The Peculiarity of the Three-Fifths Rule

The three-fifths rule of the Constitution treated slaves as three fifths of a person for purposes of representation and direct taxation. This provision is puzzling in many ways (above and beyond its connection with slavery). One common way it has confused people is that people often regard the Clause as problematic because it did not treat slaves as 5/5 of a person. But if the Clause had treated slaves in that way, it would not have harmed but benefited slave states, since slave states would have enjoyed more representation in the Congress and the electoral college.

But I am puzzled by another aspect of the Clause. What made people believe it was an appropriate compromise between slave and free states? Representation and direct taxation could have been based on the number of persons in the state or on property. The convention chose not to base it on property but on the number of persons. But slaves were treated as property. Thus, representation and direct taxation should be based entirely on the number of free persons, with slaves counting for 0/5. As Elbridge Gerry said at the Convention, why “should the blacks, who were property in the South, be in the rule of representation more than the cattle & horses of the North?” This is harsh language as judged by our modern sensibilities, but it captures the point.

Of course, as things turned out, Gerry’s argument, if accepted, would have benefited the free states, but that is not my point. My question is why it was regarded as a legitimate compromise.

It is true that the compromise had already been discussed for requisitions under the Articles of Confederation. And it might or might not have made sense there. But for the Constitution itself, it just does not seem to make sense.

Professor Rappaport is Darling Foundation Professor of Law at the University of San Diego, where he also serves as the Director of the Center for the Study of Constitutional Originalism. Professor Rappaport is the author of numerous law review articles in journals such as the Yale Law Journal, the Virginia Law Review, the Georgetown Law Review, and the University of Pennsylvania Law Review.  His book, Originalism and the Good Constitution, which is co-authored with John McGinnis, was published by the Harvard University Press in 2013.  Professor Rappaport is a graduate of the Yale Law School, where he received a JD and a DCL (Law and Political Theory).

About the Author

Comments

  1. Jardinero1 says

    At ratification New York, New Jersey, Pennsylvania and Massachusetts were still slave states. There were still many slaves living in those states long after slavery had been legally abolished in the nineteenth century. So even a non-slave state faced the issue of how to count the slaves still living within its boundaries.

    • Kevin R. Hardwick says

      A minor and I hope not too obnoxious correction here. You are correct that there were in 1788 many thousands of enslaved persons still living in the North. However, in Massachusetts slavery was de facto a dead institution, in as much as after 1783 Massachusetts courts refused to enforce it. Since slavery requires the force of law to function, as a practical matter slavery ceased to exist in Massachusetts in short order after 1783.

      Pennsylvania abolished slavery by “gradual” emancipation in 1780; most slave owners emancipated their slaves by converting them to long term indentured servants, and so continued to enjoy the labor of their former chattel. Because the abolition law contained no provisions to prevent masters from removing their slaves to states where it remained legal and then selling them, some slaves–we do not know how many–were simply “sold south.” The standard study is by GaryNash and Jean Soderlund, FREEDOM BY DEGREES: EMANCIPATION IN PENNSYLVANIA AND ITS AFTERMATH (1991), and it has been a while since I read it–so I don’t recall when the last slaves were emancipated in Pennsylvania, but my recollection is that de jure slavery was dead by the 1790s, although de facto it continued for some decades longer.

      Slavery remained legal in New York and New Jersey well into the 19th century. New York abolished slavery by gradual emancipation in 1799; New Jersey in 1804. In both states there were significant numbers of enslaved persons for at least a decade after passage of these laws, although, as with Pennsylvania, in neither cases was provision made to prevent slave owners from selling their slaves to purchases from other states.

      • Jardinero1 says

        Yes. My point is nearly all the states had slaves at the time the three fifths compromise was debated. Some states had more than others. Nobody knew what the future held with regard to future populations of slaves in any state. There had to be some method to deal with them for purposes of apportionment. I think that the reason some struggle with the idea of the three fifths compromise is that they are held captive by a mythical narrative that the country, during the constitution’s writing, was already neatly cloven into two parts, slave and free. That wasn’t the case.

  2. Kevin R. Hardwick says

    Mike–

    This is not a proper answer to your question–which, I have to confess, has puzzled me as well. But in thinking about your query, I happened to peruse the bio at the end of the post, and notice that it now requires modification. Amazon confirms that your book is now out–an occasion that merits acknowledgement and celebration even on boards like this one. Congratulations! May there be many more similar achievements in your future.

    Well wishes,
    Kevin

  3. Kevin R. Hardwick says

    Mike–

    A final few thoughts, before I go to bed: first, I have found John Kaminski, A NECESSARY EVIL? SLAVERY AND THE DEBATE OVER THE CONSTITUTION to be an extremely useful resource on these kinds of questions. If you do not know it, it may be worthy of your time. The book is mostly primary sources, but Kaminski’s annotations are extremely good.

    Second: there has been a line of interpretation, advanced by scholars who take their lead from William Lloyd Garrison, who argue that the 3/5 clause represented a “bonus” to the South. Scholars like David Waldstreicher, SLAVERY’S CONSTITUTION, and Paul Finkelman, SLAVERY AND THE FOUNDERS, represent modern advocates of the Garrisonian position.

