By Mark W. Fowler

It is fashionable now among certain leftists to condemn not only the Constitution but also our entire society as racist and the Founding Fathers as unenlightened bigots for owning slaves. Their agenda is to rewrite the Constitution and reorganize society to suit their perspective. This presupposes that the Constitution is insufficient to guide us in our present journey. Others contend that human nature has not changed so much since the founding that the Constitution remains relevant, and that the aspirational nature of the document is more than adequate.

It is easy to judge the slave-owning Founding Fathers from the historical distance of almost 300 years without a full understanding and consideration of their knowledge and circumstances at that time. The Founding Fathers were about initiating a political experiment never before dreamed of. They were attempting to establish a new method by which men might govern themselves to maximize their potential by giving them freedom. Great deference must be given to their judgment at the time, if for no other reason than this was an extraordinary collection of men the likes of which history had never seen before at one time and in one place. Jefferson founded the University of Virginia and wrote the Declaration of Independence. Franklin was a legitimate polymath with wide-ranging interests and capability. He was a diplomat, scientist, and philosopher as well as an essayist. Madison, Jay, and Hamilton wrote “The Federalist Papers,” the philosophical underpinning of our Constitution. These men and others were extraordinarily intelligent and honorable men, despite their flaws. Their accomplishments and stature are unrivaled. No modern politician has their depth or gravitas. Nevertheless, they were human, subject to the same set of flaws all men labor under.

At the time, the United States was not alone in allowing slavery. It was and had been prevalent in every part of the world, including among Native Americans at the time of the arrival of European settlers. Although wrong now in our eyes, it was a tolerated common practice for millennia. In the Marine Corp hymn is a reference to the shores of Tripoli. That reference refers to a fight to free Americans who had been taken captive and held as slaves by the Barbary Coast pirates. Well into the middle of the 19th century and after the Civil War, whites were still being enslaved by the Ottoman empire.

As to the personal qualities of some of the Founding Fathers, Washington is known for the way he treated his slaves and their devotion to him is a manifestation of that kindness. Billy Lee, his personal companion, is known to have interposed himself between Washington and the fighting many times to protect his owner from harm. He did this not because he was told to–Washington did not like it– but because he wanted to.

Notwithstanding the revisionist history as exemplified in the 1619 Project, the United States was not founded for the purpose of promoting slavery. After the weaknesses of the Articles of Confederation became apparent during the Revolutionary War, the first Constitutional Convention was convened for the purpose of rewriting the charter of the national government leading to the adoption of our present Constitution in 1787. Even then, antislavery forces were working to constrain the spread of slavery and the influence of the South. Evidence of the resistance to slavery can be found in the Constitution itself. This essay focuses on one of the more controversial clauses: Article I, Section 2, also known as the “three-fifths” clause.

It is important to remember that the Founding Fathers were trying to knit together a governmental system that had never been in existence before between states, philosophies, and regional economies that had serious conflicting interests. Aligning these interests and forming a nation required diplomacy and compromise. The overarching purpose of the Continental Congress was to create a stronger national structure to provide for a common defense. The inability of the Congress to raise money and men for the Army had been a liability in the Revolutionary War. Only in unity could the collection of states defend itself as a country and become a political force in the world at large. This was a critical factor in the minds of the Founders and their paramount goal. The 55 delegates of the Congress representing 12 of the 13 colonies (Rhode Island did not send delegates) were united in the difficult task of creating a government unlike any other government anywhere in time or history.

Let us now turn to the matter at hand.

Article I, Section 2 of the Constitution deals with the apportionment of taxes and congressional delegates, as both taxes and congressional apportionment were to be based in part on state population. A state’s population was to be determined by counting freemen, individuals bound to a term of service but excluding Indians. Slaves were to be counted, and three-fifths of their total would be added to come up with a population basis. Finally, Indians were not treated as United States citizens, but not taxed either. They were deemed a foreign nation.

The southern states faced a dilemma. If slaves were counted as people, then the South would have far more people and thus more congressmen than allowed for by the “three-fifths” clause and would have significant power relative to the North. This might have prolonged the institution of slavery. On the other hand, this would also cause the imposition of a greater tax burden. The South wanted it both ways — counting slaves as people for determining the size of congressional delegates, but not counting them as personal property. The North faced the opposite issue. Inasmuch as significant opposition to slavery was present in the North, northern delegates wanted to diminish the power of the South in Congress but hold the South to its proportional tax. (The income tax was not in effect then.) Revenue was a direct levy on the states.

The number is not, as is sometimes complained of, a slur on the “worth” of slaves as human beings, per se. Slavey in and of itself was sufficient for that. The number has no legal or political significance today. The effect of this compromise, based on an amendment introduced by Charles Pinckney of South Carolina, was to keep the southern states in the union while diminishing their power relative to the North. That power balance would be strengthened as the nation grew and slavery was banned in the newer states and territories.

There are a couple of more issues. Persons “Bound for a term of service” were to be included in the census count. Who are they? What does that mean? Many poor people came to the United Sates as indentured servants, meaning in exchange for the price of the journey they agreed to be bound for a term, usually seven years, to the person who sponsored them. They were not free to leave this employment unless they could buy themselves out of the contract, and not being “freemen” they were not allowed to vote. Depending on their terms, they might not be able to marry or leave their employment without permission, and they might be subject to whipping for disobedience. Theirs was a harsh and difficult experience from poor diets and unpleasant living conditions at sea to serious constraints on their freedom once arriving in America. But thousands did so just to have the hope of freedom after their end of service. In many ways, these individuals were no different than slaves except for the hope of eventual freedom.

The impetus for ending slavery began with the West, first in England, and then shortly thereafter in the United States. The imprint of antislavery forces can be seen in the Constitution itself, especially in Article I, Section 2. It would take decades for slavery to be ended. That is a shame, but even in the beginning of the Republic there were voices against and fights about the legitimacy of slavery. The legal significance of the “three-fifths” clause was eliminated by the 13th Amendment, which abolished slavery.

In a subsequent essay, we shall look at Lincoln’s genius in applying the war powers clause of Article 1, Section 9 as it relates to the Emancipation Proclamation.

A final note. Article 1, Section 2 also placed a ban on the importation of foreign slaves from other countries as of 1808. While the end of slavery was not imminent, it could be seen on the horizon.