The Impact of the 3/5 Compromise

Our Founding Fathers were not perfect. Contrary to what we often hear via talk radio, the Internet or even in school, the men (and women) who helped build the American Republic were deeply flawed individuals who made more than their fair share of mistakes.

Of course, most of us recognize that our Founding Fathers were, in the end, humans, but too often we shy away from shedding too much light on some of the more serious mistakes they made. It is far more preferable to esteem these men as marble demigods whose images grace our currency.  This isn't to say that we should refrain from paying homage to our nation's founders. I for one strongly believe that the generation that brought us the likes of Washington, Jefferson, Madison, Franklin, etc. could easily be labeled as the "Greatest Generation" in all of American history (sorry, WWII vets. I still love ya!).

And there are plenty of pundits who are more than willing to point out where they believe our Founding Fathers went wrong. For example, Glenn Beck, America's favorite whack-job, believes that the gravest error made by our nation's founders was to not clarify the language of the Second Amendment.  HBO's Bill Maher believes that the greatest mistake made by the founding generation was that they should have extended the separation of church and state even further.  And Newt Gingrich, former Speaker of the House, believes that their greatest mistake was not establishing term limits for Congressmen.

And though I can see how all three men arrived at their respective conclusions, I vehemently disagree with them all.  The language of the Second Amendment, the separation of church and state, and congressional term limits are small potatoes when compared to the biggest mistake our Founding Fathers made.

During the Constitutional Convention, James Madison noted an important observation that he and virtually every other delegate had made. He claimed that of all the difficulties separating Northern and Southern states, slavery was by far the biggest. It was the elephant in the room that nobody wanted to address specifically, but also nobody could ignore completely. Southern concern for preserving their "peculiar institution" led to more discord than any other issue that came before the Convention.

To make a very long story short, the Convention eventually agreed to a compromise that was later enshrined in Article 1, Section 2, Paragraph 3 of the U.S. Constitution:

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 (my emphasis).  

Without even affording them the dignity of calling them what they were, all Black slaves (referred to here as "all other persons") were to be counted as 3/5 of a person in the national census.  The reason was simple: Southern leadership, who were more than aware of the North's superior population numbers, feared that they would be misrepresented in Congress.  Counting all Black slaves as 3/5 of a person, however, would even the odds and afford the South greater representation.  This, along with the Constitutional protection of slavery, helped to ease Southern concerns. Their "property rights" were now protected by federal law.

And they were right.

What became known as the 3/5 Compromise ended up having a dramatic impact in the South's ability to enforce their will on the whole of the infant American nation.  The first major example of how the 3/5 Compromise effected national politics was the Presidential Election of 1800.  In that election, Thomas Jefferson defeated John Adams by only 7 electoral votes.  And though Jefferson managed to win a few key states in the North, The Electoral College map clearly shows the first of many divisions that would separate the North and the South:

As the votes were counted, Northern politicians quickly realized that without the 3/5 Compromise, Jefferson would have been defeated. The fact that slaves were being counted as part of the South's representation (without having any actual say in their government) had given Jefferson the victory; an ironic historical reality considering the fact that Jefferson himself kept 300+ souls in bondage to himself.

Later elections would have the same results.  The election of James Madison in 1812 and Martin Van Buren in 1836, were also determined in large part by the South's inflated electoral numbers that were caused by the 3/5 Compromise.

And it wasn't just in presidential elections that the 3/5 Compromise left its impression. Renowned historian Gary Wills contends that the 3/5 Compromise impacted a great number of historical events in the early republic:

Without the 3/5 Compromise, slavery would have been excluded from Missouri...Andrew Jackson's Indian removal policy would have failed...the Wilmot Proviso would have banned slavery in territories won from Mexico...the Kansas/Nebraska bill would have failed...and the likelihood of Civil War would have been dramatically reduced.