    This notion has never made sense to me. Conventionally, scholars of the 18th century point out that it is misleading to view slavery as unambiguously the opposite of freedom. Rather, 18th century society drew a wide variety of distinctions, creating a continuum from freedom to unfreedom, in which slavery was the most extreme condition of unfreedom, and propertied male heads of household the most extreme condition of freedom. But by any measure, the vast majority of 18th century persons lacked freedom. This included all women save propertied widows, as well as most children and most young men.

    In 1787, the framers decided NOT to deny all of these other forms of unfreedom (albeit none of them quite so unfree as slaves), but rather counted those persons who occupied such statuses as persons for purposes of allocation of direct taxes and for purposes of representation. From this perspective, then, what the neo-Garrisonians consider a “bonus” to the slave states actually looks like a penalty.

    Hopefully none of this is too much of a distraction from your question above, which strikes me as pulling in a similar direction, but not as quite the same thing.

    • gabe says

      Kevin:
      I, too, thought that this clause was intended, if not as a penalty, then at least as a diminution of slave power via reduced representation in the House.
      Also, as I recall the Southern States were insisting upon full counting of slaves for the purposes of House representation.
      And as you know, the number of slaves in those states was substantial – in some instances representing a majority of the human population.

      take care
      gabe

      • gabe says

        Kevin:

        Oops, i forgot to mention that your point countering the neo-Garrison’s was spot on and places the Framers decision in a far more understandable light.

        take care
        gabe

    • djf says

      With reference to Kevin Hardwick’s third and fourth paragraphs, on reflection, it is obvious that we continue to count people not allowed to vote in apportioning representation. The census on which representation in the House is apportioned includes minors below voting age, disenfranchised convicts, and resident aliens (theoretically, both legal and illegal).

      • Kevin R. Hardwick says

        DJF–

        Just so. And if we count such people, why not also count enslaved people?

        The answer had something to do with contemporary understanding of economics. In the debate in the Continental Congress that produced the first instance of the “federal ratio,” the argument was over how best to capture the wealth of the various states for purposes of allocation of requisitions between the various states (it seemed evident, for example, that Delaware should not be asked to provide the Continental government with the same amount of money as Virginia).

        Most delegates preferred to tax land, but there were obvious problems with how to assess the comparative value of land. The delegates agreed that if they could not use land value, a good surrogate for wealth was population–which then led to discussion of the relative merits of free vs. enslaved persons.

        I have never seen anyone attempt to disentangle the intellectual sources in contemporary economic thought of the various assumptions and ideals expressed in this debate, but I thought it pretty evident when I read it some many years ago that such an exercise would be fruitful.

  4. says

    The Three-Fifths Rule may have made sense if the framers were intending to levy a land value (direct) tax on Southern plantations, in which case treating the slaves as “cattle & horses” would have resulted in much lower land values and tax liability for the South. Also, under Article 1, Section 9, Clause 1, slave trading was supposed to become subject to prohibitive taxation after 1808 and the Three-Fifths Rule null and void shortly thereafter.

      • says

        The Slave Trade Clause (I:9:1) was supposed to ban interstate trading and international importing of slaves, which Jefferson did on January 1, 1808 (the very first day he possibly could have banned slave trading). The clause was also supposed to confine slavery only to the states who were condoning slaves at ratification. Once the trading of slaves was prohibited, theoretically at least, slavery was supposed to “whither on the vine,” after which the Three-Fifths Rule would be null and void. Some argue that slaves could have been bred on the plantations and never traded across state lines, but in the long run, this was not sustainable or economically viable.

        • djf says

          The constitutional provision to which you refer deals with “importation” of foreign slaves into the United States. It says nothing about “interstate commerce” in slaves, which was quite a big (and legal) business in antebellum America, with slaves from the old tobacco-growing areas (VA, MD, KY) being sold to cotton plantations in newer states (e.g., Alabama, Mississippi). You are correct that, pursuant to the constitution, importation of foreign slaves was outlawed in 1808, although I understand that the law was not rigorously enforced.

        • gabe says

          Rick:

          DJF is correct about this. There was no ban on interstate commerce in slaves and in fact the trade in slaves across state lines continued until the end of slavery and accounted for a considerable portion of slaveholder capital. The international trade also continued, somewhat vigorously, with Northeastern merchant ships being the “illegal” purveyors of the slave cargo.
          And here is one to make you laugh just a wee bit. The Confederate Constitution actually “banned” the importation of slaves and Alexander Stephens roundly criticized the Northern shippers for their role in the trade.
          Lastly, there was no “constitutionally” mandated end date for the Three-Fifths Clause. Absent the Civil War and the subsequent amendments, it would still be valid today.

          take care
          gabe

          • says

            The Slave Trade Clause refers to importation *or* migration of slaves, so not only interstate migration could be encompassed by the clause, but even intrastate migration. Also, the words “now existing” are important because slavery was not supposed to be expanded beyond the states in which it existed in 1787. But, yes, the political will didn’t seem to be there in 1808, even though Jefferson banned slave trading, or maybe the federal government just wasn’t then strong enough to contend with slaveholders. I was trying to find some articles on this, but here’s one: http://www.heritage.org/constitution/#!/articles/1/essays/60/slave-trade

          • says

            Hylton v. U.S. (1796) also shows that the early federal gov’t had its sights on ending slavery. This case really bothered slaveholders because if the feds could tax Mr. Hylton’s carriages without running afoul of the Direct Tax Clauses, it could also tax their slaves. So, this case, along with the prospect of unlimited taxation of slave migration and importation after 1808 threatened to make the Three-Fifths rule quickly irrelevant.

