The Three-Fifths Clause

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.

—Rebecca E. Zietlow

Introduction

The Three-Fifths Clause is among the most notorious provisions of our Constitution. For purposes of taxation and representation, “other Persons” were counted as only sixty percent of a person. Although the Three-Fifths Clause does not include the word “slave,” its phrasing implies that “other people” were neither free nor white—and thus were enslaved.¹ Along with the so-called Fugitive Slave Clause,² the Three-Fifths Clause represented an acknowledgment of the institution of slavery in our original Constitution.³ This provision was effectively repealed by the ratification of the Thirteenth Amendment.

The Articles of Confederation

Under the Articles of Confederation, the national government’s only source of revenue was the money it derived from “requisitions” that it submitted to the states.⁴ These requisitions were based on “the value of all land within each state.” However, an amendment to the Articles that was debated in 1783 provided that requisitions would be calculated based on a state’s population. Under this proposal, advanced by James Madison, an enslaved person would be counted as three-fifths of a person for purposes of the requisitions.⁵

The resolution was controversial, as some southern states preferred taxation to be based on land values. It was a compromise between northerners, who thought it undervalued enslaved people, and southerners, who thought it overvalued enslaved people, for the purpose of determining taxation.⁶ Madison’s proposal faced some opposition, and because amendments to the Articles required unanimous consent, it was never adopted.

The Constitutional Convention

One of the first issues that the Framers of the Constitution considered in 1787 was the question of how representation would be apportioned in Congress. Under the Articles, each state had one vote in Congress. Now, Governor Edmond Randolph of Virginia proposed that the House of Representatives be apportioned based on population.⁷ However, the population in the northern states was not equal to the population in the southern states. At the time, southern states had large numbers of enslaved persons but had smaller populations of free people than northern states had.⁸

The southern delegates to the Convention wanted to count enslaved people as full persons to increase their states’ representation in the national government. Some northern delegates, on the other hand, resisted counting enslaved people at all. Why, asked Elbridge Gerry of Massachusetts, should “the blacks, who were property in the South, be in the rule of representation more than the cattle & horses of the North?”⁹ Northern delegates were also concerned that counting slaves as full persons would incentivize southern slaveholders to import still more slaves. However, some southern delegates even threatened that they would “never confederate” unless enslaved people were counted under at least a three-fifths ratio.¹⁰

The Three-Fifths Clause represented a compromise between northern and southern delegates. It was introduced by James Wilson and Charles Pinckney on June 11, 1787.¹¹ “Free persons” would be counted at a ratio of 100 percent, and enslaved persons would be counted at a ratio of sixty percent. The clause excluded “Indians not taxed” because they were subject to tribal, not state, sovereignty.¹² It would also provide roughly equivalent population numbers between the North and the South and augmented the political power of southern states, giving the South a “strong claim to special treatment for its peculiar institution.”¹³

By itself, however, the three-fifths compromise for representation was not enough to win approval by the delegates. On July 12, facing deadlock at the Convention, Gouverneur Morris of Pennsylvania moved to add a “proviso that taxation shall be in proportion to Representation” without regard to a three-fifths ratio for enslaved persons.¹⁴ Representation, however, would still be subject to the three-fifths ratio. This proviso was later limited to direct taxation. James Madison of Virginia wrote that the purpose of this proviso was to “lessen the eagerness on one side, & the opposition on the other, to the share of Representation claimed by the [Southern] States on account of the Negroes.”¹⁵ In other words, southern states with larger enslaved populations would face a much larger tax burden. Morris said he meant his motion only “as a bridge to assist us over a certain gulph.”¹⁶ This proviso ultimately did not succeed. Instead, tying apportionment to both taxation and representation turned out to be crucial.

Under the Three-Fifths Clause as adopted, enslaved people were to be counted as less than free people for representation, which was not in the interests of the South, but also were to be counted as less than free people for measuring a state’s apportioned direct-tax liability, which benefitted the South. Furthermore, applying the ratio to taxation as well as to representation protected the integrity of the census. As Madison explained in Federalist No. 54, “the States should feel as little bias as possible to swell or to reduce the amount of their numbers. . . . By extending the rule to both [taxation and representation], the States will have opposite interests which will control and balance each other and produce the requisite impartiality.”

The Three-Fifths Clause and Abolitionism

The Three-Fifths Clause recognized and, in a way, condoned the institution of slavery. It also insulted the human dignity of enslaved people by treating them as only three-fifths of a person—an insult that was not diminished by the counterintuitive regional divisions whereby southern slaveholders actually favored full representation for enslaved persons, while northern abolitionists opposed any representation at all. However, it is notable that the word “slave” is absent from the clause. Like its companion Fugitive Slave Clause, the Three-Fifths Clause employs the term “person” to refer to enslaved persons.