It is a cruel irony of history that the South's ability to exert its will, especially with regards to protecting slavery, was a self-inflicted wound that our Founding Fathers brought upon the infant American republic.  How much damage could have been averted is impossible to determine. The historical sin of "presentism" should prevent us from making such speculations.  But what is certain (with and without the lens of hindsight) is that the 3/5 Compromise was a tremendous blunder on the part of our nation's founders. It is an ugly skeleton in the American closet that should be seen for what it was: a terrible attempt to pacify a nation that was determined to keep its Black brothers and sisters in bondage in the "Land of the Free."

Religion Left to the States?

Or Were the State Constitutions
Hated by the Founding Fathers?

One of the common practices of the "Christian Nation" crowd is to try and argue that America's "Christian founding" is to be found in the verbiage of the various state constitutions (examples can be found here). Of course, they do this because the federal charters (i.e. Declaration of Independence, Constitution, Bill of Rights, etc.) have ZERO references to Christianity of any kind. In fact, they were kept religiously neutral on purpose. On occasion they will try to say that the language of the Constitution, Bill of Rights, etc. is somehow, in a roundabout way, related to some obscure biblical or Christian teaching. This argument, however, holds little water and most "Christian Nation" advocates worth their salt don't really bother with them, which leaves them with the state constitutions as the only cannon fodder for their argument.

But it's mostly smoke and mirrors.

And though there are some good arguments to be had with these state constitutions (here's one I particularly like) I maintain that they still don't prove anything of substance. It's not that the state constitutions are irrelevant. Quite the contrary. They are incredibly important to America's founding. However, they do not have any basis in establishing America as a Christian nation.

Now, it is not my intention to dispute the Christian Nationalists in this particular post. Instead, I want to simply site what I see to be a strong counter-argument to the "religion was the domain of the states" thesis. In his book, Unruly Americans, historian Woody Holton's central thesis is that the federal constitution was created primarily out of a disdain for the state constitutions -- which were seen as being "too democratic" and "too misrepresenting" for a legitimate republic to function. Holton writes:

The textbooks and the popular histories give surprisingly short shrift to the Framers' motivations. What almost all of them do say is that harsh experience had exposed the previous government, under the Articles of Confederation, as too weak. What makes this emphasis strange is that the Framers' own statements reveal another, more pressing motive. Early in the Constitutional Convention, James Madison urged his colleagues to tackle "the evils...which prevail within the States individually as well as those which accrued to our national character and interest from the inadequacy of the Confederation."

Madison, preoccupation with what he later called "the internal administration of the States" was by no means unique. On the eve of the convention, expressions of concern about the weakness of Congress, numerous as they were, was vastly outnumbered by the complaints against the state governments. "What led to the appointment of this Convention?" Maryland Governor John Francis Mercer asked his colleagues. Was is not "the corruption & mutability of the Legislative Councils of the States?"

Once the Constitution had been sent out to the thirteen states for ratification, its supporters affirmed that some of the most lethal diseases it was designed to cure were to be found within those same states. William Plumer of New Hampshire embraced the new national government out of a conviction that "our rights & property are now the sport of ignorant and unprincipled legislatures." In the last of the Federalist Papers, Alexander Hamilton praised the Constitution for placing salutary "restraints" on the "ambition of powerful individuals in single states."

What was wrong with the state assemblies? Given the modern perception that the Founding Fathers had devoted their lives to the principle of government by the people, it is jarring to read their specific grievances. An essay appearing in a Connecticut newspaper in September 1786 complained that the state's representatives paid "too great an attention to popular notions." At least one of those Connecticut assemblymen thoroughly agreed. In May 1787, just as the federal convention assembled, he observed that even the southern states, which under British rule had been aristocratic bastions, had "run into the extremes of democracy" since declaring independence.

Simply put, if Holston's thesis is correct (and I believe he is) it means that state Constitutions became of little consequence, since they were esteemed to be a threat to effective republican government. Having a Christian text or invocation of God would be nothing more than just that...text. Now, I still remain unconvinced that the Founding Fathers' sole purpose for establishing a new Constitution was to eradicate the evils of state power. In addition, the Founders did compromise some power in the federal constitution to the states (not originally but later in the Bill of Rights). So clearly not everyone had such a powerful disdain for state power. But it is clear that the Constitution was created because the delegates felt that the states were too powerful...too free. A strong federal system (which did not sanction Christianity above all else) was seen as essential to preserving the new nation.

