This is the second in a series of essays answering defamatory charges leveled against the U.S. Constitution. Theย first in the seriesย addressed the allegation that the Constitution discriminated against women. In fact, as that essay showed, the framers took pains to ensure the document was gender-neutral.
Another false charge is that the Constitution stems from, and continues to reflect, โsystemicย racism.โ Critics point to Article I, Section 2, Clause 3โthe โthree-fifths compromiseโ explained belowโeven though that provision was amended out of the document more than 150 years ago.
By way of illustration, a 2011ย Time magazineย cover story asserted, โThe framers โฆ gave us the idea that a black person was three-fifths of a human being.โ Last year, Time doubled down with aย columnย stating that โthe Constitution defined African-Americans as only three-fifths of a person.โ Similarly, a Teen Vogueย itemย misinformed its young readers with these words:
โWhite supremacy is systemic. โฆ It thrives in politics with systems โฆ like the electoral college, a process originally designed to protect the influence of white slave owners, which is still used today to determine presidential elections [because] โฆ [e]nslaved black people โฆ were declared three fifths of a person in order to strengthen the power of the white men who kept them in bondage.โ
The Internet is littered with such drivel.
The truth is that the Constitutionโs text was racially neutral. The framers employed the same wordโโpersonโโto refer to humans of all races. They rejected the racial qualifications for voting and office-holding that marred some state constitutions. For all purposes, they treated Indians who paid taxes and the significant number of free African-Americans exactly as they treated white people.
So what was the three-fifths compromise? And what is the basis of the charge that it was racist?
The three-fifths compromise addressed two issues: (1) the size of each stateโs delegation in the House of Representatives and (2) each stateโs contribution of federalย direct taxes. Direct taxes were levies imposed on individual persons (โcapitationsโ) and on a wide range of items, such as property, income, wealth, and professions. Direct taxes were distinguished from โindirect taxesโ or โduties,โ which were primarily levies on consumption and on transportation of goods across political boundaries.
The Constitution provided that every state would have at least one representative in the House of Representatives. The three-fifths compromise added that both the additional representatives and direct taxes would be split among the states according to their population.ย But for these purposes only, each stateโs population figure would be reduced (1) to exclude โIndians not taxedโ and (2) to rate each slave as three-fifths of a free person.
If you assume that counting persons is the proper basis for congressional representation, itโs easy to see how one could misread the reduction for slaves and the exclusion of non-tax-paying Indians as expressions of racism. However, many, probably most, of the framers did not think counting persons was the proper basis for representation. They believed representation should followย ability to contribute federal tax revenue. This view was inherited from English history, and was reflected in the Revolutionary War slogan, โNo taxation without representation!โ
But when the framers tried to find a formula for calculating each stateโs ability to contribute tax revenue, they ran into practical difficulties. After rejecting several proposed formulas as unworkable, they conceded that, at least over the long run, a stateโs tax capacity would correlate with its population.
As James Wilson of Pennsylvania said, โ[I]n districts as large as the States, the number of people was the best measure of their comparative wealth. Whether therefore wealth or numbers were to form the ratio it would be the same.โ
There were two exceptions to the rule that tax capacity followed population. First, some states contained substantial numbers of Indians who were governed exclusively by their tribes. They did not pay state taxes and would not pay federal taxes. Second, the framers recognized that, on average, slaves produced far less than free people.
This recognition had nothing to do with race. It was because slavesโof any raceโcould not sell their labor and talents in the free market. They were stuck in a centralized system of command and control, rather like Communism.
Thus, the framers had to find a way to reduce a stateโs representation according to the proportion of its population held in bondage.
Fortunately, the Confederation Congress already had done the work for them. In 1783, Congress studied the relative productivity of slave and free workers. Among the factors it considered were
- The differing incentives of enslaved and free people;
- the value of their respective output, which was much less among slaves because of poor incentives;
- the respective costs of feeding and clothing free and slave labor;
- the ages at which young free people and slaves began working (found to be lower for free children than for slave children);
- the differing climates in free and slave states;
- the value of imports and exports in free and slave states; and
- that slaves were disproportionately confined to agriculture as opposed to manufacturing and other activities.
Race wasnโt even on Congressโs list!
One is reminded of Thomas Jeffersonโs quotation of the Greek poet Homer: โJove fixโd it certain, that whatever day, Makes man a slave, takes half his worth away.โ As Jefferson knew, Homer was speaking ofย whiteย slaves.
In other words, the three-fifths compromise was not a statement about race at all. It was a statement about the economic inefficiency of slavery.
Critics contend that the three-fifths compromise rewarded slave states. Actually, it punished them with reduced congressional representation. Hereโs how it worked: Suppose a state had a population of 300,000. Suppose this population included 210,000 whites, 10,000 free blacks, 50,000 slaves, 20,000 citizen-Indians who paid taxes, and 10,000 tribal Indians who did not pay taxes. Only the tax-producing Indians would be counted, and the count of slaves would be reduced to reflect their relatively poor productivity. Thus, for purposes of allocating representatives and direct taxes, the stateโs population would be credited as only 270,000 rather than 300,000. That is: 210,000 + 10,000 + [3/5 x 50,000] + 20,000 + 0 = 270,000.
Itโs true that the compromise also reduced a slave stateโs direct taxes. But that was not a particularly good deal for the slave states, because except in wartime Congress was expected to resort only toย indirectย taxesโa prediction that proved true for many years.
Nearly all the framers understood that slavery was evil. But as I shall explain in a later essay, they needed to come to terms with it if they hoped to hold the union together. Failure would have led to a fractured continent and European-style internecine warfare.
But letโs not make more of the framersโ concession than the facts dictate: The three-fifths compromise was not an endorsement of, or subsidy for, slavery. It was based on a finding that slavery was economically stupid as well as unjust.
This essayย first appearedย in the March 21, 2021ย Epoch Times.
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