I NOW CONSIDER the number of representatives each State shall have, together with the apportionment of direct taxes, which will be determined using the same rule: “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.” Art. I, § 2, form. cl. 3.
The Three-Fifths Compromise
The reference to “three fifths of all other persons” refers to slaves in the southern States, and was agreed to as a compromising expedient between the northern and southern States.
I shall refer to it as the Three-Fifths Compromise, for it regards slaves as inhabitants, but divested of two fifths of the rights of a free citizen or one bound to service for a term of years.
Using the number of individual citizens in each State as the standard for regulating the proportion of those who are to represent the People of each State was unobjectionable.
The establishment of the same rule for the apportionment of taxes also was little contested.
Though similar in effect, the rules are not founded on the same principle.
In the case of counting actual inhabitants, the rule is understood to refer to the personal rights of citizens, with which it has a natural and universal connection.
In the case of apportioning taxes, it has reference to the proportion of wealth attributable to those citizens.
It is by no means a precise measure, and in ordinary cases a very unfit one.
But notwithstanding the imperfection of the rule as applied to the relative wealth and contributions of the States, it was the least objectionable rule proposed, and had gained support in a recent Congress as an amendment to the Articles of Confederation.
Assuming all this is admitted, does it follow that slaves ought to be included in the numerical rule of representation?
The initial argument against counting slaves towards representation was a legal one: since slavery is lawful in the southern States, and slaves are there considered as property – not as persons – slaves ought to be excluded from representation which is regulated by a census of persons, but be included in estimates of taxation founded on property.
A number of southern delegates countered that their laws of their States do not consider slaves merely as property, and in no respect whatever as persons.
They argued that slaves partake of both these qualities: being considered by their laws as persons in some respects, and in other respects as property.
In being compelled to labor, not for himself, but for a master; in being vendible by one master to another master; and in being subject at all times to be restrained in his liberty and chastised in his body, by the capricious will of another, the slave may appear to be degraded from the human rank, and classed with those irrational animals which fall under the legal denomination of property.
On the other hand, a slave is protected – in life and limb – against the violence of all others, even the master of his labor and liberty. The slave himself is punishable for all violence committed against others.
The slave is no less evidently regarded by the law as a member of the society, not as a part of irrational creation; as a moral person, not as a mere article of property.
Equitable Considerations Precluded Treating Slaves Solely as Property
The question of slaves may be placed in another light.
It was agreed on all sides that numbers are the best scale of wealth and taxation, and that numbers are the only proper scale of representation.
Would the Convention have been impartial or consistent if it had rejected the slaves from the list of inhabitants when the shares of representation were to be calculated, and inserted them on the lists when the tariff of contributions was to be adjusted?
Could it be reasonably expected the Southern States would concur in a system which considered their slaves in some degree as men when burdens were to be imposed, but refused to consider them in the same light when advantages were to be conferred?
Might not some surprise also be expressed that those who reproach the southern States with the barbarous policy of considering as property a part of their human brethren, should themselves contend that the Federal government – to which all the States would be parties – ought to consider this unfortunate race more completely in the unnatural light of property than the very laws of which they complain?
These questions tended to expose the inconsistency of those who abhorred slavery, but nonetheless were willing to accept its beneficial legal definitions when arguably applicable.
The response of northern delegates to these questions was with a question of their own: since slaves are not included in the estimate of representatives in any of the States possessing them, and they neither vote themselves nor increase the votes of their masters, upon what principle ought they to be taken into the Federal estimate of representation?
These Questions Were Resolved by a Uniform Federal Rule that Each State Is to Determine the Number of Its Inhabitants
If the Convention had wholly rejected counting slaves as inhabitants to determine representation, it would have appeared to have been following the laws of the southern States.
But this approach was rejected by the Convention as against a more fundamental principle of the Constitution – which holds that the aggregate number of representatives allotted to the several States ought to be determined by a uniform Federal rule which aggregates the inhabitants of each State – as counted by each State.
States Have Different Voting Requirements
At present, the count of inhabitants will vary from State to State, based on numbers and qualifications.
The qualifications upon which the right of suffrage depend are not the same in any two States, and in some States the difference is very material.
