As Christopher F. Petrella reminds us, the Founding was indeed “a racial project whose fulcrum hinges on policies of inclusion and exclusion.” But “race” was evident in the fate of the Electoral College through the politics of slavery. Never at stake were the political rights of African-descended people, which virtually every state denied, even to the free. Instead, it was the sectional balance of power between the slave and free states that constituted the great prize. Ultimately, the compromise on slavery built into the College failed to maintain peace over slavery. Ten slaveholding states defected from the national compact because they believed they had lost control over the government. The U.S. thus took a unique route—circuitous, long, and bloody—to emancipation.
At the constitutional convention that met in Philadelphia’s hot summer of 1787, the distinct interests of widely variable state populations would surely clash: the large versus the small, the eastern versus the western, the commercial versus the agrarian. Over time, though, the contest between slaveholding and non-slaveholding states became paramount. Of the fifty-five delegates who met, nearly half were documented owners of human property. As James Madison, the architect of the convention, reflected mid-way through, “It seemed now to be pretty well understood that the real difference of interests lay, not between the large & small but between the N. & Southn States. The institution of slavery & its consequences formed the line of discrimination.”1
Here’s an example: Unlike in the Senate, representation in the House of Representatives and Electoral College would be based on each states’ population. More populous states would receive more representatives. Delegates from southern states, who represented nearly half of the nation’s population, howled. They well understood that one-third of that number was comprised of slaves. Were these humans not counted for purposes of representation, the population of southern states would drop from 49 percent of the national population to 39.
The three-fifths compromise, written into Article 1, Section 2, resolved the conflict. In computing the population of the states for determining representation, 60 percent of each state’s slave population would be added to its free population. This raised an obvious question: on what rationale were slaves to be counted? If they were being counted as people, how could they be excluded from a government of the people, and dedicated to the proposition that all men were created equal? And if they were being counted as property, why were no other forms of property to be included?
Each section’s interest demanded that it argue against its own principles. Northern delegates were loath to inflate southern power, and so argued that the Constitution should not count slaves at all, since they were property and no other forms of property were to be considered. Asked Elbridge Gerry of Massachusetts, why should “blacks, who were property in the South,” he declared, count toward representation “any more than the Cattle & horses of the North”? Gouverneur Morris of Pennsylvania wondered “upon what principle is it that the slaves shall be computed in the representation? Are they men? Then make them Citizens and let them vote. Are they property? Why then is no other property included?” William Patterson of New Jersey “could regard negro slaves in no light but as property. They are no free agents, have no personal liberty, no faculty of acquiring property, but on the contrary are themselves property, & like other property entirely at the will of the Master.”
Southern delegates, fearful of a free North overwhelming them in the future, argued that since representation was to be based on population, the slaves should be thought of as people; each should thus be considered as a full person, despite being denied basic rights. Pierce Butler of South Carolina responded that the matter at issue was the relative wealth of the states. Because “the labour of a slave in S. Carola. was as productive & valuable as that of a freeman in Massts.,” he believed that “an equal representation ought to be allowed for them in a Government which was instituted principally for the protection of property.”
The founders’ efforts to create a more perfect union foundered here, on this fundamental issue of whether fellow humans could be the property that government existed to protect. It’s not that many founders didn’t oppose slavery in theory. Gouverneur Morris declared it “a nefarious institution” and “the curse of heaven,” while Maryland’s Luther Martin deemed the importation of slaves “inconsistent with the principles of the revolution and dishonorable to the American character.” Martin held slaves at the time, as did others, like George Mason and James Madison, who also disavowed aspects of slavery at the convention.
Their commitment to union, though, overmastered their commitment to liberty. Southerners whined and threatened; northerners temporized and accommodated. William R. Davie of North Carolina declared that “the business was at an end,” for his state “would never confederate” without slave representation. Finally, they agreed that each enslaved human would count toward three-fifths of a full person for purposes of representation only. Gouverneur Morris capitulated, conceding that “it is in vain for the Eastern States to insist on what the Southn. States will never agree to”; he had come “to form a compact for the good of America.” Hugh Williamson of North Carolina captured the mood, declaring “that both in opinion and practice, he was against slavery; but thought it more in favor of humanity . . . to let in South Carolina, and Georgia, on those terms than to exclude them from the Union.” Southern delegates had successfully ransomed the union in exchange for constitutional protections of slavery.
Their decision had pernicious and far-reaching effects. As critics of southern power understood, the compromise artificially inflated the South’s influence in the House and Electoral College from the founding of the nation to the Civil War. In the first Congress, southern states were apportioned 30 of 65 seats in the House (46%). Without the three-fifths clause, the South would have been apportioned only 18 seats in a smaller House of 44 seats (41%). In the first Congress, then, the three-fifths clause accounted for an 11% bonus in southern power.
In the Electoral College, the small-state bonus and the federal ratio combined again to grant the southern states disproportionate power. Under 1788 apportionment, southern states commanded 42 of 91 electoral votes (46%), despite being home to only 40 percent of the national free population. In the South, then, each individual commanded a larger share of each electoral vote than in the North — 107% of the national average, compared to the North’s 96%. And after reapportionment under the first federal census (1790), each electoral vote in the South represented only 20,525 people, while each in the North represented 25,590, a difference of 25%. Under the apportionment for 1792, each free southerner’s share of an electoral vote was 113% of the national average, while the comparable figure for northerners’ was only 91%.
For the next seventy-eight years, the three-fifths clause would exercise extraordinary and far-reaching effects on American politics. In no other slaveholding society of the Atlantic was any slave power ever given such an enormous gift.