A LETTER TO THE EDITOR: ON SLAVES AND THE CONSTITUTION

September 2011

George Anastaplo

            It is argued by your correspondent that the three-fifths standard in the United States Constitution, for counting slaves in a State’s census, “gave the slaveholding States a disproportionate influence in the U.S. House of Representatives,” as well as in taxation levies and in Presidential electoral calculations. Thus, it is argued, “Even those Southerners who did not own slaves benefitted from this system.”

The three-fifths standard, however, may not have really given Southerners the inappropriate advantage in census-related calculations suggested by your correspondent. After all, slaves were recognized as “persons” in the Constitution of 1787—and all other persons in this country (North and South, except for certain Indians) were counted fully, not only those who could vote.

Indeed, the champions of the Thirteenth Amendment, permanently emancipating all slaves in this country in 1865, had to face up thereafter to the embarrassing prospect that this dramatic change could mean a substantial enlargement of the Congressional and Presidential electoral power available to white Southerners, since their former slaves would thereafter be counted 100%. An effort had to be made (with dubious effects) in Section 2 of the Fourteenth Amendment (of 1868), therefore, to deprive Southern States of such a substantial enhancement whenever they failed to extend the vote to former male slaves. The 1865 enhancement of Southern numbers had already been substantially offset, however, by the horrific battle casualties suffered by the South during the Civil War, a period during which substantial European immigration had continued into the North.

[A November 2011 postscript to this letter:

A contemporary parallel to the exploitation of slavery numbers may be seen in how undocumented immigrants are dealt with in this country today. Most of them work, paying Social Security taxes (using fake Social Security numbers), taxes from which they cannot expect to collect any benefits in their old age. Also, undocumented immigrants tend to be counted for electoral numbers purposes (even though they cannot vote), thereby enlarging the national political power of the States in which they live (the political power in the House of Representatives and in Presidential elections).]

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