Interesting Things About the Articles

Amending the Articles of Confederation: The Infamous 3/5 Clause

The Articles of Confederation, during their eight years of operation, were never amended. Congress proposed one amendment, in 1783, but it failed of ratification by the states.

That failed amendment, however, lit a fuse which burned ever more brightly until the end of the Civil War.

The process for amending the Articles was in one way easier, but in another way harder, than the later process for amending the Constitution of the United States (COTUS). On the one hand, Congress could propose amendments by a simple majority of states. The COTUS requires a two-thirds majority in each house of our bicameral Congress. On the other hand, the COTUS allows an amendment to be ratified by three-fourths of the state legislatures. The Articles required ratification by every legislature, which proved to be a high bar indeed.

The proposed amendment of 1783 concerned the formula for allocating expenses among the states. From its beginning in 1775, the Continental Congress had operated under the principle that national expenses (since Congress could not tax) should be shared proportionately among the states. But, proportionately to what? The earliest allocations were proportional to estimated population. Then, the Articles stipulated that revenue should be supplied “in proportion to the value of all land within each State, granted to or surveyed for any person”.

That would have been fine, had the nation employed an army of assessors to appraise land on a consistent basis, and in the same currency. It didn’t. Congress resorted to Latin in explaining the difficulty of estimating land values, in 1781:

But the attainment of such an estimate, flagrante bello, is difficult; perhaps in some states, which are the seat of war, impracticable; in every view it must be remote. Thus Congress, without an accurate knowledge of the comparative wealth and abilities of the respective states, were, from the necessity of the case, obliged not only to call for aids, but to apportion those aids on such information as they possessed.

Thus by 1783 Congress wished to revert to apportionment by population. But, what about the enslaved? For purposes of determining a state’s share of national expenses, should a slave count the same as a free person, or as nothing, or as something in between?

It’s tempting to approach this in modern terms, as an argument about human worth. It was not. First and foremost, it was an argument about money. Should states with large slave populations (the South) pay more, or less? More philosophically, it was an argument about the wealth generating capacity of enslaved versus free persons. Did a state with 1,000,000 free persons have the same ability to bear taxes as a state with 500,000 free persons and 500,000 enslaved?

Congress took up the question in March 1783. According to James Madison’s notes, the debate ran like haggling in a bazaar: “Mr. Osgood (MA) said that he could not go beyond 4 to 3”—that is, counting slaves as 0.75 of a person. Mr. Rutledge (PA) “would agree to” 2 to 1 “for the sake of the object”. One North Carolinian argued for a lower number on anti-slavery grounds: “Mr. Williamson said he was principled against slavery, but that he thought slaves an encumbrance to society instead of increasing its ability to pay taxes”. Of course Mr. Williamson’s principles just happened to lower his state’s tax burden.

On April 18, 1783, Congress settled on a ratio of 5 to 3, counting slaves as three-fifths of a free person. They incorporated the text in the following proposed amendment, which passed 9-1 with one state divided:

So much of the 8th of the Articles of Confederation and perpetual union, between the thirteen states of America, as is contained in the words following, to wit:

“All charges of war and all other expenses . . . shall be supplied by the several states in proportion to the value of all land within each State granted to or surveyed for any person” . . is hereby revoked and made void; and in place thereof it is declared and concluded, the same having been agreed to in a Congress of the United States, that "all charges of war and all other expenses . . . shall be supplied by the several states in proportion to the whole number of white and other free citizens and inhabitants, of every age, sex and condition, including those bound to servitude for a term of years, and three-fifths of all other persons not comprehended in the foregoing description, except Indians, not paying taxes, in each State; which number shall be triennially taken and transmitted to the United States in Congress assembled, in such mode as they shall direct and appoint.”

Note that the words "slave" or "enslaved" did not appear in the text. They were apparently unmentionable.

Note also that Congress proposed to work the amendment into the text of the eighth article, rather than adding it as an amendment at the end of the Articles of Confederation. Congress later took the opposite approach when drawing up the Bill of Rights, the first amendments to the COTUS, in 1789. The members in 1789, urged especially by Senator Roger Sherman (CT), drafted the Bill of Rights as numbered amendments, separate from and in addition to the existing articles. Congress followed this precedent with every subsequent amendment. The Sherman approach makes it easier on historians—since the amendments run in chronological order—but harder on lawyers, since it may not be obvious how or where an amendment supersedes the earlier text.

The amendment to the 8^th Article of Confederation was not ratified. Congress last counted in early 1786 and reported that either eight or nine states had ratified, after which no further mention appears in the Journals.

