Three-fifths Compromise

The “three-fifths compromise” refers to the agreement among the framers of the U.S. Constitution that produced the opening sentence of Article I, Section 2, Clause 3, which states, “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.” Some have read this clause as suggesting that the founding generation considered the slave as only three-fifths human. The reality is both more mundane and more tragic.

If the framers of the Constitution had been united in a common prejudice, the term “compromise” would have little relevance. The fact is, not all framers accepted the legitimacy of slavery, but chose to give the peculiar institution limited constitutional recognition to expedite ratification and federal union. To achieve that end, two distinct but related issues had to be addressed: representation and& taxation.

Among the leading criticisms of the Articles of Confederation was that voting by states and the rule of constitutional unanimity had prevented the old Congress from establishing a reliable source of revenue to fund its debts and provide for the common defense.

Initially, opposition between more populated and less populated states prevented a clear consensus on how the new Constitution should be structured. Should it approximate the old method of equal state representation of the Articles of Confederation, or institute popular, proportional representation? After much debate, the two ideas were mixed, with equal state representation provided in the Senate and proportional representation in the House of Representatives. Yet this last issue ran into difficulties: how were the slaves of the southern states to be counted?

Traditional republican theory, going back to ancient times, held that dependent persons were incapable of exercising independent judgment, and should therefore not be allowed to vote. With respect to “representation,” however, most believed that the entire populace was “virtually represented” by the free and independent male “head of the household.” For this reason, women and children of freemen were always counted as part of the general population when apportioning representatives. So why not count the southern slave population?

The reason was financial and was first raised in the Continental Congress while drafting the Articles of Confederation in 1776, a few short days after issuing the Declaration of Independence. Congress had to find some means of equitably distributing the burden of revenue collection on the states. Two approaches, both fraught with difficulty, presented themselves: population versus landed wealth.

The first was proposed by Samuel Chase of Maryland as a better measure of a state’s ability to contribute, but he made one qualification. He could see no more reason “for taxing the Southern states [of which Maryland was one] on the farmer’s head, and on his slave’s head than the Northern ones on their farmer’s heads and the heads of their cattle.” If slaves were counted, he argued, southern states would be taxed both “on their numbers and their wealth conjunctly, while the northern would be taxed on numbers only.” Eventually, Congress chose to use land as the measure, but as noted, this proved cumbersome and ultimately unworkable.

An attempt was made in 1783 to revise the Articles and use population. In the resolution of April 18, it was proposed to count only three-fifths of the slave population. but the resolution failed. Without a reliable source of revenue, the efficacy of Congress and the Articles of Confederation was called into question, setting the stage for the Constitutional Convention in Philadelphia in 1787.

It was in this context that the subjects of representation and taxation were again joined. Some southern representatives to the Convention, such as Pierce Butler of South Carolina, wanted their entire populations, free and slave, counted for the purposes of determining the number of congressmen a state could send to the new House of Representatives. Other representatives challenged the legitimacy of that position, asking, in the words of William Patterson of New Jersey, why slaves should be counted at all toward federal representation when they “are not represented in the States to which they belong?” It was Charles Pinckney and James Wilson, a South Carolinian and Pennsylvanian respectively, who first recalled the old 1783 congressional resolution of three-fifths for the determination of revenue and then applied that to representation as a means of resolving the controversy. As Madison asked later in The Federalist No. 54, “Could it be reasonably expected, that the southern states would concur in a system, which considered their slaves in some degree as men, when burdens were imposed, but refused to consider them in the same light, when advantages were to be conferred?”

This clause was repealed by Section 2 of the Fourteenth Amendment.

SEE ALSO: Articles of Confederation; Constitutional Convention of 1787; Continental Congress; Declaration of Independence; Fourteenth Amendment; Madison, James; Slavery; U.S. Constitution