Smith discusses some controversies over slavery during the framing of the Constitution, especially the three‐​fifths clause.

George H. Smith was formerly Senior Research Fellow for the Institute for Humane Studies, a lecturer on American History for Cato Summer Seminars, and Executive Editor of Knowledge Products. Smith’s fourth and most recent book, The System of Liberty, was published by Cambridge University Press in 2013.

In a parliamentary speech delivered on May 22, 1775, the Irish statesman Edmund Burke attempted to explain why a “love of freedom” was so strong among Americans, and why this sentiment was especially evident among Southerners. If the “spirit of liberty” was generally more prevalent in the South than in the North, this was largely because “in Virginia and the Carolinas they have a vast multitude of slaves.” Burke explained this seeming paradox by claiming that those who experience slavery first‐​hand on a daily basis are more apt to appreciate the benefits of freedom and not take it for granted. Free people in a slave society “are by far the most proud and jealous of their freedom. Freedom is to them not only an enjoyment, but a kind of rank and privilege.”

Southern delegates to the Constitutional Convention (especially those from South Carolina and Georgia) brought this spirit of liberty with them to Philadelphia. They insisted that any federal government established by a new constitution must respect and protect their property rights. The problem, of course, was that those delegates viewed slaves as a type of property, so they wanted assurances that the new constitution would not threaten the institution of slavery. But many of the delegates were opposed to slavery, including some slaveholders from Virginia, and a few roundly condemned the “peculiar institution” on the floor of the Philadelphia Convention.

None of the antislavery delegates called for a condemnation or prohibition of slavery to be written into the Constitution. This would have been a futile, utopian gesture, one that would have caused the Deep South bloc to desert the Convention and eliminate any chance of those states joining the Union. After Gouverneur Morris, an antislavery delegate from Pennsylvania, said in a speech that slavery is “a nefarious institution—It was the curse of heaven on the States where it prevailed,” southern delegates refocused delegates on the primary purpose of the Convention. They pointed out that the purpose of a new constitution was to forge a political union, not a moral union, among the states. Moral considerations should be left to the individual states, not to the national government.

In his defense of the slave trade, which even some proslavery advocates found repulsive, John Rutledge (South Carolina) stated: “Religion & Humanity had nothing to do with this question. Interest alone is the governing principle with Nations.” Charles Pickney (South Carolina) backed up Rutledge by insisting that South Carolina would never accept vesting Congress with the power of “meddling with the importation of negroes.” Rutledge warned that “the true question at present is whether the Southern States shall or shall not be parties to the Union.” Historian William M. Wieck was exactly right when he wrote (The Sources of Antislavery Constitutionalism in America, 1760–1848, p. 73): “[F]or the framers, the highest good was national union. For this they sacrificed all other considerations, including the well‐​being of black Americans.”

The need to compromise on slavery for the sake of a union, even at the expense of violating human rights, was clearly understood by all sides. Consider the following remarks by one of the Convention’s most strident opponents of slavery—the eminent legal philosopher James Wilson—as reported in James Madison’s Notes of Debates in the Federal Convention of 1797. In debates over the three‐​fifths rule (or “federal ratio”), according to which slaves would be counted as three‐​fifths of a person when computing the number of representatives allotted to a state in the House of Representatives, Wilson’s remarks are recounted as follows:

Mr. 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 on an equality with White Citizens? are they admitted as property? then why is not other property admitted into the computation? These were difficulties however which he thought must be overruled by the necessity of compromise.

Here is the three‐​fifths clause, as it appears in Article I, section 2.

Representatives and direct Taxes shall be apportioned among the several States which may be included with 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 debate over proportional representation became so heated that it nearly brought the Convention to a premature close. Slaves in the major slave states comprised around 40 percent of the population, and slave labor generated an enormous amount of wealth. Proslavery delegates feared that northern representatives would use their superior numbers to severely restrict or even abolish slavery, so they sought political equality by demanding that slaves be factored in when computing numbers in the House of Representatives. Some of these delegates demanded that slaves be counted as full persons, whereas some antislavery delegates demanded that they not be counted at all. This debate was complicated by differing views about the nature of representation. Should representation be determined by population or by wealth (as found in some states)? The three‐​fifths rule, which had been used under the Articles of Confederation to determine requisitions, was finally accepted as a compromise. Note that the three‐​fifths rule is applied not only to slave representation but to “direct taxes” as well. The delegates expected that no direct taxes would be levied by the federal government, at least not for a long time to come, so this provision served as a “fig leaf” that enabled antislavery supporters of the Constitution to present the inclusion of slaves as three‐​fifths of a person as a tradeoff, in effect. If slaves were to be counted in part when factoring the number of representatives, they were also to be counted when computing direct taxes, even if the chances were virtually nil that the federal government would ever impose significant direct taxes. As one observer put it, the national government would never be able to extract money from Americans by reaching into their individual pockets. Much more efficient was to get their money through imposts, duties, and similar methods.

The three‐​fifths rule caused considerable problems for antislavery advocates who wished to justify the proposed Constitution to their constituents. Consider James Madison’s strained defense of this provision in the Federalist Papers, No. 54. This was not Madison at his finest. His grasp of philosophical principles was too firm to allow him seriously to argue that slaves could be simultaneously viewed as both persons and property, so he hedged by presenting a justification that “one of our southern brethren” might present. Here is part of what Madison had to say.

[W]e must deny the fact that slaves are considered merely as property, and in no respects whatever as persons. The true state of the case is, that they partake of both these qualities; being considered by our laws, in some respects, as persons, and in other respects, as property. In being compelled to labor not for himself, but for a master; in being vendible by one master to another master; and in being subject at all times to be restrained in his liberty, and chastised in his body, by the capricious will of another, the slave may be appear to be degraded from the human rank, and classed with those irrational animals, which fall under the legal denomination of property. In being protected on the other hand in his life & in his limbs, against the violence of all others, even the master of his labor and his liberty; and in being punishable himself for all violence committed against others; the slave is no less evidently regarded by the law as a member of society; not as part of the irrational creation; as a moral person, not as a mere article of property. The Federal Constitution, therefore, decides with great propriety on the cases of our slaves, when it views them in their mixt character of person and property. This is in fact their true character.

After presenting additional arguments for the three‐​fifths rule, Madison concluded:

Such is the reasoning which an advocate for the southern interests might employ on this subject: And although it may appear to be a little strained in some points, yet on the whole, I must confess, that it fully reconciles me to the scale of representation, which the Convention have established.

It is disheartening, to me at least, to see someone of Madison’s brilliance stoop to this kind of sophistry. But this is not the only instance in the Federalist Papers in which Madison and Alexander Hamilton were less than sincere in an effort to get the Constitution ratified.

I have heard several prominent conservatives suggest that the U.S. Constitution was divinely inspired. If so, the Divinity must have been in a cold‐​hearted mood during the nearly four months of debates and deliberations, at least so far as slaves were concerned. Some parts of the Convention were as cynical as it is possible to get. For example, when some Virginians supported an eventual ban on the slave trade, a delegate from the Deep South replied that their opposition was not based on moral principles. Rather, to ban the importation of slaves (which the Constitution prohibited for 20 years and reinforced with a stipulation that this provision could not be amended) would make slaves scarcer and thereby boost their market price. This would greatly benefit Virginians, who had a surplus of slaves, at the expense of the Deep South, where slaves died off relatively quickly in the miserable rice paddies and so were in continuous need of resupply. Thus would Virginians profit if the slave trade were banned, because those states in need of fresh slaves would need to pay higher prices.