In response to:
The Court & the Right to Vote: A Dissent from the August 15, 2013 issue
To the Editors:
John Paul Stevens [“The Court & the Right to Vote: A Dissent,” NYR, August 15] is confused about the history, the arithmetic, and, surprisingly, the constitutional status of the provision counting slaves as three fifths of a person for purposes of the apportionment of the House of Representatives.
Justice Stevens refers to a “slave bonus” as if treating slaves like other people would have magnified the power of the South. He writes as if apportionment was based on counting the number of people eligible to vote, but in fact apportionment is based on the population of the state irrespective of eligibility to vote. The Fourteenth Amendment did not change this fact, though it did remove the three-fifths clause. Article 1, section 2, paragraph 3 of the Constitution states:
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.
Thus a state would always gain relative strength in Congress from an increase in population relative to other states whether or not that population was eligible to vote. But many groups of nonvoters were included in the “whole Number of free Persons”: women, noncitizens, nonproperty owners all counted as one each. Slaves counted as only three fifths, and the slave states would have gained congressional strength by counting them as whole persons, as Justice Stevens recognizes in his discussion of the situation after the Civil War. The “slave bonus” is only a bonus if—contrary to the practice with respect to all other parts of the population (with the exception of the nontaxed Indians)—slaves were ignored altogether.
In the debates over the drafting of the Constitution, the slaves-count-three-fifths clause was not promoted by the slave states: they in fact would have preferred to count slaves as whole persons. Northern states would have preferred to diminish the power of the South by not counting them at all. The three-fifths compromise was proposed by James Wilson of Pennsylvania and Roger Sherman of Connecticut—both representatives of nonslave states.
Before the Civil War, there was no “slave bonus” unless one argues that slaves should not have counted as people at all. If anything, relative to other nonvoters, there was a two-fifths slave deficit. The consequences of ending the three-fifths clause are immediately obvious in the change in apportionment of the slave states before and after the Civil War. According to the apportionment based on the 1860 census, the fifteen slave states (which include some that did not join the Confederacy) together elected 85 representatives (35.0 percent of the total membership of the House of Representatives). After the 1870 census, the sixteen former slave states (West Virginia having been divided from Virginia) elected 106 representatives (36.3 percent of a now larger total membership). Removing the three-fifths clause expanded their representation, so it is odd to call it a “slave bonus.”
Of course, it remains true that when voting is suppressed for some groups de jure or de facto, the remaining voters gain relative influence. Jim Crow laws did magnify the influence of white voters—and not only “white supremacists”—just as not permitting women to vote magnified the influence of male voters; but that is a distinct issue from the three-fifths clause, which could only have diminished the influence of slaveholders relative to voters in nonslave states—which was exactly the point when it was adopted in 1789.
Kevin D. Hoover
Professor of Economics and Philosophy
Durham, North Carolina
John Paul Stevens replies:
Professor Hoover is correct when he points out that the use of the term “slave bonus” is appropriate only “if treating slaves like other people would have magnified the power of the South.” It clearly would have done so, which is why the Northern states objected to counting slaves for apportionment purposes and the three-fifths compromise became necessary. Given the fact that slaves—unlike women and children—were essentially unprotected by the law, neutral decision-makers would surely have supported the Northern position. The importance of the bonus is explained by Earl E. Pollock on pages 28–32 of his recent book, Race and the Supreme Court (2012). The term “slave bonus” has been previously used by scholars, including Garry Wills, “Negro President”: Jefferson and the Slave Power (2003), pp. 4, 75–77, 110, 185, 235; Sanford Levinson, Our Undemocratic Constitution (2006), p. 90; and Kenneth Prewitt, What Is Your Race? The Census and Our Flawed Efforts to Classify Americans (2013), pp. 41, 73.