This post is part of a series to help students of all ages understand the Federalist Papers and apply them to today’s political arguments. The introduction to this series, which contains links to all of the Federalist Papers posts, can be found here.
Federalist Paper Number Fifty-Four addresses the three fifths rule that counts only three fifths of slaves for the purposes of representation in the House of Representatives and for taxation of the states. The opposing views of the north and the south are set forth. Finally the rationale for having the rule of representation and the rule of taxation be the same is explained.
Read Federalist Paper Fifty-Four
Read the fifty-fourth Federalist Paper, highlighting passages that stand out to you and writing notes in the margins. The notes you write in the margins can do one of these things
- Restate the argument Publius makes (Publius is the pen name of the authors)
- State a question you have about the argument
- Give your own opinion of the argument
Discuss Federalist Paper Number Fifty-Four With A Mentor
Now that you have read and highlighted Federalist Paper Number Fifty-Four for yourself read the passages that stood out to us and consider the questions we ask about them. The questions can be answered in writing on paper or they can be approached as a discussion between two or more people. If you answer them in writing we recommend that you trim the paper down so it will fit inside the pages of your copy of the Federalist and that you tape them into the book on the page where the quote under discussion is located. Post-it Notes would be perfect.
What the Constitution Says About the 3/5ths Rule
Before we begin this discussion it will be helpful to read the passage of the Constitution that sets forth the three-fifths rule. From Article I, Section 2:
“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.”
So for the purposes of determining how many Representatives each states gets in the House of Representatives and for the purposes of determining the amount each state is taxed, free persons and indentured servants will be counted once each, Indians will not be counted at all, and 3/5ths of the slaves will be counted.
Not incidentally the number of electors, who cast votes for president of the United States on behalf of their states, are also determined by the census and the same apportionment as is given to the representatives. So the states power in the federal government, both in the House and in the Presidency is determined by how the census count is taken.
This clause for the counting of slaves was a hotly contested item in the Constitution at the time of the Convention in 1787.
Most slaves were in the South and most slaves were black (but not all). Indentured servants were mostly white, but also black. And there was a large population of free blacks in both the north and south. So the Constitution divides people not based on the color of their skin, but on their legal situation. Further the Constitution, in this very clause, defines slaves as “Persons” with a capital P, the same terminology used for free Persons. Finally most people when paraphrasing this bit of the Constitution say that the Constitution counts blacks as three fifths of a person, but it actually says that three fifths of slaves are to be counted, an important distinction.
James Madison wrote, “[The Convention] thought it wrong to admit in the Constitution the idea that there could be property in men.” (Records of the Convention, August 25, 1787). The Founders were very careful in their wording of the Constitution to avoid the very institutionalized racism that they are now accused of. For more about the Founders views on slavery and how the struggle for their own freedom turned the thoughts of Americans to the plight of the slaves visit Wall Builders.
This is not to say that attitudes toward blacks were not despicable or that blacks were not targeted for slavery by whites. It was and they were. But the political realities of the times were that if there was to be a union then a compromise had to be reached. The South, in particular North Carolina, South Carolina, and Georgia, wanted all of the slaves counted so they could increase their power in the federal government. The North wanted none of the slaves counted so their power could be augmented in the federal government and also because they felt it was immoral to give slave holders the votes of those they had enslaved.
The result was that the South had augmented power in the federal government and prevented the ending of slavery until 1865. On the other hand the North would never have been able to elect President Lincoln if all the slaves had been counted. It is conceivable that even today slavery would persist. Its official end around the world was influenced and enforced by American and English hegemony. Further, if there had never been a compromise the union would have failed. There would have been at least two countries instead of a single united country and again, slavery would have existed much longer, possibly even to the present day in the South.
- Do you think a Union was important enough to compromise on this issue?
- Do you think the three-fifths rule slowed down or sped up the ending of slavery?
- What moral problem existed that caused this disagreement over the counting of slaves?
Slaves Should Not Be Counted At All
Now back to Federalist Paper Fifty-Four. First Publius presents the argument given by the northern states against counting slaves at all.
“ . . . does it follow, from an admission of numbers for the measure of representation, or of slaves combined with free citizens as a ratio of taxation, that slaves ought to be included with free citizens as a ratio of taxation, that slaves ought to be included in the numerical rule of representation? Slaves are considered as property, not as persons. They ought therefore to be comprehended in estimates of taxation which are founded on property, and to be excluded from representation which is regulated by a census of persons.”
Slaves were considered under state laws to be property. No slaves could vote. No slaves were protected from human rights abuses or had access to courts of law. They were not citizens and could not enjoy any of the privileges or rights of citizens. Therefore they should not be counted in a census for the purposes of representation in congress since only citizens are represented.
- Given what you know about American history and the different attitudes of the north and south to slavery why do you think the northerners didn’t want to count slaves at all for representation?
- What argument did they use to try to keep slaves from being counted? From a legal, and not moral, position do you agree with the argument that slaves, as property, should not have been counted as persons for representation?
Neither the northerners nor the southerners were entirely honest about their reasons for the way they thought slaves ought to be counted. The real reasons involved a power struggle, but the North could hardly come out and say “We want to not count the slaves so that your power will be reduced and we can control congress and abolish slavery.”
