in the Constitution. One common such criticism invokes the Three-Fifths Clause — that is, writers criticize the Constitution as a document which unjustly labels slaves as merely “three-fifths of a person.” This sort of statement suggests that the Three-Fifths Clause created some sort of legally diminished status for Blacks, perhaps granting them only three-fifths of others’ rights or protections.
The idea that the Constitution is problematic because it labels slaves “three-fifths of a person” comes up frequently in news stories and online conversations. For instance, the New York Times discussion earlier this year about House members reading the Constitution noted that, “Certainly the Republican leadership is not trying to suggest that African-Americans still be counted as three-fifths of a person.”
This sort of framing, while common, reflects a fundamental misunderstanding of the Three-Fifths Clause and of what the Constitution does and does not say about race.
First of all, the Constitutional text itself was not the major legal source of the subordinated status of Blacks. In fact, the Constutition is largely silent on issues of race. It only mentions slavery a few times, never by name. (The Three-Fifths Clause is one of these mentions.)
The subordinated legal status of Blacks in America was not caused by operation of the Three-Fifths Clause or other portions of the Constitutional text. Rather, Blacks’ subordinated legal status was created by a variety of state statutes. Those state laws were the legal basis for slavery, which stripped enslaved Blacks of their freedom and rights. (A variety of other state laws also disempowered Blacks.)
Thus it is incorrect to say, referring to rights or personhood, that the Constitution reduced slaves to three fifths of a person. Rather, state laws removed essentially all human rights and protections from enslaved Blacks (and removed many rights from non-enslaved Blacks). And the Constitution permitted this. Remember, the Constitution is mostly silent on slavery. Its biggest single contribution to racial subordination was silence.
This makes clear that the idea of “three fifths of a person” in fact vastly overstates the rights held by enslaved Blacks. 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.
So, if the Three-Fifths Clause didn’t directly strip slaves of rights, what exactly did it do? It was part of a structure designed to give the South political power.
At the Constitutional Concenvention, the question arose of how to count slaves for purposes of Congressional representation. Slaves were a large population — twenty percent of the total U.S. population at the time, with much higher representation in states like Virginia. The slave state Virginia had 420,000 white citizens and 280,000 slaves. And representation in the House was (and still is) based on state population. But which population mattered? Was it a state’s free population only, or its total population including slaves? This would make a big difference.
Southern supporters of slavery wanted slaves to be fully counted for purposes of determining House seats. This would of course increase the South’s political power, since the vast bulk of slaves lived in Southern states. Meanwhile, Northern politicians argued that slaves should not be counted for representation purposes. The compromise was eventually to count slaves as three-fifths of a person, for purposes of determining House seats.
And of course, it does not explicitly mention race or slavery: “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.”
All of this should make clear just how misguided the common misunderstanding is. The Three-Fifths Clause was not a provision which reduced slaves to three-fifths rights. In fact, this was an instance where lower numbers were preferable. Southern slave supporters were arguing in favor of a five-fifths clause, so to speak — that is, they wanted their slaves to be fully counted for purposes of determining House seats — while Northern abolitionists were arguing in favor of zero.