  5. djf says

    The Heritage article Mr. DiMare cites notes that Madison disagreed with the view that I:9:1 permitted Congress to outlaw the interstate slave trade in 1808. While there was a minority view to this effect, it was of no moment, since outlawing interstate commerce in slaves, whether it would have been constitutional or not, was plainly not politically possible at any time up till the Civil War.

    • says

      Yes, it wasn’t till the Civil War that the federal gov’t got a good handle on the banking and monetary system, and therefore was economically powerful enough to enforce anti-slave laws. (But my point was that legally it was possible to end slavery within 20 years after ratification, given the intent behind the Slave Trade Clause and Hylton v. U.S. (1796)).

      • gabe says

        Rick:

        You are absolutely correct that the many of the Framers believed / hoped that the institution of slavery would wither on the vine. However, there is no textual argument which supports any assertion that the framers intended to prohibit interstate or intrastate commerce in human beings; nor do I recall any serious attempt to forbid this practice in existing states (leaving aside the territories for the moment) until after the War. Yes, there was a great deal of rhetoric to that effect but nothing substantial other than several states failing to respect the Fugitive Slave Clause – but that is not the same thing. Heck, even Lincoln insisted that he had neither the inclination nor the Constitutional power to do so.
        I would add only that the presence of Federal troops also had something to do with the enforcement of the prohibition of slavery.

        take care
        gabe

        • says

          If this were 1787 and you’re a slaveholder, and I tell you I will agree not to tax the importation or migration of slaves more than $10 a head until 1808, but after that, all bets are off, what else should you think, other than there is an intention “to prohibit interstate or intrastate commerce in human beings”?

      • djf says

        It was not politically possible to outlaw the slave trade at anytime up to the Civil War, since the southern states could block any such legislation in Congress. The banking and monetary system had nothing to do with it; the federal government did otherwise regulate interstate commerce (as it was then understood) before the Civil War. If you have some sort of evidence that a proposal to outlaw the interstate slave trade was seriously debated at any time before the Civil War, you should tell us where it is. Also, as I pointed out in my previous comment, the article you cited from Heritage does not support your contention that it was generally understood that the Slave Trade Clause authorized prohibition of the interstate slave trade in 1808. Your assertions about the Hylton case are unsupported; certainly, the contention that a case about taxing carriages somehow shows that the federal government was aiming at abolition as early as 1796 is pretty far-fetched.

        • says

          djf, here’s a good law review article by Robin Einhorn about the intent behind Hylton v. U.S. (1796): http://voyager.dvc.edu/~mpowell/afam/leinhorn2.pdf

          Regarding your comment that the banking and monetary system had nothing to do with slavery, see Justice Story’s dissent in Briscoe v. Bank of Kentucky (1837). Had the Andrew Jackson Supreme Court not quashed the federal central bank in Briscoe, I doubt very much that a civil war would have been necessary.

          • gabe says

            Rick:

            Of course banking and the monetary system had something to do with slavery – just as it had to do with manufacturing, shipbuilding, etc. It was a source of capital. In fact, the banking system in the South was the “plaything” of the slaveholders.

            But this is not the same thing as saying that slavery could only be terminated once the Union had become strong enough to dominate the banks. In point of fact, the banks were not really brought to heel until the rise of the current Enlightened One in the Oval Office. Even FDR could not totally dominate them with his New Deal shenanigans – and he had the Federal Reserve System at his beck and call!Further to assert that if the National Bank had survived Jackson’s principled antagonism that the Civil War would not have happened requires that you disregard the total integration of slavery within the southern economy and the steadfast refusal of the south to forgo the attendant “advantages” derived therefrom.
            Heck, they were ready to secede over the Tariff of Abominations. Also, it was during this period, as a mean of defending against rising abolitionist sentiment in the North that southern “statesmen” began formulating their theory of the “positive good” of slavery culiminating in Alexander Stephens’ “Cornerstone Speech.”
            So I am respectfully not buying it.
            (Am going through the linked essay. So far it is suggestive but non-persuasive).

            take care
            gabe

          • says

            Does anyone know how to get notification of new comments to this thread by email? I have the Law and Liberty app for iPhone and don’t even get notified that way.

            gabe, the Federal Reserve Corp. is built on the same legal foundation as the First Bank of the U.S. (1791-1811) and the Second Bank of the U.S. (1816-1836). All I’m trying to say is that if the growth of a federal central bank had not been interrupted in 1837, we would’ve had something like the Fed much earlier than 1913 and a civil war may have been unnecessary (because the feds would have had power to enforce slave taxes and abolish slavery, etc. regardless as to what independent state banks wanted). Also, what ultimately brought state banks to heel was a prohibitive tax on the issuance of state-bank-created notes, as explained in Veazie Bank v. Fenno (1869).

