Under the Articles of Confederation, the question of slavery and its relation to representation could be conveniently ignored in the formation of the federal Congress, because each state was represented equally. However, since the new Constitution proposed to alter the rule of representation, and many Framers intended from the beginning that states would now be represented proportionally in Congress, the Framers would have to confront the existence of the slave population in one fashion or another. Would states be represented only according to their free population? Would slaves be counted equally with freemen in the computation of representation? Would some compromise be struck between these two positions?
The political interests that were at stake in these different choices, and the theoretical implications arising from them, are not immediately obvious, and many people have misunderstood the meaning of the three-fifths clause. For instance, it is not at all uncommon to hear within the popular media today that the Founders viewed slaves as being only three-fifths of a person. This simplistic account of the three-fifths clause does not accurately reflect the debates surrounding the issue. The Framers did not base this compromise on any perceived inferiority of the personhood of the slave; indeed, it was the Southern slaveholding states that had wanted slaves to be counted equally with freemen (to increase Southern power in the Congress and, eventually, election of the president as well), and some Northern delegates had argued that slaves should not be counted at all for reasons of representation.
The real problem with the three-fifths clause is not related to any fractional number, but rather to the fact that slaves would be counted at all within a census that was designed to apportion political representation—a representation which is supposed to be based on a people’s natural and political freedom. Implicit in the system is the fact that, however counted, slaves would, of course, have no vote; any increase in representation resulting from the existence of slaves would be to the benefit of the slaveholders. Probably no one has ever described the problem of including slaves in the census more forcefully or more concisely than Gouverneur Morris did in the Convention:
The admission of slaves into the representation, when fairly explained, comes to this,—that the inhabitant of Georgia and South Carolina, who goes to the coast of Africa, and, in defiance of the most sacred laws of humanity, tears away his fellow-creatures from their dearest connections, and damns them to the most cruel bondage, shall have more votes, in a government instituted for the protection of the rights of mankind, than the citizen of Pennsylvania or New Jersey, who views, with a laudable horror, so nefarious a practice.
Counting slaves in the census would give slaveowners a political bonus in the legislature and in the election of the president, and it would give them this political advantage in proportion to the number of people that they enslaved and oppressed. Such a basis for political representation had never been tried before (no state counted slaves for the purpose of representation in their own legislatures), and certain delegates from the Northern States wanted to exclude the slaves altogether from the apportionment of representation in the federal Constitution.
There were many people at this time who believed that representation should be based not only on natural or personal rights, but also on property. After all, taxation was always based on distinctions in wealth; therefore, it was fitting that political power—which was to determine the taxes which would be levied on the states—should also be, at least in part, based on distinctions of wealth. This consideration was even more compelling because Congress was not designed merely to represent individual citizens; it was also designed to represent state interests as such. Even those members who were at some moments the loudest in proclaiming the justice of proportional representation—such as James Madison, Gouverneur Morris, James Wilson, and Rufus King—were willing at other moments to concede that the number of free inhabitants was not the only consideration worthy of factoring into the equation for representation. And the most important secondary consideration was the differences in wealth.
In fact, there did not seem to be a single delegate who consistently argued that representation should be based on free population alone. The various proposals for representation that were offered in the Convention would have factored into the equation either the states, the money paid into the federal treasury, property in general, or slaves in particular. The main difficulty with the three-fifths clause (for those who perceived any difficulty at all) was the appearance of inflating the political power of slaveowners by counting (even partially) the numbers of those whom they oppressed. Many of these objections would probably have been removed if the Constitution had arrived at the same apportionment in the balance of representation between the Northern and Southern States but had found a different means for achieving the same effect. Many others would have been satisfied if other forms of property were included rather than singling out slaves alone.
Interestingly, Madison’s original proposal in the Virginia Plan would have resolved many of these difficulties. The second resolution proposed that “the rights of suffrage in the National Legislature ought to be proportioned to the Quotas of contribution, or to the number of free inhabitants, as the one or the other rule may seem best in different cases.” The “different cases” in the second resolution most likely refers to the two different houses of the legislature, since the words immediately following in the third resolution make plain “that the national legislature ought to consist of two branches.” That interpretation is consistent with what Madison later proposed for the two houses: that one should be represented by free population (in order to protect personal rights) and the other should be based on all population, including slaves (in order to protect property rights).
When the subject of apportioning representation was first debated in the Committee of the Whole on May 30, Madison’s first instinct was to try to postpone one contentious issue (slavery) in order to first establish the principle that was even more contentious (proportionality). He and Edmund Randolph moved that the Convention agree only “that the rights of suffrage in the national Legislature ought to be proportioned.” This issue alone threatened to be so explosive in the opening days of the Convention that the entire subject of representation was postponed for almost two weeks before it was taken up again. When the Committee was finally ready to confront representation on June 11, it was quickly moved—by James Wilson of Pennsylvania and Charles Pinckney of South Carolina—that, in the formation of the First House, they should substitute instead of “free inhabitants” the compromise position that representation would be based on “the whole number of white and other free citizens … and three fifths of all other persons” (in other words, slaves).
Wilson and Pinckney did not dream up the three-fifths ratio on their own; there was precedence for that particular fraction. A few years earlier, Congress had proposed changing the way that money was requisitioned from the states. Instead of basing requisitions on the value of real estate (which was what the Articles of Confederation had prescribed but which was increasingly seen as unworkable), Congress proposed basing requisitions on the whole number of free population and counting slaves as three-fifths (in fact, it was Madison who had proposed that precise number). The proposed new mode of calculating requisitions had passed Congress and almost all of the state legislatures. Even though this amendment never went into effect, people had become accustomed to that fraction in relation to slavery.
When the proposal to apply the three-fifths clause to representation was first made in the Convention, almost no one seemed to discern the problematic nature of the change. Elbridge Gerry was the only one to object; he “thought property not the rule of representation. Why, then, should the blacks, who were property in the south, be, in the rule of representation, more than the cattle and horses of the north?” At first glance, Gerry’s analogy appears deeply offensive, because it appears as though he is merely comparing African-Americans to cattle and horses. Yet it is unlikely that he meant anything demeaning to African-Americans. In spite of the crudeness of Gerry’s articulation, his larger point is an important and valid one. No other property was being counted in order to swell the political power of any state. Why was a property in slaves being singled out, as if it were a privileged form of wealth, in order to augment the political clout of the Southern States? Gerry was trying to articulate a repulsive feature that was lying below the surface of the three-fifths clause. The other delegates had not yet grappled with the implications of Gerry’s dissent, but that same objection would gain force and increase the delegates’ discomfort with the three-fifths clause as the summer progressed and its meaning struck home.