The Three-Fifths Clause and the Founding in Contemporary Public Discourse

In recent days, a public storm has been brewing about Emory University President James Wagner’s column in the latest issue of his institution’s alumni magazine.  Wagner presents the Constitution’s three-fifths clause as a model of compromise from which we can still learn:

One instance of constitutional compromise was the agreement to count three-fifths of the slave population for purposes of state representation in Congress. Southern delegates wanted to count the whole slave population, which would have given the South greater influence over national policy. Northern delegates argued that slaves should not be counted at all, because they had no vote. As the price for achieving the ultimate aim of the Constitution—“to form a more perfect union”—the two sides compromised on this immediate issue of how to count slaves in the new nation. Pragmatic half-victories kept in view the higher aspiration of drawing the country more closely together.

Some might suggest that the constitutional compromise reached for the lowest common denominator—for the barest minimum value on which both sides could agree. I rather think something different happened. Both sides found a way to temper ideology and continue working toward the highest aspiration they both shared—the aspiration to form a more perfect union. They set their sights higher, not lower, in order to identify their common goal and keep moving toward it.

Wagner’s comments have been nearly universally reviled and have become the subject of voluminous commentary, the best of which may well be a column by Aaron Bady for The New Inquiry.  On the subject of what Wagner’s column says about the state of higher ed today, I have nothing to add to Bady’s views.

But Wagner’s comments, the reaction to them, and his (semi-)retraction published this weekend indicate interesting things about the place of the three-fifths clause and the Founding, in general, in contemporary American public discourse.

I think it’s fair to say that most Americans give very little thought to U.S. intellectual history.  Probably the biggest exception to this general rule involves the nation’s founding.  As students, most Americans encounter–often even at first hand–some of the key documents connected with the creation of the United States: the Declaration of Independence, the Constitution, and the Federalist Papers.  There is a general expectation that citizens understand our system of government, the basic principles that underlie it, and, at least in broad outline, the history of its creation. And when it is periodically discovered that many Americans don’t, much public hand-wringing ensues.

In general, Americans are taught–and believe–that the canonical documents of the founding are (to steal a phrase from 1066 and All That) Good Things.  The features of the Constitution that clearly didn’t work, such as the original method for selecting a Vice President, are little noted. And the near-perfection of the overall system, at least in its present form, is almost axiomatic.

The three-fifths clause has, at least in recent years, been a partial exception to this general lauding of the Constitution, hence the nearly universally negative reaction to Emory President Wagner’s remarks.  But what exactly was wrong with the three-fifth’s clause is often misunderstood, as Wagner’s attempted apology nicely illustrates:

The point was not that this particular compromise was a good thing in itself.   It was a repugnant compromise.  Of course it is not good to count one human being as three fifths of another or, more egregiously, as not human at all, but property.

As historians never tire of pointing out, the problem with the three-fifths compromise was not that slaves counted too little in matters of apportionment, but rather that they counted too much. The South would, of course, have preferred that each slave count as a full person.  What was immediately at stake in this compromise was not the existence of slavery–which was still legal in most of the North as well–but rather how slaves would be considered when apportioning congressional representation.  Wagner’s apology, all too typically, misses the point.

Of course, to elaborate in this way on why the three-fifths compromise was a Bad Thing leaves us with a difficult question: practically speaking, what was the alternative? The standard view, I think, is that while this compromise was a Bad Thing, since the Constitution was a Good Thing, it was, unfortunately, necessary. Here, for example, is Scott Lemieux, in comments on Erik Loomis’s LGM post about Wagner’s statement:

 I don’t actually have a problem with defending the compromises made with slave states in the Constitution; it’s not like a slave-free national union was an option. But I wouldn’t cite this as an example of the values of compromise either . . .

I mean, clearly several states would not have accepted a constitution that banned slavery, and that included Virginia. So it was only an option if you think that the “United States” should have excluded any existing slave states, a result that would have created a much weaker country while not actually emancipating any slaves.

While we are willing to declare the three-fifths clause a Bad Thing, we are much less willing to entertain the possibility that the Constitution was not a Good Thing…in which case it’s hard to argue with Lemieux’s logic here.

The problem is that, in our public discourse, we maintain an essentially Whiggish view of the U.S.’s ongoing constitutional experiment. Yes, Mistakes Were Made. But, in the long run, we assume that things basically kept getting better. Major steps along the way–such as the framing of the Constitution–were necessarily Good Things, even if they had bad bits. So there’s something uncomfortable about simultaneously calling the three-fifths compromise a Bad Thing and the Constitution a Good Thing, once we acknowledge the latter’s dependency on the former.  Of course, one never needs to make the argument that the Constitution was a Good Thing. That’s simply assumed.

Meanwhile, the principle that seems to be violated by the three-fifths clause in many ways continues to be violated by our system of government.  Disenfranchised convicts and ex-cons count toward reapportionment at the federal, state, and local levels. For some politicians, this can put a premium on having a prison in one’s district, especially in lightly populated, rural areas. But despite efforts by the NAACP’s Legal Defense Fund to draw attention to the problem of prison-based gerrymandering, we seem more comfortable with what Jamelle Bouie has appropriately called “the new three-fifths compromise” than we do with Wagner’s inappropriate invocation of the original. Perhaps if prisoners only counted as parts of people we’d be more upset.

There is, of course, much to be admired in the American Constitutional tradition. And there is also much to be criticized, especially in regards to the many compromises essentially caused by accommodating the institution of slavery.  Truly thinking historically about any of this involves moving beyond Good Things and Bad Things, into a world of shades of grey. It also involves acknowledging contingency. The Constitution was far from inevitable, as Pauline Maier reminded us a couple years ago.  Given the central role that the Founding plays in American civil religion, it may be too much to ask that our public culture start to think about these things more as historians do.  But one can always dream.