          • djf says

            Believe it or not, Rick, I work for a living, and don’t have time to read the entire turgid article to which you link. Perhaps you could tell me where in the article the author describes an actual proposal to outlaw the interstate slave trade that was seriously debated by politically prominent figures. You do not prove your contention by pointing to the fact that slaveowners objected to some form of taxation of interstate commerce on the ground that it might in the future be applied to commerce in slaves.

          • says

            On the pro-slavery side of the Hylton tax, as represented by attorney John Taylor, “the issue of whether the carriage tax could be ruled ‘indirect’ (and thus Constitutional) was about whether Congress could levy a prohibitive slave tax. The connection might not seem obvious, but Taylor believed that a positive verdict on the carriage tax would mean that ‘every other species of property is exposed.’ ‘Unhappily for the southern states’, he continued, ‘they possess a species of property which is peculiarly exposed, and upon which if this law stands, the whole burden of government may be exclusively laid.’ A carriage tax that passed Constitutional muster, according to Taylor, would let Congress use taxation ‘to effect a general emancipation, by imposing upon the property thus intended to be secured [i.e., the slave intended to be freed], an excise or duty so exorbitant as to deprive it of its value.’” pg. 171, http://voyager.dvc.edu/~mpowell/afam/leinhorn2.pdf

          • djf says

            Rick, I asked if the article discusses an actual, serious proposal to tax slaves that was discussed around the time of Hylton. As I said before, and repeat now, that some southerners argued hypothetically that a decision upholding the tax in Hylton might be used to justify a prohibitive slave tax at some point in the future is not evidence that there was a serious movement to impose such a tax in those days. Incidentally, the fears of John Taylor proved unfounded, since the government prevailed in Hylton (i.e., the carriage tax was held not to be direct and therefore not to require apportionment) and yet, so far as I know, no proposal to impose a prohibitive excise tax on slaves or commerce in slaves was ever seriously considered in Congress from then until the Civil War.

          • says

            djf, Taylor’s fears in the Hylton case were that if carriages could be taxed as an easily-levied indirect tax, so could slaves. There was no income tax back then to tax Hylton’s commercial activity, so by allowing the indirect tax on carriages the Supreme Court was basically saying that the Direct Tax Clauses were not designed to protect businesses like Hylton’s (nor those of plantation operators). But, again, I agree that while plans were being laid to tax slaves within the first 20 years of ratification, no serious federal effort was successful until the Civil War. Nor do I think such plans (to tax slavery out of existence) would have been openly discussed in Congress.

          • djf says

            Rick,
            You have not identified any basis for your assertion that “plans were being laid to tax slaves within the first 20 years of ratification.” Taylor’s argument (which I understand quite well without your not entirely cogent explanation, thank you very much) simply does not constitute evidence that any such “plans” existed at the time Taylor wrote. As far as I know, there was no “federal effort” to tax slaves before the Civil War, serious or otherwise. And how you can believe such an “effort” existed without being discussed in Congress is beyond me.

          • says

            djf:

            Regarding the intent behind the Slave Trade Clause (I:9:1), I posed this question to gabe above and he didn’t reply, so I’ll ask you:

            If this is 1787, and you’re a slaveholder, and I contract with you that I’m going to limit the taxation of the importation or migration of slaves to $10 per head until 1808, but after that, all bets are off, what else can you possibly deduce from this agreement that there are plans/intent to abolish slavery?

          • djf says

            The tax referred to in the provision was a tariff on “importation,” which clearly means into the United States from abroad (there was no dispute that the US would have the power to tax imports into the country, which was the federal govt’s main source of revenue for the first 100 yrs of our history). Also, the provision contemplates outright prohibition of the trade referred to, not making it unprofitable through taxation. Most importantly, the debate at the time of framing and ratification was over importation of foreign slaves only, which is sufficient to explain the provision without reference to interstate trade (again, according to the Heritage article you linked to, Madison himself did not think the provision permitted Congress to outlaw interstate slave-trading even in 1808). Again, if you know of any evidence of a serious proposal by anyone of political significance, at any time from the 1780s to the Civil War, to outlaw the interstate slave trade, I’d be interested to know of it. Otherwise, I think that concludes the discussion.

          • djf says

            I would add – given the many thousands of miles of state borders (most running through wilderness) and the severe limitations of late 18th and 19th century surveillance and information technology, it’s rather hard to see how any prohibition or tax on interstate slave-trading could have been enforced.

          • says

            djf:

            First, Madison’s unofficial opinion notwithstanding, the Slave Trade Clause is not limited only to slave importation, but also to slave migration (especially between states).

