Three-Fifths: Slavery and the Constitution

Interior, slave pen, Alexandria, Va.Interior, slave pen, Alexandria, Va. (Photo: NYPL Digital Collections)
From the Editors…

There is currently a dust-up in political and historical forums over whether or not the Constitution sanctioned slavery or was an anti-slavery document. It is heated, and personal, and must, to many people, seem arcane. Who really cares, today, whether or not the Founding Fathers technically saw the nation as one based on slavery, when the reality was that the Constitution permitted the institution? Slavery existed before the American Revolution, it expanded afterward, and Americans had to fight a four-year war that cost more than $5 billion and 600,000 lives to end it.

So why does this issue matter so much?

It is really a fight about politics, and the nature of modern-day America.

Princeton professor Sean Wilentz launched the fight with an op-ed in the New York Times on September 16 shortly after Bernie Sanders said that the United States was “created…on racist principles.” Wilentz, a long-time Clinton supporter, vehemently disagreed. He insisted that the Constitution, which established the nation, was anti-slavery because it kept slavery a local, rather than a national, institution.

The larger question at stake in this argument is about whether or not America needs to address a history of inequality that is knit into the fabric of our society, or whether the problems we see today are largely policy issues that are not part of the nation’s fundamental make-up. This translates to politics because Sanders has been a more vocal supporter of the Black Lives Matter movement than Hillary Clinton has been. At a more general level, though, it is a fight about how to incorporate new voices into a discussion about America’s future.

We’re History believes the best way to address these questions is by looking at what, exactly, happened in the past. Today Professor Mary Sarah Bilder from Boston College Law School, the author of a new history of Madison’s Notes, explains James Madison’s relationship to the institution of slavery, and shows how that relationship was reflected in the Constitution.

On the tour of Madison’s home, Montpelier, the tour guide talks about slavery. Looking over the gently rolling acres of the Virginia plantation, the reality of Madison’s involvement in slavery is impossible to escape. But in the popular imagination, Madison is one of the few constitutional framers often left free from the taint of slavery. It is this trope Sean Wilentz picked up in his recent New York Times op-ed. But this image of Madison is a mistake. He was not an antislavery hero.

Madison grew up the son of a Virginia plantation owner with approximately 100 enslaved people. He knew that slavery stood against the ideals of the American Revolution. But he nonetheless took steps to perpetuate it and its power.

In 1783, Madison showed that he accepted slavery as part of American society. When the Confederation Congress was arguing over how to count enslaved people in calculations to raise much needed revenue, Madison’s legislative diary from those days portrayed the three-fifths ratio as his solution. He suggested “Slaves should be rated as 5 to 3” because of the “property difference between the labor and industry of free inhabitants, and all other inhabitants.”

At the Constitutional Convention in 1787, Madison pushed for a new Congress with proportional representation in both houses based on the three-fifth clause. Virginia gained the most from this bicameral proportional representation. If enslaved people had not been counted, Virginia’s population of 454,983 (1790 census) was approximately the same size as the other two large states, Massachusetts and Pennsylvania. But an additional 292,627 enslaved people, nearly half of the enslaved population in the United States, lived in Virginia. With enslaved people – who were denied freedom, legal autonomy, voting and political rights – counted, Virginia would be the single largest political power in national politics.

Initially the Convention favored the plan. But small states recognized that a government based only on proportional representation would leave them subject to the power of Virginia and other large states. In late June, Connecticut’s Oliver Ellsworth proposed the compromise on which our current Congress is based. One house would be based on proportional representation; the other would be based on equal state suffrage. Madison was furious.

Madison began a divisive strategy to persuade three states to join the three large states to ensure proportional representation in both houses. He controversially suggested that the great division in America lay between the northern and southern regions over “having or not having slaves.” So, he thought, the lower branch of Congress should represent the states according to the free inhabitants; the senate should represent “the whole number, including slaves.” An important purpose of the second branch was to be the “guardianship of the rights of property” – including property in people.

