The 3/5 Rule and the Electoral College: The Slave States’ Power Grab

The 3/5 Rule and the Electoral College: The Slave States’ Power Grab 2017-07-26T10:24:41+00:00

Philadelphia, Pennsylvania.

The fifty-five delegates of the Constitutional Convention sat quietly, sweating in the afternoon heat. A few fanned themselves with their broad-brimmed, black felt hats. The doors and windows of the State House had been sealed for privacy, and the brick-walled building had become as hot as an oven. Their discomfort was increased by the subject that Pennsylvania Delegate Gouverneur Morris was about to discuss: slavery.

A tall and heavyset man, Morris had a wooden peg leg, and he gripped the podium tightly for balance.

“Slavery,” he began, “is the curse of heaven upon the states where it exists.” Morris, balancing on one leg, clutched the podium. He went on to call slavery an “evil, nefarious institution.”

The delegates shifted in their seats. In the previous six weeks of debate, black slavery—the South’s “peculiar institution”—had not been directly attacked. Most of the delegates from the northern and central states considered it a moral evil, a blot on the high moral principles projected by the new republic, yet none harbored any genuine hope for writing a slavery ban into the Constitution.

The six slave states represented about 49 percent of the total population but produced around two-thirds of the exports for the new nation. Full participation of the South in the new union was essential to producing a strong, internationally competitive nation. The South’s main demand at the Convention, the acceptance of slavery in their states, had to be accommodated.

Gouverneur Morris was a savvy politician. He had served with distinction in the Continental Congress, earning the friendship of General Washington for his efforts in securing funding for his struggling army.

Morris was a realist about slavery, the Southern states would never accept abolition. He had made his way to the podium to speak out against a particularly aggressive power-grab by the Southern delegates.

In a bargaining session held behind closed doors, a special committee had proposed to award bonus congressmen and presidential electors to the slave states. Their measure would consider each slave to be three-fifths of a person, for the purpose of representation. That was sufficient to give the slave states an additional 30 percent of representatives in the House and a large boost in the Electoral College.

Morris believed that the “three-fifths” rule was morally wrong and politically unfair. Instead of being a measure that might discourage ownership of slaves, it had the opposite effect. With this new formula, the South would have an incentive to add more slaves; they could ramp up the Atlantic slave trade to increase their number of votes in the new House of Representatives.

Glancing at the South Carolina delegation, Gouverneur Morris skewered the proposed new rule: “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?”

He then launched into his main point:

The admission of slaves into the Representation, when fairly explained, comes to this: that the inhabitant of Georgia and South Carolina who goes to the Coast of Africa and, in defiance of the most sacred laws of humanity, tears away his fellow creatures from their dearest connections and damns them to the most cruel bondages shall have more votes in a government instituted for protection of the rights of mankind, than the Citizen of Pennsylvania or New Jersey who views with a laudable horror, so nefarious a practice.

Morris reached for his thick, polished oak cane and walked slowly back to his seat, his peg leg thumping on the wood floor.

Morris was not a champion of abolition; he didn’t belong to the recently organized New York Manumission Society. Born to wealthy parents who lived on a 1,200-acre estate in New York, in what is now the South Bronx, Morris was known as a ladies’ man. Local gossip said that he had lost his leg jumping from the balcony of a house while fleeing a jealous husband. In the evenings, when the delegates socialized over draughts of ale at City Tavern, Morris was known for spinning tales of his personal exploits.

When Morris had finished with his denunciation, the hall was quiet for several minutes except for the shuffling of documents and whispered comments. Tellingly, no delegates from the Southern states rose to respond. The Southern leaders knew that this was a passing storm, and they had the votes needed to secure their main objective. After a few procedural matters were handled, the Convention chairman adjourned the meeting for the day.

No Impact

Despite the fierce eloquence of Morris’s attack, it had no impact on the eventual adoption of the three-fifths rule. Leading the fight in the Convention for slave power was twenty-nine-year-old Charles Pinckney. Born into a wealthy, slave-holding, and politically active family, Pinckney would go on to serve two terms as governor of South Carolina and four terms in Congress.