            Second, yes, the Slave Trade Clause contemplates prohibition but does not mandate it, so the gradual abolishment of slavery by using both (1) slave importation/migration taxes exceeding $10/slave and (2) slave ownership taxes under Hylton v. U.S. (1796) were clear alternatives to outright prohibition.

            Third, regarding the impossibility of enforcing slave importation/migration, I don’t have a reference but I remember reading somewhere that Fort Sumpter was strategically located to intercept incoming slave ships, which is why it was attacked.

          • gabe says

            Rick:

            There is a minor problem with your analysis:
            1) On January 1, 1808, Jefferson signed into law a bill prohibiting the importation of slaves into the United States. Please remember that at the time the South still had sufficient resources in both houses of Congress to kill this bill. Yet, they did not. So clearly, it was understood by all involved that Article I Section 9, meant exactly what it said. No more international slave trade. Thus, all this talk about taxation and importation is simply wrong!
            2) Fort Sumpter was strategically located to intercept incoming shipping. However, it was not loss of incoming slaves that the South feared but rather, the interception of general commerce from Europe that the South would need to equip its armies and maintain an economy.
            3) lastly, as I have previously noted, even the Confederate Constitution banned the importation of slaves and there was a sound economic motive for this. First, simple supply and demand dynamics would indicate that a continuing inflow of slaves would increase the supply and lower the value of slaves. Again, remember that slaveholders principal capital equity was in human capital AND more importantly the reproduction rate of slaves was more than sufficient to cover all labor needs and in fact served as a means of garnering additional capital via sale of slaves to other slaveholders.
            Also, remember that other forts and garrisons were seized by the South and much critical munitions and arms were garnered for their cause. Sumpter may have been a strategic pre-emptive attempt to ensure these other gains.

            take care
            gabe

          • says

            Given that the intent behind the Slave Trade Clause and Hylton v. U.S. (1796) was (and still is) so unclear, I can see why the 13th Amendment was necessary. Perhaps an amendment abolishing slavery was the only way to nullify the Three-Fifths Rule and the Fugitive Slave Clause.

          • djf says

            Rick, you seem to be on some sort of ideological wild goose chase, and have little concern with facts or logic. I regret that I wasted time on an exchange with you.

          • says

            djf:

            If you want to talk about facts and logic, there is no disputing the fact that, had the political will and power been there early in American legal history: (1) slaves could have been taxed under Hylton v. U.S. (1796) without running afoul of the Direct Tax Clauses; (2) the Slave Trade Clause could have been used to tax interstate slave trading after 1808; and (3) the power of pro-slavery state banks would have been broken if the Second Bank of the U.S. (1816-1836) been allowed to survive, an indisputable right of survival it had under McCulloch v. Maryland (1819).

            As I see, you’re the one in denial of facts, and the one who has wasted my time.

  6. gabe says

    Rick:
    Just because there is some superficial resemblance between the Bank of the US and the Federal Reserve does not demonstrate your point. First off, the Fed initially had
    somewhat limited powers and those powers were indirect. Fed power grew over time concomitant with the growth of Fed gov’t power until the present day.
    BUT more importantly, the EXERCISE of Fed Reserve power is only possible DUE to the growth in power of the Fed gov’t that has occured in the 20th / 21 century. Moreover, this is only possible because there is an expectation (or acquiescence) on the part of the public that the Fed (both the Reserve and the Government) can and should exercise this power .
    This was manifestly NOT THE CASE IN THE 19TH CENTURY. Quite frankly, were the Federal government of that time to have attempted such action(s), not only the south but some Northern states would have seceeded. Remember that the first talk of secession occurred in the North in the early part of the 19th century.

    take care
    gabe

    • says

      gabe:

      The resemblance between the Fed and the first two central banks is not at all superficial. See McCulloch v. Maryland (1819): http://en.wikipedia.org/wiki/McCulloch_v._Maryland

      These privately owned, federally chartered banks are all formed under the Constitution’s “implied powers” which give effect to 8 expressed powers (but the power to coin money, which Congress retains as an exclusive power, is not of the 8).

          • djf says

            In what sense is the Federal Reserve “privately owned”? As I understand it, private banks originally capitalized it, but they don’t control it, and they can’t get the Fed’s “profits” back through dividends or through the ability to sell their “shares.” The old Banks of the US, on the other hand, were federally chartered private entities that earned profits for their stockholders (kind of like Freddy Mac and Fannie Mae, but less pernicious).

          • says

            The Fed is privately owned in the worst possible way (because we’re not allowed to know who actually owns and operates it, apparently because the Fed needs its “independence”). All we’re allowed to know is that the Fed has a chairman that reports to Congress occasionally.

          • djf says

            The Fed is run by a board, whose members are appointed public officials, and, like any other bureacracy, a staff of civil servants. The identities of the people on the Fed board are not a secret. This may not fit very well with the 3-branch scheme of government designed by the founders, but that does not make the Fed a “private” institution in any meaningful sense.

