Lanny Davis is a lawyer, a graduate of Yale Law School and from 1996 to 1998 he served as a special counsel to President Bill Clinton. He and Jay Sekulow appeared together on “The Sean Hannity Show” to discuss the reading of the Constitution by the new Congress. Davis wanted to know if the “three-fifths” clause would be read, implying that it was a racist part of the Constitution. Mr. Sekulow did not have time to take on this issue, but he shouldn’t have had to. Mr. Davis should know that the “three-fifths” clause has nothing to do with the idea that black slaves were being described as “three-fifths” of a white person. If he doesn’t know this, then he shouldn’t be practicing law, and if does know this and perpetuates the falsehood in order to gain some political edge, then he shouldn’t be practicing law.
The issue of slavery was a major concern at the Constitutional Convention and was discussed at length in the debates. A significant minority of the delegates to the Federal Convention were staunch opponents of slavery, primarily those who adhered to the Federalist philosophy. Benjamin Franklin and Alexander Hamilton opposed slavery. John Jay, who would become the first Chief Justice of the United States, was president of the New York anti-slavery society. Northern Federalist leaders Rufus King and Gouvernour Morris were outspoken opponents of slavery and the slave trade.
Elias Boudinot (1740–1821), who was a lawyer, served three congressional terms representing New Jersey (1789–1795), was a delegate to the Continental Congress, and presided as President of the Continental Congress from 1782 to 1783, making him the chief executive officer of the United States. Boudinot signed the Treaty of Paris in 1783 that ended the Revolutionary War. He was an early opponent of slavery. “Southern and Border State Federalists also openly opposed the institution.”1 Many people do not know that the original Constitution words “race,” “slavery,” “slave,” “white,” or “black.” Such omissions are curious since there are many who view the Constitution as a racist document. Actually, the word “slavery” did not enter the Constitution until after the War Between the States in the Thirteenth, Fourteenth, and Fifteenth Amendments.
The so-called racist intent of the Constitution is seen by some (many?) in the “three-fifths clause” found in Article I, section 2, clause 3. Contrary to what some historians claim, the “three-fifths clause” is a clear indication that a number of our constitutional founders wanted to end slavery; it is not a statement about personhood. The Northern states did not want to count slaves. The Southern states hoped to include slaves in the population statistics in order to acquire additional representation in Congress to advance their political position.
It took 30,000 people to get one congressman, and slaves outnumbered whites in slave states. It was the Democrat hope that with enough pro-slavery congressmen, they could overturn much of the abolitionist legislation Northern Republicans had previously passed.
However, there was one philosophical problem: blacks in Southern states had no rights thus The North deemed it a joke they only be counted when beneficial to Democrats. Northern abolitionists argued that since the South considered blacks their property, all ‘property’ should be counted for the purpose of determining congressional representation. Thus the Northern abolitionists would include their property: horses, cattle, homes, furniture, pets, etc. in their population tallies.
The South denounced the proposal, so anti-slavery northerner James Wilson of Pennsylvania came up with a compromise. Blacks in the Southern states would be counted as “three-fifths” of a person. That way, it would take 50,000 people (instead of 30,000) in a district to earn congressional representation. That had the effect of limiting the power of the slave states.
The compromise was to count slaves as “three-fifths” of a person for representation purposes. The fewer slaves counted the fewer number of representatives. “It had NOTHING to do with the worth of a person and EVERYTHING to do with diminishing the power of” the pro-slavery Southern states.
The goal of the Northern delegates was to dilute Southern voting strength so as to outlaw slavery by constitutional means. “The struggle that took place in the convention was between the Southern delegates trying to strengthen the constitutional supports for slavery and the Northern delegates trying to weaken them.”2 If none of the slaves had been included in the population count for representation, as Northern delegates wanted, the slave states would have had only 41 percent of the seats in the House. If all the slaves had been included, as the pro-slave states wanted, the slave states would have had 50 percent of the seats. By agreeing to count slaves as three-fifths of a person for representation purposes, the slaveholding states ended up with a minority voting position—47 percent. Robert L. Goldwin concludes:
[T]he point is that the “three-fifths clause” had nothing at all to do with measuring the human worth of blacks. Northern delegates did not want black slaves included, not because they thought them unworthy of being counted, but because they wanted to weaken the slaveholding power in Congress. Southern delegates wanted every slave to count “equally with the Whites,” not because they wanted to proclaim that black slaves were human beings on an equal footing with free white persons, but because they wanted to increase the pro-slavery voting power in Congress. The humanity of blacks was not the subject of the three-fifths clause; voting power in Congress was the subject.3
Was it right for the Northern delegates to agree to this compromise? We will never know. Second guessing the actions of men who lived two-hundred years ago is a waste of time and energy. Distorting the facts of history is reprehensible. Lanny Davis should know better.
- Nathaniel Weyl and William Marina, American Statesmen on Slavery and the Negro (New Rochelle, NY: Arlington House, 1971), 48.(↩)
- Robert A. Goldwin, “Why Blacks, Women & Jews Are Not Mentioned in the Constitution,” Commentary (May 1987), 29.(↩)
- “Why Blacks, Women & Jews Are Not Mentioned in the Constitution,” 30.(↩)