[Note: this op-ed is not by Constitutional Accountability Center, and does not represent our views of the three-fifths compromise, but is on our website because the author refers to us directly. For our response to this piece, see the article published in the same outlet–the San Antonio Express-News– by CAC Civil Rights Director David Gans, here.]
Constitution Day is today. The U.S. Constitution is a document that evolves with the times. Constitutional inadequacies and societal injustices are challenged, and social progress is the result. Instead of reverence for this brilliant document that ensures our rights, it is attacked by some as a severely flawed and even a racist contract.
One of the most widely used means to defame the Constitution is to manipulate perception of the three-fifths compromise. Agenda-driven academicians and committed ideologues routinely state the U.S. Constitution only recognizes blacks as three-fifths of a person. No context is given. This often-repeated falsehood foments disrespect of the Constitution and contempt for the founders who authored it.
The U.S. Constitution does not relegate blacks to “three-fifths of a person” status. Article I, Section 2 of the U.S. Constitution states: “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.” The “other Persons” were slaves.
The 1787 Constitutional Convention addressed the apportionment in the House of Representatives and the number of electoral votes each state would have in presidential elections based on a state’s population. The Southern states wanted to count the entire slave population. This would increase their number of members of Congress. The Northern delegates and others opposed to slavery wanted to count only free persons, including free blacks in the North and South.
Using the logic of the promoters of the “three-fifths of a person” interpretation, think of the constitutional ramification had the position of the Northern states and abolitionists prevailed. The three-fifths clause would have been omitted and possibly replaced with wording that stated “other Persons” would not be counted for apportionment. The Constitution, then, would be proclaiming slaves were not human at all (zero-fifths). This is an illogical conclusion and was certainly not the position of Northern delegates and abolitionists.
Counting the whole number of slaves benefited the Southern states and reinforced the institution of slavery. Minimizing the percentage of the slave population counted for apportionment reduced the political power of slaveholding states.
Denigration of the Constitution is not restricted to committed demagogues.
San Antonio’s U.S. District Judge Fred Biery addressed the Austin Bar Association on Law Day 2012. His speech focused on various social injustices in America’s past and how attorneys righted these wrongs. Biery used the example of then-recent Heisman Trophy winner Robert Griffin III. The judge asserted that in 1787 when the Constitution was ratified, Griffin’s “ancestors … were counted only as three-fifths of a human being.” Biery is alarmingly ignorant. Or worse, he is consumed with the need to promote and further a personal creed.
There are other troubling aspects of the lifetime judge’s declaration. Biery’s speech was published in San Antonio Lawyer after he addressed the bar association. Didn’t any of the attorneys at the meeting who actually understood the meaning of that portion of the Constitution advise Biery of his misrepresentation?
David Gans is the director of the Human Rights, Civil Rights and Citizenship Program at the Constitutional Accountability Center, a think tank and law firm. The Express-News published a column by him on constitutional requirements in the past year (“Count all people, as Constitution requires, March 10) in which he stated that “someone who was enslaved would be counted as three-fifths of a person” for the purpose of determining representation in Congress.
The magnitude of this constitutional illiteracy is not restricted to those on the political left. Former Secretary of State Condoleezza Rice routinely stated in her speeches, “In the original U.S. Constitution, I was only three-fifths of a person.”
In 1787, the founders were attempting to form a union and preserve the nascent United States. This imperfect compromise allowed for preservation of the republic while also confronting the moral and systemic evils of slavery. Erroneous and distorted interpretations of the Constitution only intensify the societal divide in America.