          • says

            Yeah but the board of directors of the Fed, even assuming you can back up your belief that they can all be identified, has nothing to do with who the owners are, nor for that matter, who the corporate officers are.

  7. gabe says

    Rick:

    By the way, the whole issue with the Fed Gov getting control over state banks had absolutely nothing to do with slavery. Its purpose, plain and simple, was to standardize paper currency. Local banks were issuing their paper currency. This currency would still be in circulation long after the bank had failed – and thus could not be redeemed. This was a significant problem and many investors / savers had to suffer the consequences before the actions of the Lincoln administration to standardize the “greenback” as THE paper currency.
    Their was absolutely no anti-slavery intent in this policy.
    “What the Act did do was to create a nationally uniform currency for funding and purchasing in wartime, and without that, feeding, clothing, and arming the Union armies would have been a nightmare of monstrous proportions.” ( see below)
    http://www.heritage.org/research/reports/2012/02/abraham-lincoln-was-not-the-father-of-big-government

    take care
    gabe

    • says

      gabe:

      The problem was not that “local banks were issuing their paper money,” but that state governments (particularly the state governments that protected slavery) were exerting too much influence over their state-chartered so-called “privately owned” banks, which violated the Article 1, Section 10, Clause 1 prohibition against states issuing “bills of credit.” In other words, state banks were allowed to issue bills of credit, but not state governments.

    • gabe says

      Rick:
      1) DJF has answered for me. You appear to be stretching the nature of the Slave trade Clause. AS DJF says, the intention was to outlaw it after approx 20 years. One can not then say that because we were taxing it at a rate of $10 per head for only 20 years, then with respect to taxation “all bets are off” as this destroys the intent of the clause, which clearly was to prevent any such importation after the 20 year period.
      2) The issue of the banks issuing ‘bills of credit” is also not something to be lain at the door of only the Slave states as Northern banks were doing the same and more importantly as the Slave states had seceded the Union had absolutely no authority or control over what they did. It is more realistic to accept the position advance by the Union at the time that there was an intent to establish a standard value for the currency and to provide some faith to the paper specie.
      3) With respect to e-mail notification, I agree it would be nice. At another site i visit, although not necessarily in agreement with their positions, they have such an option and it is quite handy. i get notification on any post that i sign up for. Pretty cool!

      take care
      gabe

  8. Kevin R. Hardwick says

    Rick–

    The slave trade clause derives in part from efforts by Virginia and Maryland in the 1760s to limit the importation of slaves into those colonies. In the Philadelphia Convention, delegates from the upper south favored a prohibition on the importation of slaves from outside the country. Delegates from the lower south insisted that this would damage their economy, and advocated for no prohibition at all. The upshot of this was a compromise–the Federal government would be forbidden to interfere with the slave trade prior to 1808, and likewise would be limited in the amount of taxes they might wish to raise from importation of slaves from outside the United States. This was to satisfy the delegates from the lower South, who worried that in lieu of an outright ban on slave imports, the Federal government might enact a de facto ban simply by raising taxes to prohibitive levels. After 1808, the ban of any action of the Federal government to make importation of slaves illegal was lifted–and since it was lifted, there was no need to maintain the limitation on taxes.

    The entire issue hinged on the importation of slaves from abroad. At no point was this ever about the inter-state trade in slaves. No one in the original conversation contemplated federal government interference in the inter-state trade, one way or the other.

    The worries of John Taylor of Caroline in Hylton would only have been realistic if there had been advocates for imposing a tax on interstate trade in slaves. Aside from Taylor, I have encountered only one mention of the idea in the abolitionist literature, dating from the 1830s. To my knowledge no northern statesman at any point suggested such an idea.

    So Taylor’s worry was purely theoretical–it was never proposed by any northern politician–not even the most committed abolitionists among them.

    • gabe says

      Kevin:

      Good to see you back posting again!

      And thank you for highlighting the differences between the Upper and Lower South and the effect it had upon Constitutional debates. I had forgotten to mention that in my responses to Rick. Indeed, as you know, the differences in many aspects of the slave economy, treatment, “merchandising, etc were quite significant. Additionally, reproductive rates were higher in the lower south and this also would mitigate against a renewed slave trade. although to be fair, an illicit (if any can be called “licit”) if significantly reduced slave trade did continue up to the coming of the war. This whole issue of taxation is just silly.

      Anway, as always

      take care
      gabe

      • Kevin R. Hardwick says

        Gabe–

        ‘Tis the season of midterms, which tend to suck up one’s time :)

        Many thanks for your kind words!

        Well wishes,
        Kevin

    • says

      Kevin:

      So, do you think the words “migration or” in the Slave Trade Clause have no meaning? These words clearly don’t refer to migration of slaves between foreign countries.

      Also, what of the words “now existing”? Wouldn’t those words give the federal government power to prohibit the trading of slaves with new slave states admitted into the Union after ratification?

      • Kevin R. Hardwick says

        Why would you assume that “migration” means “internal migration” rather than “migration from abroad.” The construction you prefer does not strike me as obvious at all.

