To appreciate the historical significance of the three-fifths clause to the Constitution’s inscription of the rights of citizenship, it is important to note that the three-fifths ratio did not begin as a ratio for the apportionment of representation. The ratio came from the 1783 Congress, when James Madison—who would later wear the mask of Publius in The Federalist No. 54 to explain its incorporation into the “compromising expedient” of the Constitution—proposed the ratio as a “compromise” in the context of negotiations over the calculation of property values, or “the index of wealth,” for the purposes of taxation.8 The application of the ratio to representation in the 1787 convention “was an entirely new concept.”9 While the bondsman’s form of appearance in this clause would suggest that the provision was primarily about political representation, its repressed history reveals it to be equally about property, and the wealth-producing value of those laborers owned as property.
In fact, this debate over the ratio for the enumeration of enslaved “other persons” began with the American Revolution and the drafting of the Articles of Confederation, likewise as a debate over the “index of wealth” for taxation. The debates of the Second Continental Congress over assessing the financial contributions of states to the cost of the War of Independence introduced those terms of labor that would be central to the 1787 constitutional convention’s debates over the three-fifths clause and “the true principle of representation” in the new republic: “the index of wealth,” and the relative values of free and enslaved laborers. At the center of this ongoing debate, from 1776 through 1788, was the question of how slaves were to be regarded under national law as opposed to local state law: as property or as persons.10
In the 1776 Congress of Confederation, representatives of the nonslaveholding states argued for taxation based on all the people of a state, including its slaves: “John Adams (of Massachusetts) observed that the numbers of people were taken by this article as an index of the wealth of the State, and not as subjects of taxation. That as to this matter, it was of no consequence by what name you called your people, whether that of freeman or of slaves. That in some countries the laboring poor were called freemen, in others they were called slaves: but that the difference as to the state was imaginary only.”11 In Adams’s argument, the difference between slaves and the laboring poor was merely nominal: considered in their material conditions—without property of their own and serving as the perpetual dependent hirelings of others—the laboring poor were the equal of slaves; and thus for the state’s purposes, the laboring poor’s difference from slaves, their nominal freedom, was “imaginary only.” Adams elaborated upon the imaginary character of this distinction between slaves and the formally free laboring poor by proposing a hypothetical transformation: “Suppose, by any extraordinary operation of nature or of law, one half the laborers of a State could in the course of one night be transformed into slaves—would the State be made the poorer, or the less able to pay taxes?”12Adams’s counterfactual reinforces the political-economic understanding that it was the slaves’ “equal” status as laborers, as persons who “produce…profits,” that mattered to the “wealth of the nation,” and that the economic values of free and enslaved laborers were the same, insofar as the “surplus” produced by both types of laborers would be taxed to support the new nation-state: “Certainly five hundred freemen produce no more profits, no greater surplus for the payment of taxes, than five hundred slaves.…It is the number of laborers which produces the surplus for taxation; and numbers, therefore, indiscriminately, are the fair index of wealth.”13Drawing together his arguments regarding the equality of conditions and the equal value of slave and free laborers, Adams concluded: “That it is the use of the word ‘property’ here, and its application to some of the people of the State, which produces the fallacy.…That a slave may, indeed, from the custom of speech, be more properly called the wealth of his master, than the free laborer might be called the wealth of his employer; but, as to the State, both were equally its wealth.”14With this assessment of their equal status as producers of taxable surplus wealth for the state, Adams introduced those key words of the slavery debates, “property” and “persons,” whose contested meanings as applied to the peculiar case of the slave are linked to that “imaginary” distinction between slave and free laborers.
Unsurprisingly, slaveholding state delegates opposed a numerical rule of taxation inclusive of those “people of the State” they owned as slaves, and disputed Adams’s claims regarding the equal value of slave and free labor: “Mr. Harrison (of Virginia) proposed, as a compromise, that two slaves should be counted as one freeman. He affirmed that slaves did not do as much work as freemen, and doubted if two affected more than one.”15Harrison’s 1776 “compromise” ratio was premised upon a conception shared by many political elites of the period that slave labor was less productive than free labor, and so should not count as much as free labor in the calculus of taxable wealth. The antislavery Pennsylvanian James Wilson, who in the 1787 convention would introduce the three-fifths ratio into the Constitution’s apportionment clause, objected in this 1776 debate to the slaveholders’ labor-value calculus: “He acknowledged indeed that freeman worked the most; but they consume the most also. They do not produce a greater surplus for taxation.”16 What is of interest here is the point of agreement between the delegates of slaveholding and nonslaveholding states: both sides were of the view that “freeman worked the most.” Both sides took for granted the point, elaborated most famously by Adam Smith in An Inquiry into the Nature and Causes of the Wealth of Nations (1776), that free labor was more productive than slave labor.17 Yet the point of disagreement is equally significant to the debates over slavery in the early national period and later during the antebellum Union crisis, and to our historical understanding of modern citizenship. The value of labor, Wilson argued, ought to be considered in its relation to consumption as well as production: their relative values depended on the costs of reproducing these laborers.
This ratio for the enumeration of enslaved inhabitants as a state’s “index of wealth”—as laborers and thus as the producers of a state’s taxable surplus—was fine-tuned in the 1783 Congress, with an even greater number of positions on the relative values of slave and free labor: some delegates argued “that two blacks be rated as one freeman”; others argued “for rating them as four to three”; and still others “sincerely thought three to one would be a juster proportion.”18 In 1783, the debate again focused on the relative productivity of free and slave laborers—as calculated in the difference between the costs of reproducing the laborers and the value of those commodities produced by them. Nonslaveholding state delegates “were for rating the slaves high” in this ratio, arguing “that the expense of feeding and clothing them was as far below that incident to freemen as their industry and ingenuity were below those of freemen.”19The slaveholding state delegates did not dispute the view of the nonslaveholding state delegates regarding the costs entailed in maintaining and reproducing slave laborers (“the expense of feeding and clothing them”).20 Slaveholders insisted, however, on the much lower relative productivity of slave labor and thus a lower “taxable surplus” with respect to costs of reproduction, insofar as “slaves were not put to labor as young as the children of laboring families.”