But, the three-fifths clause did not die. The issue of counting slaves arose anew in the COTUS Convention of 1787, with two new twists. First, Congress would no longer allocate all expenses among the states. Congress would finance expenses by laying either direct (property) or indirect (tariffs and excise) taxes, and only direct taxes would need to be assessed proportionately to population. Second, population would now determine representation in the House of Representatives and the electoral college, as well as direct taxation. It was difficult to imagine why slaves should be counted at all for determining representation. Surely, they were not part of the polity on whose behalf Congress was legislating?

But then, what about taxation? One of the principles of the Revolution had been “no taxation without representation”. Was it defensible to tax states on the basis of their enslaved population, but not to count the same for purposes of representation?

The COTUS convention chose the path of least resistance. It revived the 3/5 ratio, agreed upon after so much haggling four years earlier, and applied it to both direct taxation and representation.

The South got the better of this bargain. Congress under the COTUS seldom assessed direct taxes, since tariffs and land sales brought in sufficient revenue. The South paid but little price for counting slaves toward taxation. But, the additional representation helped the South to dominate the federal government until the Civil War. Southerners won 13 of the first 16 presidential elections, and at least one Southerner, Thomas Jefferson, would not have been elected without the electoral votes from the 3/5 clause. The only way the South could have done better would have been to count slaves as full persons.

Because of Sherman’s technique of adding amendments to the end of the Constitution, the 3/5 clause remains in its text, although of course it no longer has any application. In modern times, it’s easy to forget its convoluted origins and read it as a statement of worth, an assertion that an African American is worth three fifths of a white person. The shadow of the Articles of Confederation stretches on, sometimes in unpleasant ways.

Sources: Journals of the Continental Congress, Volumes 20, 24, and 30; Letters of Delegates to Congress, Volume 20

Slavery in the Confederation Era

When the Articles of Confederation were drafted (1776-77), there was no distinction between “slave states” and “free states”. Slavery was legal, and was practiced, everywhere in the United States. (The would-be state of Vermont abolished slavery in 1777, but other states did not recognize Vermont--see The Race to Become the Fourteenth State).

The distinction, rather, was between states with large slave populations (Southern) and states with small slave populations (Northern). We don’t know the exact numbers, because no census was taken until 1790. At that time, the percentage of the population enslaved ranged from near zero to 6% (New York and New Jersey) in the North, versus 15% (Delaware) to 43% (South Carolina) in the South. We also know that the percentage enslaved in the South would have been even higher, except that significant numbers of slaves were able to take advantage of Revolutionary War chaos, and British army assistance, to free themselves. Many evacuated along with the British after the war.

The Articles of Confederation did not address slavery. Only two articles offered even indirect recognition that it existed. Article IV restricted to “free inhabitants” the privilege of free travel across state lines, and Article IX provided that state army quotas should be “in proportion to the number of white inhabitants” in each state. (African Americans, however, did serve in both state militias and the army.)

As the Confederation era progressed, most action with respect to slavery took place at the state level. Emancipation movements gained ground in the North, spurred especially by antislavery Quakers and by persons inspired by revolutionary rhetoric that “all men are created equal”. Massachusetts abolished slavery by court ruling in 1783, and Pennsylvania (1780), Connecticut (1784), and Rhode Island (1784) abolished it by law. The laws of the latter three states, however, applied only to persons born after the laws were enacted; those already enslaved were forced to live out their lives in bondage, although they couldn’t be sold out of state.

In addition, slavery seems to have died a natural death in New Hampshire in the 1780’s, without the state enacting any definite law.

The Revolutionary War had had one additional salutary impact upon slavery, in interrupting the ghastly trans-Atlantic slave trade. With the coming of peace, a convention of Quakers from the mid-Atlantic states, including Virginia, petitioned Congress (October 1783) to make the interruption permanent. The slave trade, they wrote, was “contrary to every humane and righteous consideration”, and was “laying the ground for future calamities”. Congress should “discourage and prevent so obvious an evil”.

The Articles of Confederation, however, granted Congress no power to restrict imports, nor even to impose tariffs. Congress meekly asked the states (January 1784) to ban the slave trade within their own borders. Some states had already done so, and more did do so, but South Carolina and Georgia refused, and admitted ships carrying at least ten thousand persons into slavery between 1783 and 1787.

Finally, in 1787, Congress took its first material step against slavery by banning the practice in the newly created Northwest Territory; see Creating the Northwest Territory for the story.

Sources: Journals of the Continental Congress, Volumes 25 and 26; Zilversmit, Arthur, The First Emancipation: The Abolition of Slavery in the North, 1967; Voyages: The Transatlantic Slave Trade Database, www.slavevoyages.org, accessed 2018