        But leaving that aside, it still remains the truth that at no point did a Northern or Western politician suggest using the power of the federal government to tax interstate trade in slaves.

        And finally it really is the case that in Philadelphia in 1787, no one suggested at any point of which I am aware that the clause we are discussing might be applied to interstate trade in slaves.

        • Kevin R. Hardwick says

          We should note as well that at the state level, states taxed importation of indentured servants–thus, for example, when Pennsylvania abolished slavery, they imposed a tax on indentured servants. The language of the clause (Article I, Section 9, paragraph 1) clearly could apply to any category of persons, not just to slaves.

        • Kevin R. Hardwick says

          We should note as well that at the state level, states taxed importation of indentured servants–thus, for example, when Pennsylvania abolished slavery, they imposed a tax on indentured servants. The language of the clause (Article I, Section 9, paragraph 1) clearly could apply to any category of persons, not just to slaves.

        • says

          Kevin, you’ve again evaded discussing the meaning of the words “now existing” in the Slave Trade Clause, and you’re suggestion that “migration” means the same thing as “importation” is not credible.

          • Kevin R. Hardwick says

            Rick–

            Read more carefully–I never stated that migration and importation mean the same thing. What I am saying is that 1.) the Framers intended neither word to apply to the domestic slave trade; and 2.) no Northern or Western statesman, nor, so far as I can tell, any Southern statesman other than John Taylor of Caroline, ever suggested at any time prior to the war with Mexico that either word should be construed to apply to the domestic slave trade.

      • Kevin R. Hardwick says

        Rick–

        The words “now existing” modify the noun “states.” If, as you assert, the words “importation” and “migration” can be read to apply to the internal slave trade, then your suggestion that this clause can be read as license to the Federal government to regulate interstate trade in slaves to states like Kentucky, Tennessee, and Louisiana perhaps has merit. I say “perhaps” because no one to my knowledge ever seriously tried to apply the language of this paragraph to justify federal taxation or regulation of the domestic slave trade prior to the war with Mexico. So the construction you are asserting was never actually tested, as a matter of constitutional law.

        Your assertion amounts to speculation. As a matter of historical causation or interpretation, you have not demonstrated that it is anything more than your own pet theory. As an historian, I see no reason as yet to take it seriously, because the evidence you have adduced to support your theory is not compelling.

        • djf says

          Kevin, is it possible that “migration” referred to indentured servants (who came here voluntarily) and “importation” referred to slaves?

          • Kevin R. Hardwick says

            djf–

            That certainly was what I was implying. But take that with a huge grain of salt–the proper answer is that I don’t really know with any certainty.

        • says

          Kevin:

          Thanks for responding to my question about the “now existing” language contained in the Slave Trade Clause.

          My point in all this, is that our Lockean-based Constitution at conception, even with the (temporary) compromises made with slavery, was poised to abolish slavery by providing a property right in human labor through the two classes of taxation, direct and indirect.

          We still have not realized this property right because wages are presently taxed as income, not property, but ever since the 1895 Pollock case, a property right in the wages of natural persons (including former slaves) has been available for Congress to recognize.

          Also, I didn’t say that the word “importation” in the Slave Trade Clause could refer to interstate trading. That clearly means importing from a foreign country. But using the word “migration” to refer to international trading or importing would really be a stretch in my view. Granted, Jefferson chose only to ban international importing, and not interstate migration, on January 1, 1808, but up until ratification of the 13th Amendment a right to ban or heavily tax interstate trading always existed under the Slave Trade Clause.

          • says

            And I suppose that this view of mine–i.e., that the Constitution, since inception, through trying to give slaves a property right in their wages, has also been trying to give it to all white and blue collar wage earners–can be said to be “originalist.”

          • Kevin R. Hardwick says

            Rick–

            How does a tax on slaves amount to a tax on labor? Slaves were chattel–property. In theory, they were like any other form of property–in practice, of course, property in slaves was quite different than other forms of property. If, for example, we were to tax draft oxen, would that create a property right in labor *for the oxen*?

            I ask this not to express skepticism (although sometimes we do pose questions for that purpose) but rather as a genuine request for clarification. I guess I am not following your logic–which could be for any number of good reasons.

            Thanks in advance . . .

          • says

            Kevin:

            Under Hylton v. U.S. (1796) a tax on slaves (like the tax on the carriages in Hylton) would not have been a direct tax on labor, but an indirect excise tax.

            The Supreme Court said it better in Helvering v. Davis (1937) when it labeled the employer’s 50% portion of the Social Security tax as an “excise tax on the employer [which] is to be paid ‘with respect to having individuals in his employ.”

            So, in other words, I didn’t mean to suggest that taxing slaves effected a direct tax on labor. However, after the slaves were emancipated, assuming the former slave/wage earner was not exercising a federal privilege, taxing the wages they received from an employer would have been an unconstitutional direct tax on their labor because of lack of apportionment under the Direct Tax Clauses.

            Finally, the tax on an employer’s paid out wages does not create the property right in the employee’s labor. Rather, the 16th Amendment and the 1895 Pollock case creates it (because the employee’s labor is a property source for the employer from which taxable income/profit is derived).

