The roots of this phrase and its insertion into the Constitution antedate the Constitutional Convention of 1787. By the 1640s, at the latest, there was already an energetic abolitionist movement in North America. By 1652, the Rhode Island legislative body eliminated slavery in that colony. By the time of the American Revolution, more than a century later, a majority of the residents in the majority of the thirteen colonies — soon to become the thirteen states — opposed slavery.
Yet another question arises: if abolitionism was a majority view, how did the minority — those who sought to maintain slavery — so effectively contend for so evil an institution? The answer is multipartite. Among the factors which allowed slavery to persist were: Slave-owners were often wealthy, and wealth can lead to disproportionate political influence; slave owners fiercely clung to their ideology; slave owners were, or became, adept at using the political and governmental systems.
Abolitionists, in the early decades of the movement, were loath to use violence in pressing their case.
The Revolutionary War had ended several years before the Constitutional Convention. The United States functioned during those years under the Articles of Confederation. That short-lived system of government had various flaws which caused the call for a convention which would, in turn, compose a revision of those articles, or, as it turned out, an entirely new constitutional document.
In those years between the end of the war and the Constitutional Convention, the tensions between the abolitionists and the slaveholders continued to simmer. In the treaty which ended the war, there was a clause which prevented the British from “causing any Destruction, or carrying away any Negroes or other Property of the American inhabitants.” A dispute arose about how to interpret this provision of the treaty. The abolitionists understood it to mean that the British were not to abduct or kidnap the “Negroes.” The slaveholders understood it to mean that any slaves who had run away from their owners and sought refuge behind the British lines, during the Revolutionary War, must be returned to their (former) owners.
In the course of the debate about the interpretation of this phrase in the treaty, Alexander Hamilton wrote:
In the interpretation of Treaties things odious or immoral are not to be presumed. The abandonment of negroes, who had been induced to quit their Masters on the faith of Official proclamations promising them liberty, to fall again under the yoke of their masters and into slavery is as odious and immoral a thing as can be conceived. It is odious not only as it imposes an act of perfidy on one of the contracting parties; but as it tends to bring back to servitude men once made free. The general interests of humanity conspire with the obligations which Great Britain had contracted towards the Negroes to repel this construction of the Treaty if another can be found.
Hamilton, taking the side of the majority, opposed anything, any text, or any interpretation of a text, which would transfer people from a state of freedom to a state of servitude. Hamilton, embracing the popular understanding that the purpose of a government is to protect the lives, freedoms, and properties of its subjects, understood them in that order: life, freedom, property. The only reason to impose any limitation on the principle of property rights is for the higher purpose of preserving life and freedom. Slavery was a violation of freedom, and so the freedom of the potential slave outweighed the property rights of the would-be slaveholder.
Alexander Hamilton was a powerful champion of property rights, but, as historian Ron Chernow writes, the principle of liberty was one of two things that, in Hamilton’s mind, justified any limitation on property rights — the other being the preservation of life:
This fierce defender of private property — this man for whom contracts were to be sacred covenants — expressly denied the sanctity of any agreement that stripped people of their freedom.
Rachel, Hamilton’s mother, had inherited slaves. She did not seek them out. As a child, he was often in the company of these slaves, who did not work for Rachel. They were employed elsewhere, as she hired them out for various tasks. Hamilton got to know these slaves, and was shaped in his thinking by his mother’s humane treatment of them. “This early exposure to the humanity of the slaves may have made a lasting impression on Hamilton, who would be conspicuous,” writes Chernow, “for his fierce abolitionism.”
It is no surprise that Hamilton joined the New York Society for Promoting the Manumission of Slaves, known by the shorter name of the “New York Manumission Society.” Not only was he a member of the society, but held a leadership position, and possibly was part of authoring some of the unsigned pamphlets issued by the society.
In February 1786, the society “lobbied the state legislature to halt the export of slaves from New York.”
That March, Hamilton’s name appeared on a petition that called upon the state legislature to end the New York slave trade and that deplored the plight of blacks exported “like cattle and other articles of commerce to the West Indies and the southern states.” The petition demanded the termination of a practice “so repugnant to humanity and so inconsistent with the liberality and justice which should distinguish a free and enlightened people.”
It is well-established, then, both that Hamilton was a dependable abolitionist, and that a majority of Americans, both before and after the Revolution, were abolitionists and had been for decades part of a significant abolitionist movement. All of this was the case prior to the beginning of the Constitutional Convention.
The question reappears: how did the “three-fifths clause” come about, and whom did it benefit? Describing the Constitutional Convention, James Madison wrote:
The States were divided into different interests not by their difference of size, but by other circumstances; the most material of which resulted partly from climate, but principally from their having or not having slaves. These two causes concurred in forming the great division of interests in the States. It did not lie between the large and small States: it lay between the northern and southern, and if any defensive power were necessary, it ought to be mutually given to these two interests.
