Civil and Human Rights

OP-ED: Celebrate the whole Constitution

Re: “The three-fifth clause an imperfect compromise,” Another View by Steven Philbrick, Monday:

Constitution Day, which was Monday, was a time to reflect on our nation’s charter and how Americans over the course of more than two centuries have struggled to create a more perfect union true to our core constitutional values. To that end, professor Steven Philbrick sets out to understand the three-fifths compromise. But he turns a blind eye to one of our Constitution’s deepest injustices, accusing myself and others of “foment(ing) disrespect of the Constitution and contempt for the founders who authored it.”

Try as he might, Philbrick cannot erase the framers’ decision to count enslaved persons as three-fifths of a person for purposes of determining representation in Congress.

It is a tragic fact that some of the Constitution’s most celebrated authors held slaves and wrote critical protections of slavery into a document that sought to “secure the blessings of liberty.” In the three-fifths clause, the framers gave slaveholding states additional representation in Congress and additional votes in the Electoral College based on the number of slaves held in bondage.

This was justified on the view that slaves were too degraded to be treated as fully human. For example, in the Federalist Papers, James Madison defended the three-fifths clause, claiming that slaves had been “debased by servitude below the equal level of free inhabitants.” We should not pretend this history doesn’t exist.

At the Constitutional Convention, a number of delegates saw this horrendous injustice for what it was. For example, Gouverneur Morris, one of the Founding Fathers, denounced the additional representation the clause provided to slaveholders. “The inhabitant of Georgia and S.C. who goes to the coast of Africa” and “tears away his fellow creatures from their dearest connections & dam(n)s them to the most cruel bondages, shall have more votes in a Govt. instituted for the protection of mankind.” As Morris powerfully argued, the three-fifths clause was fatally inconsistent with the Constitution’s protection of basic human rights.

Because of its pro-slavery features, critics of slavery called the original Constitution a “covenant with death” and an “agreement with Hell.” But in the wake of the Civil War, the American people rid the Constitution of the stain of chattel slavery, adopting three transformative amendments that, together, constitute a “Second Founding.” The 13th, 14th and 15th amendments abolished chattel slavery, made equal protection an explicit constitutional mandate, and guaranteed the right to vote free from racial discrimination. These amendments relegated the three-fifths clause to the dustbin and helped to transform our Constitution from an aggressively pro-slavery document to one that actually promised equal citizenship to all.

Understanding this story does not “foment” disrespect for the Constitution. It is essential to understand our Constitution’s true story. Erasing the past won’t change it.

More from Civil and Human Rights

Civil and Human Rights
May 16, 2022

RELEASE: ALEX JONES ADMITS LIABILITY FOR STATEMENTS ABOUT BRENNAN GILMORE 

Gilmore Litigation “Strikes a Blow Against Conspiracy Theorists and Disinformation Peddlers”  CHARLOTTESVILLE, VA – Brennan...
By: Elizabeth B. Wydra, Brennan Gilmore
Civil and Human Rights
May 8, 2022

Column: The right to abortion is deeply rooted in the Constitution and flows from amends for slavery

Los Angeles Times
Now that we’ve had a moment to digest the leaked Supreme Court draft opinion overturning Roe vs....
By: David H. Gans, By Robin Abcarian
Civil and Human Rights
May 3, 2022

Supreme Court teed up for major decisions over next two months

Roll Call
The Supreme Court could send a shock through politics and policy in Washington and across...
By: Brianne J. Gorod, By Michael Macagnone
Civil and Human Rights
May 3, 2022

Abortion draft opinion fallout: Could rights to same-sex marriage, contraception be next?

USA Today
WASHINGTON – Whenever the Supreme Court hands down its final ruling in this year's blockbuster challenge...
By: David H. Gans, By John Fritze
Civil and Human Rights
May 5, 2022

Alito Abortion Draft Pushes Little-Known Justice Into Spotlight

Bloomberg
Justice Samuel Alito mostly avoided the limelight for 16 years, even while being arguably the...
By: Brianne J. Gorod, By Greg Stohr
Civil and Human Rights
May 4, 2022

THE FACT-FREE LOGIC OF SAMUEL ALITO

The Intercept
In his zeal to overturn Roe and do away with abortion rights, the Supreme Court...
By: Elizabeth B. Wydra, By Jordan Smith