            Stated differently, prior to the 13th Amendment, all plantation earnings derived from purchasing slaves belonged to the slaveholder, but after the 13th Amendment, the former slaves are entitled to wages, the former slaveholder is entitled to an entrepreneurial wage, and the federal government is entitled to a share of plantation profits/net income after all wages are paid (because labor/wages is a property source from which income is derived).

  9. Kevin R. Hardwick says

    Rick–

    What it meant to be a slave was to be a person who possessed no property rights at all, whether in their body or elsewhere. This was well established in the law of those states in which slavery was legal. To my knowledge–I am on the edge of my competence on this point–federal courts deferred to state courts on the law of slavery–that is, within federalism, slave law was widely understood to be a matter for the states to handle, not the federal government.

    Also–had anyone wished to assert a right to tax the interstate trade in slaves, there was no need to use Article I, Section 9 language. The interstate commerce clause was plenty sufficient. In the 1850s, when Southern statesmen really did express wide spread fears that the Federal government would tax the interstate trade in slaves, it was the commerce clause to which they referred.

    • djf says

      Kevin,

      I don’t think the federal government would even have had to rely on the interstate commerce clause to tax slaves, had it been politically possible to do so before the Civil War. I don’t see why the federal government couldn’t have imposed an excise tax on slaves under its general taxing power. Certainly, the Hylton case would have supported Congress’s power to impose such a tax as an excise, without apportioning it among the states.

    • says

      Kevin, yes the Commerce Clause could have been used to tax slaves, and this would have been better than using the Slave Trade Clause, but I agree with djf in that Congress had power under Hylton (1796) to tax slaves without using either the Commerce or Slave Trade Clauses.

      In any event, the 13th Amendment cleared things up by nullifying any early Constitutional slavery compromises, including the Three-Fifths Rule, Slave Trade Clause, Fugitive Slave Clause under Article 4, reference to Slave Trade Clause under Article 5, etc. (I think that’s all of them.)

      • Kevin R. Hardwick says

        Rick–

        All of that makes good sense, and I think we are in fundamental agreement. Or, at the very least, I am not sure where we are in disagreement.

        My comments are all historical in nature, or at least intended as such–if I adopt more expansive language, that is an error on my part, and should be attributed to my writing too hastily.

        As a matter of Constitutional Law, wasn’t the language of Article I, Section 9, paragraph 1 obsolete after 1808? After that date, wasn’t that language just an historical artifact, in constitutional terms inert?

        As an aside, I have contacted a colleague–a distinguished constitutional historian–for clarification of the details of the intent of the framers when they wrote the language of Article 1, Section 9, paragraph 1. I do agree that there are some real ambiguities there. It is pretty clear that the framers were working pretty hard to avoid using the word “slave,” but it also seems clear that their choice of language–importation and migration, for example–was purposeful, and had potential consequences beyond just slavery. And I agree also that the language limiting the effect of the paragraph just to those states in existence in 1788 is puzzling, and worth exploration. So I will report back once I hear back from my colleague.

        • says

          “As a matter of Constitutional Law, wasn’t the language of Article I, Section 9, paragraph 1 obsolete after 1808? After that date, wasn’t that language just an historical artifact, in constitutional terms inert?”

          Kevin, now that you mention it, that sounds right. So, apparently the real power to tax slaves after 1808 would come from the Commerce Clause and Hylton v. U.S. (1796).

        • gabe says

          Kevin:
          i would be interested in hearing what your colleague has to say regarding the phrase “now existing.”
          I had always thought that it was a roundabout way of saying that it (meaning slavery) would be confined to the states that currently employed slave labor. At a minimum, it would seem as a Constitutional “out,” as it were, for the Congress to prohibit slavery in any future states. Surely, the corollary could not be true, i. e., that we will only prohibit importation and impose a tax on existing states BUT not new ones.
          Does this make sense?

          take care
          gabe

  10. says

    To clarify my intentions for commenting above, I’d like to summarize by stating that the 1787 Constitution not only allowed for the taxation of slaves, with intent to ultimately ban the practice or phase it out, but also, through the creation of two classes of taxation (direct and indirect), to provide a Lockean property right in labor, not only to American slaves but to any natural person (human) wage earner who has access to a U.S. incorporated bank.

    This may sound like an outlandish statement, but becomes clearer once post-Civil War income tax law evolution is understood.

    We are often taught about “the” income tax by various authorities, but there are really three, all of which are indirect taxes that do not effect a direct tax on property “because of ownership” (Supreme Court words) under the Direct Tax Clauses.

    Springer v. U.S. (1880) represented a melding of two income taxes (taxes on income derived from property, and taxes on income derived from legal tender privilege) which is why it became necessary for the Supreme Court to modify the Springer case, which it did by striking down an 1894 income tax in Pollock v. Farmers’ Loan (1895), which necessitated ratification of the 16th Amendment in 1913.

    A third income tax was authorized on corporate privilege in Flint v. Stone Tracy Co. (1911).

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