During the Convention, Pinckney rarely spoke out for slavery in public. A skilled negotiator, he worked best behind closed doors, and many historians believe that his role in shaping the final Constitution was second only to Madison’s.

In one of his few comments defending slavery, he said it was “justified by all the world.” He pointed to Ancient Greece and the Roman Empire, where “half the inhabitants” had been slaves. He added that in the contemporary era, all the major European nations, England, France, and Spain, depended upon slave labor in their colonies.

At other times, Pinckney did not bother to defend the institution; rather, he simply pointed out that if the new Constitution included restrictions on slavery, the Southern states would not accept it—that is, they would leave the union. That threat easily persuaded the Northern delegates to back down from supporting any antislavery measures.

Twenty-five of the fifty-five delegates owned slaves. James Madison, the acknowledged “Father of the Constitution,” owned 125 slaves on his 2,000-acre Virginia plantation, Montpelier. In private, Madison often questioned the morality of slavery, but he said nothing about it at the Convention, working strenuously to find compromises on most issues while trying to ensure a strong federal government.

The delegates from the Northern states did not work hard to limit slavery in the new Constitution. Although few Northern politicians discussed it publicly, many industries in their states benefited from selling goods to affluent Southern plantation owners. Ship builders, iron makers, clothing manufacturers and hardware wholesalers all found lucrative markets in the slave states. Many ship owners in the North engaged in the terrible trans-Atlantic trade in enslaved Africans. Until the Atlantic slave trade was banned in 1808, ships based in Boston and Newport, R.I. carried some 140,000 African slaves to the southern colonies and the Caribbean.

Secret Meeting

During the official sessions of the Convention, all members of the public were barred. The doors and windows to the hall were closed. The official minutes, kept by an assistant to Chairman George Washington, simply recorded the dates and the results of the various votes. None of the debates were transcribed. The delegates believed that they must be free to think out loud, to float trial balloons. They did not want to appear to be flip-flopping on key issues in the eyes of their constituencies.

Delegates from the Southern states had to assure their constituents that the new Constitution would leave the issue of slavery up to the states.

The northern states were dependent on interstate and overseas trade. Their leaders wanted reassurance that the new union would fairly and effectively regulate commerce. New York, New Jersey, and Connecticut had waged several legal battles over state import duties, port fees, and shipping rules. Northern delegates wanted a strong federal government to arbitrate these disputes and to protect them from a still-hostile British Navy.

On Friday, September 7 the convention agreed that a new “electoral college” would be used to select the President.

Several Northern delegates had proposed the president be elected directly, by a plurality of the popular vote. James Wilson of Pennsylvania pointed to the successful direction election of the governors of New York and Massachusetts. Gouverneur Morris also spoke in favor of direct election, although he envisioned that only property holders (men only) would be allowed to vote.

South Carolina’s Pinckney fought against direct election. Although he did not refer directly to his own state, it was common knowledge that half the population were black slaves. In Virginia, the largest state, had some 330,000 white residents and 220,000 black slaves.

The composition of the electoral college is inherently undemocratic. The number of electors from each state is determined by adding the two senators to the number of representatives. Because the number of representatives was based on the three-fifths rule (i.e. black slaves, who could not vote, counted as three-fifths of a person for allocating representatives), the Southern states obtained an inordinate amount

The final draft of the Constitution contained many measures designed to please Southern legislators, who would need to ratify it.

Several key measures protected slavery. Article I contained the controversial three-fifths clause. Another section of the same article included the slave-trade clause, which prohibited Congress from banning the trade prior to 1808. In Article V, the fugitive-slave clause prohibited any state from freeing any slave found within its borders. Instead, it required that escaped slaves be returned to their owners “on demand.”

After the final draft was signed on September 17, 1787, the leaders of the Convention went back to their home states to lobby for its ratification. After so much work, so many hard fought compromises, they were naturally supportive of their creation—though they did not agree with its every aspect.

George Washington, chairman of the Convention, had said little during the debates. The delegates had designed the office of the presidency with him in mind. Washington praised the final document, making a veiled reference to the North-South split.

Washington told a colleague,

It appears to me then little short of a miracle, that the delegates from so many different states . . . in the manners, circumstances, and prejudices, should unite in forming a system of national government, so little liable to well-founded objections.