During the early nineteenth century, antislavery activists engaged in a fierce debate over the constitutionality of slavery. Some, most notably William Lloyd Garrison, referred to the Three-Fifths Clause as evidence that the Constitution was marred by slavery.¹⁷ Others, such as Lysander Spooner and Joel Tiffany, argued that the Framers deliberately avoided using the term “slave” because they did not want to constitutionalize slavery.¹⁸ These antislavery constitutionalists argued that the Framers hoped that slavery would die of its own accord.¹⁹ They also advocated a textualist reading of the Constitution, claiming that the intent of those Framers who hoped to protect slavery was irrelevant to proper constitutional interpretation.

The Three-Fifths Clause and Representation

Counting enslaved people for purposes of representation even at a three-fifths ratio gave southern states significant political advantages in the House of Representatives and the Electoral College. As a result, during the Antebellum Era, the southern states were largely able to elect Presidents who favored, or at least were not opposed to, slavery (the two notable exceptions being John Adams and John Quincy Adams). These Presidents, in turn, largely selected members of the Supreme Court who favored, or at least were not opposed to, slavery. This trend would continue until the election of Abraham Lincoln and the coming of the Civil War.

The Three-Fifths Clause and the Reconstruction Amendments

After the Civil War, the Thirteenth Amend-ment was ratified. The amendment abolished slavery and in turn invalidated the Three-Fifths Clause. As a result, the population of southern states for purposes of apportionment increased substantially. Ironically, because the freedmen could not vote, the Thirteenth Amendment increased the power of the former Confederate states as their representatives returned to Congress.

Now that formerly enslaved people were counted as full people for the purposes of representation, debates began about efforts by the former Confederate states to deny their right to vote.²⁰ To prevent the disenfranchisement of the formerly enslaved, the Reconstruction Congress adopted Section 2 of the Fourteenth Amendment. Under this provision, if males over the age of twenty-one were denied the right to vote, they would not be counted for purposes of representation (men could be disenfranchised if they had participated in the rebellion “or other crime”). However, Section Two was never enforced.

After the ratification of the Thirteenth and Fourteenth Amendments, the irony continued: Formerly enslaved people and their descendants were still denied the right to vote even as they counted fully for purposes of representation, and for nearly a century, the power of the southern states in the federal government would continue to increase. The passage of the Voting Rights Act of 1965 would begin to reverse this trend, protecting the right to vote of people of color throughout the country, but especially in the former Confederate states.

Open Questions

The three-fifths rule does not directly affect litigation today, but it does affect how scholars interpret the apportionment requirement for direct taxes. It has been argued, for example, that the clauses dealing with direct taxation should be ignored because they are tainted by slavery or because, with slavery ended, there is no reason to honor any part of the compromise. In light of the entire history that led to the Revolution and the Constitution, however, it would be going too far to assume that in a world without slavery, the Founders would have been indifferent to the dangers of national taxation.

1. Mark Graber, Dred Scott and the Problem of Constitutional Evil 13 (2006). ↩︎
2. Art. IV, § 2, cl. 3. ↩︎
3. Paul Finkleman, Slavery and the Founders: Race and Liberty in the Age of Jefferson 7 (2d. ed. 2001). ↩︎
4. Articles of Confederation, art. VIII. ↩︎
5. Digital History, The Three-Fifth Compromise, https://perma.cc/S7KN-3A76. ↩︎
6. Finkelman, supra at 13. ↩︎
7. Id. at 10. ↩︎
8. Graber, supra at 101. ↩︎
9. 1 Farrand’s 201. ↩︎
10. Finkleman, supra at 19. ↩︎
11. 1 Farrand’s 193, 201, 205. ↩︎
12. Brad Tenant, “Excluding Indians Not Taxed”: Dred Scott, Standing Bear, Elk and the Legal Status of Native Americans in the Latter Half of the Nineteenth Century, 86 Int’l Soc. Science Rev. 24 (2011). ↩︎
13. Id. at 7. ↩︎
14. 1 Farrand’s 592. ↩︎
15. 2 Farrand’s 106. ↩︎
16. Id. ↩︎
17. Finkleman, supra at 3. ↩︎
18. Rebecca E. Zietlow, The Forgotten Emancipator: James Mitchell Ashley and the Ideological Origins of Reconstruction 38 (2017). ↩︎
19. Id. at 36. ↩︎
20. Franita Tolson, The Constitutional Structure of Voting Rights Enforcement, 89 Wash. L. Rev. 379 (2014). ↩︎