Three-Fifths Understanding

The infamous three-fifths clause is back in the news.

The Twittersphere exploded last Wednesday when the GOP nominee for Lt. Governor of Virginia, E. W. Jackson, made this comment:

“Rev. [Charles Wallace] Smith must not have understood the 3/5ths clause was an anti-slavery amendment. Its purpose was to limit the voting power of slave-holding states.”

Jackson has made all sorts of interesting comments, so it is not surprising that some people put the worst possible interpretation on his remarks, suggesting that he was defending the clause. But Jackson was not entirely wrong.

E.W. Jackson

The clause is probably both one of the most well-known and most misunderstood clauses in the Constitution:

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.

In the popular mind, the clause has come to mean that the Constitution considered a slave to be three-fifths of a person, and in a metaphorical sense, that is true. That is not, however, what motivated the clause.

What was actually at issue here was how to deal with the reality that the new government would be a union of states, some of which had done away with slavery (or were in the process of doing so; most northern states did away with slavery gradually) and others which had large numbers of slaves. Since the new House of Representatives was to apportion representatives based on population, the framers needed to decide whether the slave population would be taken into account.

From a modern perspective, it seems simple: just add up the total number of people (or "Persons" in the Constitution's language). In this case (as in so many others for the next six decades), slavery took what should have been an easy question and made it a complicated one. In a legal sense, slaves were property, not "Persons." So northerners argued that they should not be counted for representation at all.

That's right: the anti-slavery portion of the country argued that slaves should not be three-fifths of a person, but zero-fifths of a person. To add to the absurdity, southerners--who otherwise insisted that slaves were not "Persons" any more than horses were--argued that in this instance, and this instance alone, slaves should be counted as whole Persons, equal to every white man, woman, and child.

Each section adopted the convenient argument which would enhance its political power. To get past the impasse, they compromised on three-fifths. So compared to the southern position, Jackson is correct: three-fifths is relatively anti-slavery in that it gave slave states less power in the House than they would have had if slaves were counted as whole Persons. Compared to the northern position, however, three-fifths can only be seen as pro-slavery, since it allowed white southerners to count 60% of their slaves as both Persons and property.

The important question, however, is not whether the three-fifths clause was pro- or anti-slavery. What matters is what this story tells us about the nature of compromise in the American political system.

How do we evaluate such a compromise? From today's perspective, most of us are understandably appalled, and shudder when someone fails to be.

For example, three months ago, James Wagner, the president of Emory, stepped into it. He called "the agreement to count three-fifths of the slave population for purposes of state representation in Congress" an example of "constitutional compromise" which he praised as one of the "[p]ragmatic half-victories [that] kept in view the higher aspiration of drawing the country more closely together."

He was pilloried for those comments, and was forced to issue this statement: "I do not consider slavery anything but heinous, repulsive, repugnant, and inhuman."

Wagner's mistake was not in praising compromise in general, but in holding up this compromise as an example to emulate.

No one, north or south, looks good in this story. No one. The practical business of creating a framework for government brought the Constitutional Convention face-to-face with a fundamentally moral question, one whose very existence exposed the essential, inescapable immorality of slavery: is a slave a Person or property?

Faced with a stark moral choice, the framers side-stepped it and reframed it as merely a practical matter. They split the difference. They compromised.

Today, we rightly recoil from the immorality of this compromise. But this instance should not deceive us into rejecting all compromise.

The American political system is built for compromise. It breaks down when faced with moral questions that do not lend themselves to compromise solutions. That is why the federal government today is in danger of becoming utterly dysfunctional: the GOP has seemingly decided that virtually all compromise is ignoble surrender.

There are times when compromise truly is ignoble. The three-fifths clause seems like one. Today we rightly recoil at the idea that slaves were considered three-fifths of a Person.

But given the two proposals, which one would you choose? Would the north's zero-fifths option have been preferable moral ground? Would the south's blatantly hypocritical stand--that for purposes of political power, slaves were whole Persons, but under state law they were mere property--have been morally satisfying?

No, there was no good moral ground on which to stand. So pervasive was the moral corruption caused by the evil of slavery that it left no good political choices. Everything was tainted by it. The only truly moral choice would have been to abolish it completely and immediately, and few white American leaders took that idea seriously in the late 1780s. And the nation made that choice only after the political system broke down completely and the country descended into civil war.

Most of the decisions government makes, however, don't involve basic moral principles. They engage practical questions, ones where splitting the difference makes good sense. Ideologues who insist on treating every disagreement as one over principles threaten to disrupt the political system and render it as useless on all questions as it once proved on the issue of slavery.

Sen. Ted Cruz (R-TX)

Perhaps the distinguishing characteristic of the Tea Party movement is this reflex to raise every decision to that moral level. The demagogue de jour, Sen. Ted Cruz of Texas, does this as well as anyone. Recently, he has refused to let Senate and House conferees meet to decide on a budget because he is convinced it will lead to a deal to raise the debt limit. Cruz casts this (and virtually every legislative issue) as a matter of "fighting to defend liberty, ... fighting to defend the Constitution."

This is absurd. There is no moral (or immoral) answer to whether (or how much) to raise the debt ceiling.

Political maturity requires knowing the difference between matters of principle and matters of utility. By casting nearly everything as the former rather than the latter, the Tea Party members of Congress show that they lack the most basic judgment needed to govern effectively. And as long as saner members of Congress appease them, they risk making the national legislature utterly unworkable.

