Constitution Article 1 §2.3, Part One

Recent events have alerted me to the importance of civic engagement. To better understand this political system we have inherited, I’m making a careful study of the Constitution. I’m sharing here in case others similarly engaged might want to discuss it. At the very least, making my study public holds me accountable to stick with it. After all, in a functioning democracy we should all be Constitutional scholars.

After reading the Preamble, I’ve started working through the first Article (out of seven), which deals with the legislature.

Our story so far

For those who want to review:

We the People http://wp.me/p21nlZ-13P

Preamble http://wp.me/s21nlZ-preamble

On to the Articles! http://wp.me/p21nlZ-13V

Article 1 Section 2.1 http://wp.me/p21nlZ-14P

Article 1 §2.2 http://wp.me/p21nlZ-154

Which brings me up to:

Section 2, paragraph 3:

3: 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.  The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct. The Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative; and until such enumeration shall be made, the State of New Hampshire shall be entitled to chuse three, Massachusetts eight, Rhode-Island and Providence Plantations one, Connecticut five, New-York six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina five, South Carolina five, and Georgia three.

Big decisions, on the side

The longest paragraph yet, and eye-glazingly dull reading. Can a document this bureaucratic really be at the heart of centuries of impassioned argument? Okay. Deep breath. Dig in.

Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union

A couple things are accomplished here that don’t seem to be the main intent of the sentence:

1. The Framers have allowed for direct taxation by the federal government (a no-brainer to us, but not a given at the time, I imagine, and therefore probably a pretty big deal).
2. They have allowed for a union of states that may not be exactly those involved at the time. It was possible (at least at this time as I read this) for a represented state to opt out, or for a new state to come in and join the club. Obviously, both of these possibilities have been attempted, with dramatically different results. And even though most of us think of the U.S. as a fixed nation with 50 states, that attitude is not quite unanimous. See: Puerto Rico.

Who counts?

But the main thread of the sentence is this:

The two sides of the revolutionary’s freedom coin, taxation and representation, are both apportioned the same way, and that way is by population. So far they’re sticking with the whole individual equality thing. Even though it’s the basis of our national identity, in this era of modern oligarchy, still kind of a revolutionary idea.

Of course they have to go and spoil it in the very next clause, by establishing how much different kinds of people count. Oh Framers. If only had read more fiction, you would recognize this as The Tragic Flaw, aka Original Sin – the stain present from the beginning, poisoning the garden and everything that follows. This early devaluing of human life (however progressive it may have seemed at the time) may very well be the our national tragic flaw that causes the whole grand enterprise to fall.

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.

American People = Free People + Indentured Servants – Natives + 3/5 X Slaves

Free People count. Yes. Of course. The essence of America.

Indentured servants count. Yes. Although not always recognized in their time, the Framers got that a person’s economic bondage was not a reflection of their human worth and right to self-determination.

Natives don’t count. They are neither taxed nor represented. In this we see the first national recognition of Indian sovereignty, separate from the United States from the very first Article of the Constitution. We’ll probably be revisiting this topic.

The 3/5 Compromise

Slaves count for a little more than half a person. Oh Framers. In a document that is, for its time, amazingly practical and direct, they were too cowardly to even call out slaves, referring only to “all other persons.” One source claims they avoided the word “slave” anywhere in the Constitution to avoid “sullying” the document. As if the word, rather than the fact, was filthy. Then and now, everyone knew they meant slaves, rather than say, non-citizens residing in the state. But wait. I’m assuming. Let’s consult the Congressional  Annotated Constitution to confirm.

We find it on page 121, in footnote 343.

The part of this clause relating to the mode of apportionment of representatives
among the several States was changed by the Fourteenth Amendment, § 2 and
as to taxes on incomes without apportionment, by the Sixteenth Amendment.

Enlightening. I guess we’re still squeamish about the “s” word.

Ironically, in the 3/5 Compromise, those opposed to slavery would have excluded Blacks from the count entirely – their inclusion allowed slave-states higher levels of representation in the House, and therefore greater leverage to preserve the status quo. Playing a numbers game with human lives.

I supposed the only morally defensible course of action would have been to deny slave-states entry in the Union in the first place, on the grounds that they were opposed to the principles upon which it was founded. It’s an interesting premise for alternative history, but seems to have never been seriously considered in real life (please fill me in if I’m wrong). I guess the colonies figured they needed all the help they could get. And it is hard to imagine them pulling off the revolution without the talents of George Washington, Thomas Jefferson, and about 23 others of the 55 delegates.

Sick at heart, I will leave the exploration of amendments to another day, knowing that while the 3/5 rule is no longer law, it’s legacy is alive and strong in the way our nation continues to treat people of color.

The rest of the paragraph looks pretty dry, and honestly, this contemplation of the “defective from the start” part of a document that continues to have so much influence on our lives has got me a little down. I’m going to go watch cartoons with my kids and revisit this section next week.