Madison hoped that his plan would give such an advantage to the South that it would lead the three deep south states – the two Carolinas and Georgia – to back proportional representation for both houses. They did not. The Convention voted in favor of the Senate we have today, a Senate in which the states have equal representation. The Convention, however, did adopt Madison’s three-fifths ratio for the House of Representatives. And Madison’s insistence on a fundamental regional division over slavery led the deep southern delegates to take additional measures to protect slavery.

Madison’s role in promoting slavery is often overlooked because historians have relied on Madison’s revised version of his record of the Constitutional Convention of 1787, known to historians as Madison’s Notes. They are the most important source for what happened at the Constitutional Convention. In two comments Madison recorded in his Notes, he spoke against slavery at the Convention. They are the only two times in the Notes he claims to have spoken against slavery. Both occasions occur on August 25. No other delegates’ notes from the Convention contain a single word indicating that Madison was opposed to slavery.

New evidence suggests that Madison composed his anti-slavery comments two years after it appeared he had written them. Madison did not finish the Notes until after the Convention, and he wrote the Notes from August 22 to September 17 after the fall of 1789. Curiously, one of the sentences Madison attributes to himself bears a strange resemblance to a statement that he had originally recorded another delegate, Maryland’s Luther Martin, making on August 21.

On that day, Madison recorded Martin’s comment about slavery: “it was inconsistent with the principles of the revolution and dishonorable to the American character to have such a feature in the Constitution.” Two years later, Madison claimed that he himself had stated on August 25: “Twenty years will produce all the mischief that can be apprehended from the liberty to import slaves. So long a term will be more dishonorable to the National character than to say nothing about it in the Constitution.” Madison might indeed have repeated Martin’s comment at the time, written it down in his rough notes, and then used it two years later. But, equally possible is that it was only in 1789-1790 that he felt the need to indicate that he had voiced some objection to slavery. By 1790, Madison supported the idea that Congress should ban the foreign slave trade.

Madison maintained this equivocal approach for the rest of his life. He stated that slavery was wrong…but he continued to participate in it. He supported the American Colonization Society and its mission to remove freed African Americans from the United States and resettle them in Africa. In his will he provided a legacy of $2000 to the Society from money raised by the eventual publication of his Notes on the Constitutional Convention.

His will did not free any person that he held as a slave.

See all of the pieces in our series: Slavery and the Constitution.

About the Author

Mary Sarah Bilder

Mary Sarah Bilder teaches law and American legal history at Boston College Law School, where she is Professor and the Michael and Helen Lee Distinguished Scholar. Her most recent book is a biography of Madison's Notes, Madison's Hand: Revising the Constitutional Convention (Harvard University Press 2015). She still thinks of herself as someone from Wisconsin.

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  1. Editors – I don’t understand the assertion that this centuries-old debate about the Founding is somehow really about “how to incorporate new voices into a discussion about America’s future.” Let’s be clear: you’ve just chosen to publish a blog piece by the white editor (Bilder) of a book about a white guy (Madison) arguing about an op-ed written by a different white guy (Wilentz) that supposedly questions the historical grounding of a statement made by another very old white guy (Sanders). Wake me when you uncovered some genuinely “new voices” to say anything interesting on this very ancient topic.

  2. I applaud Professor Bilder’s scholarship because as she noted, “Madison’s role in promoting slavery is often overlooked.” I am interested in “anything interesting” on the topic of the U.S. Constitution no matter the race or gender of the “voice” it comes from.

  3. Madison did not invent the 3/5 rule. Take a look at the debates over the Articles of Confederation in 1783. There, the question was whether a slave should count the same as a free person or count for one-half for purposes of calculating the wealth of a state for tax purposes The suggested compromise was 3/5. It didn’t pass nor did any compromise pass. At the Constitutional Convention, 3/5s was proposed not by Madison, but by James Wilson (PA) and seconded by Charles Pinckney (SC).

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