Three-Fifths of a Person

It was a compromise made in the drafting of the U.S. Constitution¹ that “other persons”—that is, enslaved people—should be counted as three-fifths of a person in the census for the purpose of allotting a state’s members in the House of Representatives, votes in the Electoral College, and direct taxes.²

Note that this clause does not mention “slavery,” “slaves,” or any race by name—except Indians, who didn’t count, having their own tribes and nations and, eventually, their reservations outside the jurisdiction of federal and state governments. But everyone knew whom the drafters were talking about: the Africans, brought to this country in chains and bound to their masters as chattel, the same as any cow or pig. And I am sure that many people in the 18th and 19th century assumed, on the basis of their own prejudice, that the three-fifths referred to the subhuman state of these bound people, not worth a whole white man in terms of spirit, understanding, and mental capacity.

But that is not at all the case. The “three-fifths clause” was intended to preserve the representative structure of the new federal compact. Under the Constitution, each state was apportioned two Senators in Congress, regardless of the state’s size or population. That way, every state got an equal say and share in governance. But then each state received a number of Representatives in proportion to its population. That way, individual citizens would get representation in proportion to their presence in the state. A populous state like New York gets two its Senators and, while it started with six seats in the House in 1789—because the whole nation had a much smaller population back then—that number has waxed to 45 seats in 1933-53 and waned to 27 seats today. Meanwhile, Alaska, with a territory about equal to an entire third of the “Lower 48,” gets its two Senators and just one Representative.

The justification for and the reasoning behind the three-fifths clause was that states with large slave populations would get outsized representation in Congress and in the Electoral College if each of those non-citizen, non-voting persons, living essentially outside the body politic, were counted towards representation. The Old South, plus any new states entering with the institution of slavery, would get an excess number of representatives and electoral votes. Since the slaves themselves would have no vote and therefore no say in the election of these representatives apportioned to their number—would not actually be represented by them—and so would not have their own needs and desires heard and presented, this excess of members in the House and the Electoral College would then be under the control of the voting-age white men. And that would give the latter more power and representation than the Constitution intended.

Without the three-fifths clause, the Old South and the slavery it spread to any new states would dominate the Congress and the election of the President. They would have an unfair advantage over the future, no matter which party was dominant in those states.

One could say that the same holds true for the status of women. They were counted in the census but were non-voting (until the 19th Amendment, passed in 1919) and therefore were impaired as citizens. That was an unfortunate oversight of 18th and 19th century minds and prejudices. But for the purposes of state representation in the federal government, the non-voting status of women did not sway the power of any state one way or the other. Women and men were present in roughly equal numbers, and that proportion was unlikely to change drastically with demographics and thus skew a state’s representation.³

The reasoning behind the three-fifths clause would apply today to the situation of open borders and unrestrained, undocumented immigration. Democrats and Progressives tend to favor open borders on humanitarian grounds. Republicans and Conservatives tend to oppose them on grounds of representation. Some people think the Conservative side fears that immigrants from Mexico and Latin America will generally vote for Progressive and Socialist causes. But that would only happen if the immigrants became citizens and acquired the right to vote—which one hopes would happen eventually but will not, in any numbers, happen right away. The alternative, one might believe, is that certain districts could illegally give these undocumented residents ballots and then happen to count them in a blatant violation of election laws. And that would be wrong.

The worse problem is that these undocumented residents would be counted in the decennial census, which currently has no way to differentiate them from citizens with voting rights and visitors holding valid visas, green cards, or other documentation but without the privilege of voting. That is, these undocumented residents will count towards an adjustment of the seats in Congress and votes in the Electoral College for any state in which they settle, but they will not then have the vote to ensure their own representation. They would increase the power of the legal voters in the state, but the state’s newly seated Representatives would have no real cause to hear and present the concerns and desires of the state’s undocumented residents. The latter would be used in a powerplay, the same as the slaves in the Old South if they had been counted one-for-one.

I have another reason for disliking open borders. People coming into this country without some form of official recognition—visa, green card, citizenship—are and will always be subject to restrictive immigration laws and the prospect of punitive deportation for any wrongdoing. Sometimes those laws will be enforced, sometimes not, but the threat will always be there. And that is a fact. But this situation also puts these people in the shadows, living as second-class residents, vulnerable to being bilked and defrauded, finding valid employment only in sweatshops and the gray market, and unable to go to the authorities for redress of wage and hour violations because of their status. This isn’t right. It represents a new kind of slavery.

And if we are going to apportion representation and electoral votes on the basis of non-voting residency, why stop at people? I can foresee a time when issues of environmental vulnerability and human-caused damage require representation for the non-human element, for endangered species and even trees. If we start counting trees along with people—and these days, it wouldn’t totally surprise me—then the world flops over, and states like Alaska and Vermont become the representational and voting powerhouses. But the presumably human representatives who took their seats in Congress would not actually be held accountable by the trees and so would only increase the power of the human voters in those states.

And that just wouldn’t be right—even if you counted a tree as only three-fifths of a person.

1. Article I, Section 2, Third Clause: “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.”

2. Obviously not the federal income tax, which was not imposed until the 16th Amendment, passed in 1909.

3. Unless you counted the territories of the old and wild west, where men usually outnumbered women. But that situation tended to even out with the arrival of civilization—and so of women and families—which generally occurred before a territory could apply for statehood.