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
December 6, 2023

RELEASE: Focus on Hypotheticals at Supreme Court Argument this Morning Shouldn’t Distract from the Question in this Case and Title VII’s Answer

WASHINGTON, DC – Following oral argument at the Supreme Court this morning in Muldrow v....
By: Brianne J. Gorod
Civil and Human Rights
December 1, 2023

Is a Lateral Job Transfer With No Change in Pay or Benefits an Adverse Employment Action Under Title VII? The Supreme Court has Decided to Weigh In

JD Supra
At a Glance The U.S. Supreme Court has granted certiorari to address a split in...
Civil and Human Rights
U.S. Court of Appeals for the Seventh Circuit

Doe v. Mukwonago Area School District

In Doe v. Mukwonago Area School District, the Seventh Circuit is considering whether policies prohibiting transgender students from using the bathroom consistent with their gender identity violate Title IX.
Civil and Human Rights
August 26, 2023

They invest in Black women. A lawsuit claims it’s discrimination.

Washington Post
Conservative activist Edward Blum’s nonprofit organization is suing Fearless Fund, alleging that the firm’s grant...
By: David H. Gans, Taylor Telford
Civil and Human Rights
August 28, 2023

A Fund for Black Women Entrepreneurs is Being Sued for Discrimination

The Story Exchange
A conservative activist claims the Fearless Fund, which invests in Black women business owners, engages...
By: David H. Gans, By Candice Helfand-Rogers
Civil and Human Rights
August 22, 2023

Title VII on the Move: Unravelling the Legal Tango of Lateral Transfers

Gordon Rees Scully Mansukhani
On June 30, 2023, the U.S. Supreme Court granted Sergeant Jatonya Muldrow’s Petition for Writ...