Chairman Ron

Six years ago, my colleague Li Qing Kinnison and I led a group of students on a three-week trip to China during the January interim. Everywhere we went, there were signs of American corporations: McDonald's, Pizza Hut, Kentucky Fried Chicken, and my favorite example of all—in Beijing, in the Forbidden City itself, a Starbucks. You could hardly ask for a clearer picture of the triumph of global capitalism.

A Starbucks in Shanghai

The other ubiquitous image, of course, was the leader of the Communist revolution, Mao Zedong. His huge portrait still looms over Tiananmen Square in Beijing, and on t-shirts, posters, and wristwatches.

The contradiction is obvious. Mao was not just a communist, he was a particularly radical one. His hostility to any semblance of capitalist enterprise nearly destroyed China, especially in the late 1950s and mid-1960s. Yet he is still venerated in China, even as the state pursues policies that would (were his body not preserved and on display) have him spinning in his grave.

So what gives? Once historical figures leave the stage, there is an inevitable tendency for the historical record to morph into myth. Memory becomes selective. We forget the part of the record that's inconvenient and elevate what is useful. So the horrors of the Great Leap Forward and the Cultural Revolution disappear, and instead many Chinese remember Mao only as the leader of the revolution that ended decades of political chaos and founded the modern Chinese state.

The reason I note this now is that we are seeing a version of this, albeit a milder one, in American politics today. In the Republican Party, Ronald Reagan has been raised to sainted status. But every day, we see Republicans espousing positions and using tactics that Reagan's actual historical record directly contradicts.

The current debt ceiling debate is a case in point. As president, Reagan requested 17 increases in the debt ceiling. Not only that, but in doing so he spoke in terms indistinguishable from those used today by President Obama. On November 16, 1983, Reagan wrote to the Senate:

[T]he Treasury Department cannot guarantee that the Federal Government will have sufficient cash on hand on any one day to meet all of its mandated expenses, and thus the United States could be forced to default on its obligations for the first time in its history….The full consequences of a default—or even the serious prospect of a default—by the United States are impossible to predict and awesome to contemplate … the Senate must pass this legislation before the Congress adjourns.

In his diary, he was more direct:

Last night the Repub. Sen. very irresponsibly refused to pass an increase in the debt ceiling which is necessary if we’re to borrow & keep the govt. running…. I sounded off & told them I’d veto every d--n thing they sent down unless they gave us a clean debt ceiling bill. That ended the meeting. (The Reagan Diaries, p. 192)

In 1987, Reagan wrote in his diary:

If we don’t have an extension of the debt ceiling by the 15^th we will have to sell gold or default on bonds.  D--n their hides (the Cong.), we’ll default for the first time in our history. Something has to wake those d--n prima donnas up. (The Reagan Diaries, p. 365)

On his radio broadcast that year, Reagan said:

Congress consistently brings the Government to the edge of default before facing its responsibility. This brinkmanship threatens the holders of government bonds and those who rely on Social Security and veterans benefits.

Reagan could not have been clearer: playing political games with the debt ceiling was highly irresponsible. Yet today’s Republicans, who claim to venerate Reagan, are doing precisely that, and some even call President Obama a liar for saying the same things Reagan did. Republican Rep. Joe Walsh of Illinois said:

President Obama, quit lying. You know darn well that if August 2nd comes and goes there is plenty of money to pay off our debt and cover all social security obligations. And you also know that you and only you have the discretion to make those payments.

The reason we have no deal is that Republicans refuse to entertain any compromise that includes any increase in tax revenues. But Ronald Reagan signed 11 bills raising taxes (more times than he cut them). Republicans today insist that no deal that raises any revenues, in any way, is acceptable—even if it is eliminating tax subsidies for corporations, even if those new revenues get in return tremendous spending cuts.

In 1982, writing in his diary of Rep. Jack Kemp’s opposition to one of those tax increases, Reagan said: “He is in fact unreasonable. The tax increase is the price we have to pay to get the budget cuts.” (An American Life, p. 321)

Reagan, for all of his conservative principles, was an inveterate compromiser. In his autobiography, he denounced the "radical conservatives" when he was California governor for whom "'Compromise' was a dirty word." He was impatient with their zealotry:

they wouldn't face the fact that we couldn't get all of what we wanted today. They wanted all or nothing and they wanted it all at once. If you don't get it all, some said, don't take anything…. If you got seventy-five or eighty percent of what you were asking for, I say, you take it and fight for the rest later. (An American Life, pp. 170-171)

Reagan's description fits well the deal Obama offered Republican Speaker John Boehner: $4 trillion in deficit reduction, with $3 trillion in spending cuts and $1 trillion in new revenue. He offered Republicans 75 percent. They said no, they wanted all or nothing. And they continue to raise the specter of a default that Reagan regarded as irresponsible.

Reagan's record as president would make him utterly unacceptable as a Republican candidate for office today, because Republicans today venerate not Reagan, the historical figure, but Reagan the conservative icon. The latter bears only a passing resemblance to former, and is being used in ways that the historical Reagan explicitly rejected.

Well, it could be worse. He could be on public display in Washington. At least Reagan, unlike Mao, gets to spin in his grave.