The three-fifths clause (of Article 1, Section 2) was of such importance in the debates of the 1787 convention because, as nonslaveholding state delegates recognized, if a state’s representation in the federal legislature were based on the number of all of the state’s inhabitants, including its slaves, the slaveholding states would have a representation vastly disproportionate to their free populations.23 Delegates of both slaveholding and nonslaveholding states objected to the idea that the three-fifths ratio, derived as we have seen as a compromise “index of wealth” for taxation, should be applied to the apportionment of representation. Slaveholding state delegates opposed the ratio because they demanded that all their slaves be counted. South Carolina and Georgia “insisted that blacks be included in the rule of representation equally with whites, and for that purpose moved that the words ‘three fifths’ be struck out.”24 Their position was unsurprising since they would then have a greater number of representatives and legislative power. What is of special interest to our genealogy of the slave’s absent presence in the Constitution is that once again the arguments turned upon the value-producing labor of slaves, as compared to free labor: “Mr. Butler insisted that the labor of a slave in South Carolina was as productive and valuable as that of a freeman in Massachusetts; that as wealth was the great means of defense and utility to the nation, they were equally valuable to it with freeman; and that consequently equal representation ought to be allowed for them in a government which was instituted principally for the protection of property.”25 As nonslaveholding state delegates recognized, this argument that slave labor was equally productive and valuable as free labor contradicted those arguments advanced by slaveholders earlier, in the context of taxation: “This ratio was fixed by Congress as a rule of taxation. Then, it was urged, by the delegates representing the States having slaves, that the blacks were still more inferior to freemen. At present, when the ratio of representation is to be established, we are assured that they are equal to freemen.”26
If slaveholding state delegates opposed the three-fifths ratio because they supported “considering blacks as equal to whites in the apportionment of representation,” nonslaveholding state delegates opposed the ratio because they did not want slaves counted at all.27 As we have seen, many were categorically opposed to the very idea of “slave representation.” In these objections, they returned to that point introduced by John Adams at the outset of the American Revolution regarding the contradictions in political representation produced by claiming “persons” as “property.” William Patterson of New Jersey “could regard negro slaves in no light but as property. They are no free agents, have no personal liberty, no faculty of acquiring property, but on the contrary are themselves property, and like other property, entirely at the will of the master.”28 Focusing on those attributes of free personhood recognized by the laws of the state—personal liberty, free agency, and will—and pointing to the contradiction between these attributes of free personhood and the slave’s legal condition as property, Patterson’s arguments highlight the framers’ shared conception of the direct link between legal “free agency” and “the acquiring of property,” both of which require that the person not be subject entirely to the will of another. Elaborating these attributes of the self-willing “person” to be represented by the state, Patterson reminded the other delegates of “the true principle of representation,” as “an expedient by which an assembly of certain individuals, chosen by the people, is substituted in place of the inconvenient meeting of the people themselves. If such a meeting of the people was actually to take place, would the slaves vote? They would not. Why then should they be represented?”29 Invoking the classic republican scene of assembly wherein citizens gathered together to agree upon the democratic will, Patterson cites the slave’s legal incapacities as marking the limits of the citizen. As property with no free agency or independent wills of their own, slaves would not in such a scene represent themselves; therefore they must not be represented.
The arguments of the nonslaveholding state delegates opposed to counting slaves equally with free persons in the apportionment clause centered upon this fundamental republican principle of representation: such inclusion of slaves defied the “true principle of presentation,” effectively making a slaveholder the representative of his slaves. Gouverneur Morris argued further that it was “encouragement of the slave trade, as would be given by allowing them a representation for their negroes.”30 A corollary objection founded on this republican principle of representation was that the citizens of their states “would revolt at the idea of being put on a footing with slaves.”31In these objections, we see once again the ways in which the figure of the slave functioned in the republican imaginary, as the opposite not only of the “free inhabitant” laborer but also of the citizen. This legal status of citizenship need not yet be obtained by the “free inhabitant,” as was the case for thousands of immigrants, indentured servants, and apprentices. Those “bound to service for a term of years”—under the only form of labor bondage explicitly named in the Constitution—were understood to be “free persons.” As free laborers, they were considered always-already becoming citizens, and thus a logical part of that population to be represented in the government of the new nation.
Proposing the three-fifths ratio in the 1787 convention (taking it from the compromise ratio introduced by Madison in the 1783 taxation debates), James Wilson agreed with those who argued that any apportionment of representation in the national legislature based on a population of slaves was illogical. Opposed to slavery and representing the state that had passed the first gradual emancipation act in 1780, Wilson “did not well see, on what principle the admission of blacks in the proportion of three-fifths could be explained. Are they admitted as citizens—then why are they not admitted on an equality with white citizens? Are they admitted as property—then why is no other property admitted into the computation? These were difficulties, however, which he thought must be overruled by the necessity of compromise.”32 The problem for those objecting to any inclusion of slaves in the numerical rule of representation was the other republican principle shared by all the framers: that “taxation and representation ought to go together.”33 This view was directly linked to the “true principle of representation” invoked by Patterson. At least since James Otis’s famous speech declaring “taxation without representation is tyranny” (in other formulations, it was slavery), this “principle of representation” was one of the primary rallying cries of colonial opposition to the abuses of Parliament, and the American Revolution itself. Yet precisely because “eleven out of thirteen of the States had [already] agreed to consider slaves in the apportionment of taxation,” they would also have to consider slaves in the rule of representation, if the slaveholding states were to enter into this “compact.”34
Addressing this shared view of the necessary link between taxation of wealth and a corresponding representation in the national legislature, Wilson articulated most clearly both the substantive political logic and the literary “equivocation” by which the three-fifths ratio of “other persons” entered into the apportionment clause. Emphasizing, like Madison, “the necessity of compromise,” Wilson “observed, that less umbrage would…be taken against an admission of the slave into the rule of representation, if it should be so expressed as to make them indirectly only an ingredient in the rule, by saying that they should enter into the rule of taxation; and as representation was to be according to taxation, the end would be equally attained.”35 The law’s desired object and intent—counting slaves for representation—could be reached indirectly if the clause was formulated as to count slaves solely for the purpose of taxation: slaves could enter the national body politic of legislative representation indirectly through the back door of wealth taxation. Wilson’s argument thus highlights also the ways in which the “spirit” of a law, its “object and intent,” could be separated from its “letter,” that mode through which the law is “expressed.” As we will see in the debates over