The Second Amendment Saga

Of all the amendments to the Constitution perhaps none has created as much controversy as the 2nd Amendment. The "right to keep and bear arms" has caused both grief and comfort for generations of Americans who have fiercely debated the meaning behind these 26 simple words:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

What exactly does it mean? What were the Founding Fathers suggesting? Does it even apply to the 21st century? What is a "militia" and how is it to be "well regulated"? Do all guns qualify as "Arms"? And if not, where do we draw the line?

These are just a few of the many questions that have hovered around the Second Amendment for the past 200 years, and depending on who you ask there are different answers to each of these aforementioned questions. So how are we to make sense of this issue? How can we separate the political/pop-culture jargon from the actual substance? Well, let's look at a recent Supreme Court decision, which I believe helps to illustrate the division that exists between pro and anti-gun advocates, and how they both appeal to history to defend their respective positions.

As you all know by now (unless you have been hiding under a rock) the U.S. Supreme Court passed a very important ruling just a couple of years ago that dealt with one of the basic questions surrounding the 2nd Amendment: do average citizens have a right to own a gun, in their own home, for the purposes of protection? In the case, District of Columbia v. Heller, the court ruled 5-4 that there is a constitutional right to keep a loaded handgun in your personal residence for self-defense. This ruling overturned the D.C. handgun ban, which was one of the strictest gun-control law in our nation's history.

Justice Antonin Scalia, who wrote for the majority opinion, stated that the justices "are aware of the problem of handgun violence in this country...But the enshrinement of constitutional rights necessarily takes certain policy choices off the table...It is not the role of this court to pronounce the Second Amendment extinct."

In his dissenting opinion, Justice John Paul Stevens stated that the Second Amendment applies only to a militia, and that the Constitution’s framers were afraid that the new federal government would disarm the populace, as the British had tried to do. Thus, the current understanding of the Second Amendment needs a modern interpretation and revision:

The Second Amendment was not written to grant citizens a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. Prohibitions on carrying concealed weapons, and prohibitions on dangerous and unusual weapons is well within the scope of this court's power to enforce and poses no attack on the Constitution.

Ok, fair is fair. Justice Stevens is right when he mentions that the United States no longer has a need for a militia...at least not in the way our founders envisioned. But does that close the door on the Second Amendment? Do we as citizens have no right to bear arms simply because there is no need for a militia in the 21st century?

I say no. Citizens still have a right to keep and bear arms and here's why:

Like every other anti-gun advocate, Justice Stevens tries to argue that the right to keep in bear arms in an archaic law that was established by our founders to ensure that their new colonies had a well armed militia. And now that we have no need for a militia, this law is obviously outdated. He is wrong. The establishment of the Second Amendment was not done for the exclusive purpose of maintaining a militia.

During the debates of the Constitutional Convention, several key founders (most noticeably James Madison) argued that a Bill of Rights was a necessary component for the new American government, a component that would ensure that certain basic rights would never be infringed upon by a local, state or federal government. And when creating the Second Amendment, men like Madison didn't pull their words out of thin air. They relied on other important documents that helped to blaze the trail for America's Second Amendment. In the 1688 English Bill of Rights we read the following:

That the Subjects which are Protestants may have Arms for their Defence suitable to their Conditions and as allowed by Law.

In addition,our Founding Fathers (particularly Madison) appealed to the works of one William Blackstone, who, in his Commentaries on the Laws of England, wrote the following:

"That it is a fundamental right of the people to protect and maintain inviolate the three great and primary rights, of personal security, personal liberty, and private property...and the right of the individual to keep and bear arms to their condition and degree, and such as are allowed by law...is the surest way to ensure our liberties."

So why are these sources significant? Because neither one makes any mention of a "militia." In fact, they both speak of personal protection and the right to "keep and bear arms."