In every State a certain proportion of inhabitants are deprived of the right to vote by their respective State constitutions, yet these individuals will still be included in the allotted number of inhabitants each State reports in the first census.
Southern States observed that the principle laid down by the Convention would require that no regard should be had to the policy of particular States towards their own inhabitants, and that slaves – as inhabitants – could have been admitted into the census according to their full number, in like manner with other inhabitants who are not admitted (by the policy of their own State) to all the rights of citizens.
But the southern States did not insist on a rigorous adherence to the principle; all they asked was that equal moderation be shown by the northern States.
At bottom, the case of slaves is a peculiar one.
The Three-Fifths Compromise counts each slave as an individual inhabitant, but debased by servitude below the level of free inhabitants.
The Three-Fifths Compromise regards a slave as divested of two fifths of the value of a free inhabitant or those bound to service for a term of years.
The Federal Constitution, therefore, decides with great propriety when it views slaves in the mixed character of persons and of property.
This is in fact the true character bestowed on them by the laws under which they live, since it is only under the pretext that the laws have transformed Negroes into subjects of property, leaving their place disputed in the computation of numbers.
It is further admitted that if the laws were to restore the rights which have been taken away, the Negro slaves could no longer be refused an equal share of representation with the other inhabitants.
Representation Properly Encompasses Property Rights
There is another ground on which the Three-Fifths Compromise will admit of a still more ready defense.
I have hitherto proceeded on the idea that representation is related to persons only, and not at all to property.
But is it a just idea?
Government is instituted no less for the protection of the property than of the protection of persons.
Both protection of property and protection of persons may be considered interests to be represented by those who are charged with guiding the government.
Upon this principle, in several States – particularly New York – one branch of the government is intended more especially to be the guardian of property, and is accordingly elected by that part of the society which is most interested in this object of government.
The Federal Constitution differs, however, because it commits the rights of the person and the rights of property and into the same hands.
From this it follows that those in charge ought to direct some of their attention to property rights as well as to personal rights.
Additionally, the representatives allocated to each State should bear some proportion to the comparative wealth of each State, which would include slaves, even though they are disenfranchised.
The Influence of One State over Another Will Be in Superior Numbers Alone
Unlike individuals, one State cannot possesses influence over another, except in having a higher number of representatives.
It is not probable that the richest State in the United States will ever influence the choice of a single representative in any other State.
Nor will the representatives of larger and richer States possess any other advantage in Congress over the representatives of other States, other than what may result from their superior number alone.
Therefore, as far as their superior wealth and weight may justly entitle them to any advantage, it will be secured to them by a superior share of representation.
Federal Laws Will Be Enacted by Representatives, Not States
In this respect, the new Constitution is materially different from the Articles of Confederation, as well as the laws of the United Netherlands.
In that and other similar confederacies, the efficacy of Federal resolutions depends on the subsequent and voluntary resolutions of the states composing the union.
Hence some states have an unequal influence (even though each state possesses but an equal vote in the public councils), corresponding with the unequal importance of these subsequent and voluntary resolutions.
Under the Federal Constitution, the Federal acts will take effect without the necessary intervention of the individual States.
These acts will depend merely on the majority of votes in the Federal legislature, without regard to which State the representative represents.
As a consequence, each vote – whether proceeding from a larger or smaller State – or a State more or less wealthy or powerful – will have an equal weight and efficacy.
This is not dissimilar to how votes are given individually in State legislatures by the representatives of unequal counties or districts.
Each vote has precise equality of value and effect. If there be any difference, it usually proceeds from differences in the personal character of the individual representative, rather than from any regard to the extent of the district represented.
Using the Same Formula of Counting for Both Representation and Taxation Will Have Beneficial Consequences
The establishment of a common measure for representation and taxation will have a very salutary effect.
The accuracy of the initial census obtained by the Congress will necessarily depend on the disposition and cooperation of the States.
It thus is greatly important that the States should feel as little bias as possible to swell or to reduce the amount of their numbers.
Were their share of representation alone to be governed by this rule, they would have an interest in exaggerating their inhabitants.
Were the rule to decide their share of taxation alone, a contrary temptation would prevail.
By extending the rule to both objects, the States will have opposite interests, which will control and balance each other, and produce the requisite impartiality.
Madison