The minority was so rigid in its defense of slavery that it was willing to destroy the new nation rather than risk the possibility of abolition. Perhaps they reasoned that, either as thirteen estranged states, or as again British colonies, they could retain slavery, even if it be at the cost of sacrificing all that had been gained in the Revolution. Ron Chernow explains:
As Madison conceded, the specter of slavery haunted the convention.
Chernow continues:
For many southerners, the slavery issue allowed no room for concessions, and they supported the Virginia Plan in exchange for protecting their peculiar institution. Charles Cotesworth Pinckney of South Carolina stated baldly, “South Carolina and Georgia cannot do without slaves.” The issue was so explosive that the word slavery did not appear in the Constitution, replaced by the euphemism of people “held to service or labor.”
On other issues, the citizens of the new nation disagreed, and yet could find compromises: taxation, legislation, foreign policy, etc. But the question of slavery proved intractable. Neither the abolitionists nor the slaveholders would compromise — until the Constitutional Convention. The debate as to whether or in which ratio slaves would be calculated into congressional representation that, according to some sources, it lasted four-and-a-half days.
At this point in time the “three-fifths clause” began to emerge — but how? The issue at hand was congressional representation. The number of representatives in the lower chamber — i.e., the House of Representatives — would be determined by the population of a state: but how to count that population? The slaveholders wanted the slaves to be counted, because in this way, the slaveholding states would have greater representation in Congress, and could thereby block the abolition of slavery. The desire of the slave-owning states to have slaves counted among the population, for the purposes of congressional representation, in no way acknowledged the humanity of the slaves: on the contrary, it was designed to ensure the perpetuation of the institution of slavery.
The abolitionist states, on the other hand, desired that the slaves not be counted among the population for the purposes of congressional representation, because the slaves would, as long as they remained slaves, never vote, and never enjoy the freedom of voicing their political opinions. The abolitionists, then, wanted to deny the enumeration of slaves, not in order to deny their humanity, but rather to ensure that the slaveholding states didn’t obtain an artificially large representation in Congress; lacking the numerical advantage, the slaveholding states would not be able to encourage the continuation of the institution of slavery into the future.
The abolitionist majority found itself outmaneuvered by the slaveholding minority. Yet, because they abolitionists refused to allow the slaveholders to obtain a perversely large congressional representation, they planted the seeds for the ultimate abolition of slavery: The “three-fifths compromise” created a sort of instability within the constitutional system, which ensured that the question of slavery and of its abolition would remain present in the minds of the body politic.
Unable to achieve the abolition of slavery at the Constitutional Convention in Philadelphia in 1787, the abolitionists assured the eventual abolition of slavery by building the paradox into the Constitution. The question of abolitionism was hardwired into the Constitution: as a question, not a statement — a question, because of the “three-fifths clause” which was neither a “one” nor a “zero” but an unsettling in-between sum which created a disequilibrium in the in the infant republic.
Alexander Hamilton was both a passionate abolitionist and a passionate advocate for a strong union among the thirteen states. He was confounded and perplexed.
Not only abolitionism, but also immigration, moved Hamilton, as Ron Chernow writes:
On August 6, the Philadelphia convention reconvened to begin the arduous task of refining the Constitution. Hamilton, back by August 13, dove into a debate that passionately engaged him: immigration. He opposed any attempt to restrict membership in Congress to native-born Americans or to stipulate a residency period before immigrants could qualify for it.
It was a few days later that the convention produced the “three-fifths compromise.” Hamilton was away from Philadelphia and away from the convention for several days at that time.
Hamilton’s upset over this tolerance of slavery may have been deeper than we know. There has always been some mystery as to his whereabouts after his August 13 statement on immigration. In fact, he had returned to New York for a meeting of the Manumission Society. Hamilton may have apprised members of the impending decision on slavery in Philadelphia, because they delivered a petition to the convention to “promote the attainment of the objects of this society.” After the slavery compromise in Philadelphia, Hamilton stepped up his involvement in the Manumission Society. The following year, even while pouring out fifty-one Federalist essays, serving in Congress, and campaigning to ratify the Constitution, he attended a meeting of the society that again protested the export of slaves from New York State and the “outrages committed in digging up and taking away the dead bodies of Negroes buried in the city.” Later in the year, Hamilton was appointed one of four counselors of the Manumission Society.
Yet Hamilton would ultimately embrace and defend the “three-fifths clause,” because it created an instability which ensured that the question of abolitionism would ultimately be addressed.
From the abolitionist point of view, the three-fifths clause politically destabilized the institution of slavery, ensuring that it would not enjoy a comfortable place in the republic, but rather always come to attention to be questioned and re-examined.
Slaveholding states wondered how their human property would be counted for congressional-apportionment purposes. Northern states finally agreed that five slaves would be counted as equivalent to three free whites, the infamous “federal ratio” that survived for another eighty years. The formula richly rewarded the southern states, artificially inflating their House seats and electoral votes and helping to explain why four of the first five presidents hailed from Virginia. This gross inequity was to play no small part in the eventual triumph of Jeffersonian Republicans over Hamiltonian Federalists. In exchange, southern states agreed that the importation of slaves might cease after 1808, feeding an illusory hope that slavery might someday just fade away. Without the federal ratio, Hamilton glumly concluded, “no union could possibly have been formed.” Indeed, the whole superstructure erected in Philadelphia rested on that unstable, undemocratic foundation.