If that's so, then where did this "militia" talk come from? Well, it's actually more simple than you might think. Recent experience had told the colonists (now Americans) that citizens keeping and bearing arms was both a good and prudent thing to do. The experience of Lexington and Concord, where the British tried to disarm American colonists, had struck fear into the hearts of many. It was only natural that such a fear would make its way into the law. The important caveat to note here is that whether or not there is a militia is irrelevant to the issue of keeping and bearing arms. It's simply an argument over semantics.

In my opinion, the Second Amendment is much more than a simple law to create a militia. As Justice Scalia notes, the right to keep and bear arms is not a suggestion, a good idea, or an outdated law. It's a RIGHT!

And our Founders knew it.

Native American Influence on the Constitution

Today is Constitution Day. On this date we commemorate the Constitutional Convention signing this new governing document and beginning the process of making it the law of the land.

Over at my other blog American Creation, we have long debated the influences that motivated the Founding Fathers to draft the American Constitution. Everyone from John Locke to Rousseau, Montesquieu to the Holy Bible have been discussed at some length. And while these influences were undoubtedly important, to the formation of the Constitution, there is at least the possibility of a more local influence at play.

Recent scholarship on the history of the American Constitution has uncovered some interesting insights into the role that various Native American tribes may have had on the formation of the Constitution. James Mann, one of the leading writers on this topic, has stated the following with regards to this provocative Constitution/Native American connection:

So vivid were these examples of democratic self-government [from colonial Indian history] that some historians and activists have argued that the [Indians'] Great Law of Peace directly inspired the American Constitution. Taken literally, this assertion seems implausible. With its grant of authority to the federal government to supersede state law, its dependence on rule by the majority rather than consensus and its denial of suffrage to women, the Constitution as originally enacted was not at all like the Great Law. But in a larger sense the claim is correct. The framers of the Constitution, like most colonists in what would become the United States, were pervaded by Indian images of liberty.

And from the book, The Iroquois Constitution:

During the bi-centennial year of The Constitution of the United States, a number of books were written concerning the origin of that long-revered document. One of these, "The Genius of the People," alleged that after the many weeks of debate a committee led in part by South Carolina's John Rutledge, sat to discuss the wide range of disputations amongst the delegates...This Committee of Detail was having trouble deciding just how to formalize the many items of discussion into one document that would satisfy one and all. Rutledge proposed they model the new government they were forming into something along the lines of the Iroquois League of which he had observed in Albany. While there were many desirable, as well as undesirable, models from ancient and modern histories in Europe and what we know now as the Middle East, only the Iroquois had a system that seemed to meet most of the demands espoused by the many parties to the debates. The Genius of the People alleged that the Iroquois had a Constitution which began: "We the people, to form a union..."

Skeptics of course point out that the overwhelming majority of written material from the Founders present at the Constitutional Convention contains nothing of their debates regarding the Iroquois Indians. In addition, there are no records or written documents from the Iroquois Confederacy that could substantiate any claim as to their similarities with the government established in the Constitution. With that said, keep in mind two things: first the surviving written record of the Constitutional Convention is relatively small -- most of which is found in the writings of James Madison. The delegates agreed to keep it as such in order to protect the "legacies" of the various participants. Second, the Iroquois Confederacy was predominantly illiterate, meaning that a search for a written historical document would prove futile. However, if oral history is taken into account, some scholars of the Iroquois argue that the confederation they established has a very close resemblance to the Constitution.

Now, I am not saying that I agree with this Native American/Constitution theory. While it is quite an interesting proposal I personally believe that the evidence to support it is circumstantial at best. However, circumstantial evidence and oral history should not simply be discarded entirely. Native American involvement with the affairs of British colonials was vast to say the least. As a result, the exchange of goods, supplies and KNOWLEDGE would have been a natural occurrence.

Either way, this makes for a nice diversion from the traditional Bible-thumping, Locke-quoting, Montesquieu-loving, Eurocentric history that is almost the exclusive sources of any discussion on the origins of the U.S. Constitution.