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.

"Read the History"

Last week, a reporter asked President Obama the inevitable question: was his administration like that of Richard Nixon? That the question was so predictable made it no less absurd. "I’ll let you guys engage in those comparisons," Obama replied. "And you can go ahead and read the history, I think, and draw your own conclusions."

Of course a historian will like his advice: "read the history." The president's problem is that people do not know the history of Watergate and are unlikely to read it. (For those who are interested, Elizabeth Drew has a nice summary of Nixon's misdeeds.)

Since the early 1970s, almost every case of any kind of misbehavior in the political realm gets saddled with the Watergate comparison, and just about every comparison to Nixon and Watergate ends up being silly (for example, the case of Wisconsin Governor Scott Walker's phony Koch brothers tape as I noted here).

Why do we repeatedly do this? The problem, as I see it, is in the name: "Watergate." By assigning that single word to the Nixon administration's many crimes, we reduce them to something small and petty. They were anything but that, but most of us don't know it.

For Americans born after the 1960s, the term "Watergate" is likely little more than a synonym for political scandal.  Even those (like me) with some memory of the scandal are unlikely to remember more than a few basic facts: a group of thugs associated with the Nixon re-election campaign stupidly broke into the Democratic headquarters and got caught, Nixon panicked, tried to cover it up, and then was done in by the foolish efforts to cover-up an incident that, in the end, was really no big deal.

In a perfect example of that flawed conventional wisdom,  Newt Gingrich, when asked about the president's recent troubles, said: "It's always the cover-up that kills you."

That's simply wrong, but you hear it whenever there is a new Washington "scandal."

What it neglects is this: Nixon had plenty he needed to cover up. I've never thought that Nixon ordered the break-in at the Watergate hotel, and to this day no definitive evidence shows that he did. The important fact, however, is that that does not matter. Nixon's motive for the cover up was that the men involved in the break-in were involved in plenty of other nefarious activities, ones that Nixon did know about and often did order. The burglars answered to people close to Nixon who had direct knowledge of the president's involvement in numerous criminal activities.

Nixon's plan was to throw the burglars under the bus, but bribe them to keep quiet. It didn't work. They talked, and then others began to talk too--most notably Nixon's lawyer, John Dean. (Dean is on record saying that nothing going on today approaches the seriousness of the Nixon years.) That led to the revelations of widespread abuse of power that finally forced Nixon from power.

The Nixon of the common understanding of Watergate was stupid, or crazy, or both. I reject that interpretation. Nixon was many things, but stupid is not one of them. As the pressures of the Watergate scandal grew, one can make the case that he may have become mentally unhinged. But the actions that forced him from office were done when Nixon was in full command of his faculties. They reflected who he was. One's actions usually do.

Perhaps we will find that a secretly Nixonian Obama gave orders that the IRS screw anyone associated with the Tea Party (if so, they did a terrible job of it--none of the organizations subjected to extra scrutiny were denied tax-exempt status). Maybe we'll learn that he became so obsessed with leaks that he suggested poisoning reporters, as Nixon suggested should be done to Jack Anderson.

But it is far more likely that we'll find that this brouhaha has been just another uninformed use of the Watergate analogy. If we read the history.

Political Targeting, Unconscionable Delays, Harassing Questions

Have you heard about the scandal in Washington? Turns out that people are being targeted for their political beliefs. People in positions of authority are abusing their power. For no good reason (other than political animus) the powerful are imposing unconscionable delays on simple requests. Applicants are being forced to answer an absurd number of questions by out-of-control, power-drunk people in government.

But I'm not talking about the IRS. I'm talking about Republican Senators.

Recently, the Senate finally confirmed the nominee to head the Privacy and Civil Liberties Oversight Board.

It took them 510 days to do it.

President Obama has nominated Gina McCarthy to head the EPA. According to a New York Times report, Republican Senators have submitted 1,100 questions for her to answer. Treasury Secretary Jack Lew received 395 questions from Republicans (compared to 49 questions from Democrats to George W. Bush's Treasury nominee).

The committee considering Ms. McCarthy's nomination has been unable to vote on it because no Republican member of the committee will show up for a meeting, denying it a quorum.

The IRS officials who used search terms to identify conservative organizations for extra scrutiny were obviously wrong to do so. But it is more than a little ironic to hear Republicans loudly denounce as a scandalous abuse of power harassment tactics that they regularly use to deny the president his nominees.

This is not "advise and consent" by any reasonable definition of that phrase. It is pure obstructionism.