By Marilyn M. Singleton, MD, JD                                                                                                              February 3rd, 2020

“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 bond to Service for a Term of Years [i.e., indentured servants], and excluding Indians not taxed, three fifths of all other Persons [i.e., slaves].”  U.S. Constitution, Art. I, Sec. 2.

In the spirit of fake news, Black History Month provides a forum for news pundits to lament that the Founding Fathers thought the relative worth of black persons was three fifths of a person. They should (and likely) know better. The Three-fifths Clause is not about black or white but was a formula for counting slaves for purposes of congressional representation and taxation. Clearly slavery dehumanizes the enslaved, but the Three-fifths Clause was a compromise that was a partial win for abolitionists.

Free black persons existed long before the Constitution was written. The first Africans brought into captivity to colonial Virginia in 1619 became indentured servants who were freed typically after 7 years just as their white counterparts. Other slaves were freed when they converted to Christianity.

The proposed Constitution allowed one representative to Congress for each 30,000 inhabitants in a state, in contrast to the existing Continental Congress, where each state had an equal vote. The initial suggestion at the sometimes contentious 1787 Constitutional Convention was that representation be based on all free persons. But slaves were half the population in some southern states. Despite slaveholders counting slaves as their property, they also wanted to count slaves as if they were free inhabitants (i.e., “whole persons”), thus increasing the South’s representation in Congress—and essentially be rewarded for having more slaves. Cleverly, Northern abolitionists argued that if the South could count slaves, then the North should be able to count livestock for purposes of representation.

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To resolve the issue, liberal Pennsylvania delegate and future Supreme Court justice James Wilson proposed the Three-fifths clause as a necessary compromise to gain the South’s support for the new Constitution. The three-fifths of a vote provision applied only to slaves, not to free blacks in either the North or South. Thus, the much-maligned clause actually benefitted the abolitionists and the slaves by limiting the pro-slavery States’ representation in Congress.

The first U.S. census in 1790 showed a population of about 4 million Americans. Nineteen percent were black and about 13 percent of those black Americans were free. By 1860, as more states abolished slavery and slaves were voluntarily freed or purchased their freedom (manumission) in the South, about a half million free blacks lived in the U.S. with more in the southern states than in the North.

Electorally, slave status mattered. Free blacks could hold office in some states and could vote. As Justice Benjamin Curtis noted in his dissent in the infamous 1856 Dred Scott decision, “Several of the States have admitted persons of color to the right of suffrage, and, in this view, have recognized them as citizens, and this has been done in the slave as well as the Free States.” Black votes were not trivial: black votes helped to ratify the new Constitution and in Baltimore, Maryland in the 1700s, more blacks than whites voted in elections.

Today’s “woke” social justice warriors rail that the racist Founding Fathers should have abolished slavery altogether right then and there. Our Founders would have preferred to do so. Great Britain was making boatloads of money from the slave trade and prevented the abolition of slavery in the colonies. In 1774, at the First Continental Congress, delegates Thomas Jefferson and Benjamin Franklin called to end the importation of slaves by December 1, 1776. This provision was put in the Articles of Association of the Continental Congress. At the January 9, 1776 Second Continental Congress, a resolution to end of the importation of slaves to America was passed. Of course, the 13th through 15th Amendments freed the slaves, gave them full citizenship, and males the right to vote.

Witnessing our current vitriolic political divides over less weighty issues, it is hard to imagine the determination and negotiating skills our Founders’ needed to bring differing philosophies together to form a new country with new values based on liberty for all.

Rectifying our social ills begins with telling the whole truth. Truth #1: The Three-fifths clause was not about the relative worth of a black person. Truth #2: Black people owned slaves (as workers, not family). Truth #3: All white men are not bad—now or 400 years ago.

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BioDr. Singleton is a board-certified anesthesiologist. She is the immediate past President of the Association of American Physicians and Surgeons (AAPS). She graduated from Stanford and earned her MD at UCSF Medical School.  Dr. Singleton completed 2 years of Surgery residency at UCSF, then her Anesthesia residency at Harvard’s Beth Israel Hospital. While still working in the operating room, she attended UC Berkeley Law School, focusing on constitutional law and administrative law.  She interned at the National Health Law Project and practiced insurance and health law. She teaches classes in the recognition of elder abuse and constitutional law for non-lawyers. She lives in Oakland, Ca.