Slaves Should Be Counted Because They Are Not Only Property
Publius spends most of the time laying out the case for the South. He puts in quotes the southern argument so the reader understands these arguments are not from Publius, but are from another.
“We subscribe to the doctrine,” might one of our Southern brethren observe, “that representation relates more immediately to persons, and taxation more immediately to property, and we join in the application of this distinction to the case of our slaves. But we must deny the fact that slaves are considered merely as property, and in no respect whatever as persons. The true state of the case is, that they partake of both of these qualities: being considered by our laws, in some respects, as persons, and in other respects as property.”
The Southerners agree that only persons should be represented in government and that property should be taxed, but they assert that slaves are both persons and property and so should be counted for representation as well as taxation. The “southerner” goes on to explain that while slaves are forced to work for a master and can be beaten at the will of the master and have no standing in a court of law (like property) their lives are also protected by the law so that even their masters cannot kill them without consequences and that if a slave kills another he is held accountable before the law (like persons).
- Do you agree that the bare protections of the southern law for the life of slaves made them legally persons or that southerners perceived the slaves as persons?
Slaves Are Inhabitants
“ . . . slaves, as inhabitants, should have been admitted into the census according to their full number, in like manner with other inhabitants, who, by the policy of other states, are not admitted to all the rights of citizens.”
The Southerner goes on to argue that since other mere inhabitants of the states are counted for the census slaves also ought to have been counted fully.
- Today we have some inhabitants, people who are not full citizens in that they cannot vote, who are counted for the census and others who are not counted for the census. For example, children and felons cannot vote, but they are counted. Foreigners who reside in the United States either legally or illegally cannot vote and are also not counted in the census. Is being an inhabitant enough to be counted for apportionment purposes? What makes someone a citizen?
Slaves Are Not Inhuman But They Are Not Fully Human Either, says the Southerner
“Let the compromising expedient of the Constitution be mutually adopted, which regards them as inhabitants, but as debased by servitude below the equal level of free inhabitants; which regards the slave as divested of two-fifths of the man.”
Our imaginary Southerner is here urging the Northerners to accept the compromise. Here the false argument that the Constitution removes a portion of the inherent value of slaves as people is first put forth. Presumably this was spoken of at the Constitutional Convention since Publius, who was present at the Convention, is repeating the arguments of the Southerners.
- Do you think the Constitution embraces slavery and perpetuates the devaluing of black people because of this clause? Explain your position.
Publius Decides To Side With The South
Speaking of the Southern argument, Publius says:
“. . . although it may appear to be a little strained in some points, yet, on the whole, I must confess that it fully reconciles me to the scale of representation which the convention have established.”
- Publius spent the bulk of this paper laying out the argument for the South. Why do you think he does this and why do you think he wants to convince New York to go along with this proposal, though he personally agrees with the Northern position?
It may seem like the north gave up everything and the south nothing. But in fact, the Constitution confirms the personhood of slaves, an important point in the struggle to end slavery. Also, the south did not get all the slaves counted fully as they wanted to. Blacks who were free or indentured servants were always counted as whole persons and were full citizens under the Constitution. More importantly the union was preserved and so the force of law would act on the southern slave holders at whatever point in the future slavery could be successfully fought.
The Census Determines Representation and Taxes
Finally Publius addresses the reason the rates of taxation and the rates of representation are the same.
“In one respect, the establishment of a common measure for representation and taxation will have a very salutary effect. As the accuracy of the census to be obtained by the Congress will necessarily depend . . . on the co-operation of the States, it is of great importance that the States should feel as little bias as possible to swell or to reduce the amount of their numbers . . . By extending the rule to both objects, the States will have opposite interests, which will control and balance each other, and produce the requisite impartiality.”
States might be tempted to report higher numbers for their census than actually exist since the number of representatives they get in congress (and therefore their power) is increased by a larger population. On the other hand states might be tempted to under report their numbers in the census because they are taxed based on the number of citizens in the state.
The Constitution was designed so that the federal government would have as little contact with individual citizens as possible. So the states were taxed by apportionment. There was no federal income tax and no IRS until FDR and the 1930s when the sixteenth amendment was passed allowing direct taxation of individuals by the federal government.
Since the states were benefited by both under-reporting and over-reporting their numbers in exactly the same proportion it was hoped that the census would remain honest. So this was yet another check and balance in the Constitution.
This was an item of discussion since apportionment in taxes really isn’t quite fair. The various states did not have wealth directly related to the number of people in their borders. Idaho and Wyoming do not have the same average wealth for their citizens as Massachusetts or Connecticut because of differences in natural resources, geographic position (Idaho and Wyoming are both landlocked for example), history, infrastructure, and other factors. But the benefits of balancing the representation with taxation seemed to outweigh the economic considerations especially since the tax burden on states was expected to remain low.
- Half of the balance was taken from the census count with the passing of the sixteenth amendment. So now the states are only benefited, and not hurt, by larger census numbers. Do you think this circumstance has affected the census or the desire of states to have persons, like illegal aliens and foreign inhabitants, counted?
- Do you think the federal government should tax states or individuals? Which is more fair economically speaking? Which is more fair politically speaking? Which protects the rights of the people more effectively?
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