The very irrationality of the “three-fifths clause” ensured that the topic of slavery would not go away. The clause presented a deliberately absurd concept. Its absurdity demanded correction.
The slaveholders could not defend it: if the slaves were three-fifths of a human being, why didn’t they get three-fifths of a vote? or have three-fifths of the rights of a citizen?
The Constitution’s built-in disequilibrium soon had the desired effect of making abolitionism an unavoidable topic. By 1790, “Slavery was gradually fading away in many parts of the” country, and in that year, several Quaker lobbying groups asked Congress to introduce and consider bills which would end the slave trade and even end slavery itself.
In 1787, there had seemed to be every chance that the institution of slavery would die a quiet, natural death. Some of the abolitionists hoped that it would simply fade away. Eli Whitney ensured that it wouldn’t. His mechanical cotton gin changed the economics of cotton and of the South. His invention transformed the combination of slave labor and cotton-based agriculture from marginally profitable to massively so. The cotton gin, invented in 1793 and patented in 1794, reframed the economics of slavery, and thereby reframed the debate about abolitionism.
When slavery suddenly became much more profitable, slaveholders suddenly became much more stubborn in their defense of slavery.
At the same time, slaveholders simultaneously increased in their political influence, because of their increasing wealth, and yet were clearly a numerical minority. With the cotton gin, the owners of large plantations and large numbers of slaves became a clearly-defined economic elite. The majority of the citizens of each state were, however, not slaveholders, and economically disadvantaged in competition with the few but powerful slave-owners.
This was a setback for the abolitionists, who had seemed on the verge of legislative breakthrough.
Historians properly do not engage in speculation about counterfactual scenarios. It is a known pattern that legislative initiatives, if they fail to succeed on the first try, are often reintroduced in Congress every few years. In this pattern, bills often gain additional support each time they are reintroduced, and many bills eventually pass in this way.
Had not Eli Whitney’s cotton gin appeared suddenly and spread rapidly, it is reasonable to wonder whether the Quakers might have reintroduced their bill from 1790 into congress repeatedly at intervals a few years later, gradually gaining support, and eventually passing. Did the cotton gin end the chance of peaceful legislative abolition of slavery?
In any case, the next steps in the narrative are well-known: Andrew Jackson founded the modern Democratic Party in 1828 to protect the institution of slavery, the Republican Party was founded in 1854 as an abolitionist party, and the Civil War resulted.
“The so-called three-fifths clause was an attempt to” undermine the institution of slavery, as historian Ben Shapiro writes. It nearly succeeded in 1790. The Quaker-sponsored bill is evidence. By steps, it did succeed: in 1854 and 1863.
The whole question of popular apportionment rested on whether to count slaves as full people for purposes of representation. To do so would have put the slaveholding south at a significant advantage: they would have counted slaves in their population, not allowed them to vote, then used their increased representation in order to re-enshrine slavery. As James Madison noted, the delegates from South Carolina fought for blacks to be counted as whole people so as to include them “in the rule of representation, equally with the Whites.” The three-fifths compromise was designed to curb the South’s expansionist tendencies with regard to slavery by preventing them from stacking the electoral deck. The Constitution also allowed slave importation to continue until 1808 — but Congress moved in 1807 to end it there.
While the slaveholders had long used violence to assert their claims, the abolitionists had been hesitant to do so. John Brown’s famous raid in 1859 changed that. The long-simmering passions of the abolitionists were about to appear, triggered by the secession of several states.
Then, of course, the United States fought a great and massive Civil War to free the slaves, in which over 620,000 Americans died, nearly half the total number of Americans to die in all wars combined. The economy of the United States was not built on slavery — in fact, the South’s economic power was dismal compared to that of the north, which is why the north was able to overcome the south during the Civil War.
The abolitionist states — those which had a Republican Party majority — were superior in economic power, in technology, and in devotion to the cause of abolitionism. The slaveholding states, where the Democrat Party had the majority, were economically and technologically inferior, and with only lukewarm devotion to the task of defending slavery. While the slave-owners were committed to preserving slavery because it brought them financial gain, they were numerically a small minority even in the slaveholding states. By contrast, the vast majority of the residents of the slaveholding states did not own slaves and did not directly benefit financially from the institution of slavery: indeed, there is a plausible argument that slavery was an economic harm to the non-slaveholding residents of the Confederate States. To be sure, there is also a hypothesis that while they did not benefit directly, they might have gotten some small indirect economic benefit from the institution of slavery. Yet whatever little gain they might thus have gotten, it was more than outweighed by the harm done to them.
In any case, the “three-fifths clause” was not a supportive foundation for slavery, but rather an intentionally wobbly base, on which it precariously sat, and from which it inevitably fell — according to the plan of the founders.
