political elites of the period that slave labor was less productive than free labor, and so should not count as much as free labor in the calculus of taxable wealth. The antislavery Pennsylvanian James Wilson, who in the 1787 convention would introduce the three-fifths ratio into the Constitution’s apportionment clause, objected in this 1776 debate to the slaveholders’ labor-value calculus: “He acknowledged indeed that freeman worked the most; but they consume the most also. They do not produce a greater surplus for taxation.”16 What is of interest here is the point of agreement between the delegates of slaveholding and nonslaveholding states: both sides were of the view that “freeman worked the most.” Both sides took for granted the point, elaborated most famously by Adam Smith in An Inquiry into the Nature and Causes of the Wealth of Nations (1776), that free labor was more productive than slave labor.17 Yet the point of disagreement is equally significant to the debates over slavery in the early national period and later during the antebellum Union crisis, and to our historical understanding of modern citizenship. The value of labor, Wilson argued, ought to be considered in its relation to consumption as well as production: their relative values depended on the costs of reproducing these laborers.
This ratio for the enumeration of enslaved inhabitants as a state’s “index of wealth”—as laborers and thus as the producers of a state’s taxable surplus—was fine-tuned in the 1783 Congress, with an even greater number of positions on the relative values of slave and free labor: some delegates argued “that two blacks be rated as one freeman”; others argued “for rating them as four to three”; and still others “sincerely thought three to one would be a juster proportion.”18 In 1783, the debate again focused on the relative productivity of free and slave laborers—as calculated in the difference between the costs of reproducing the laborers and the value of those commodities produced by them. Nonslaveholding state delegates “were for rating the slaves high” in this ratio, arguing “that the expense of feeding and clothing them was as far below that incident to freemen as their industry and ingenuity were below those of freemen.”19The slaveholding state delegates did not dispute the view of the nonslaveholding state delegates regarding the costs entailed in maintaining and reproducing slave laborers (“the expense of feeding and clothing them”).20 Slaveholders insisted, however, on the much lower relative productivity of slave labor and thus a lower “taxable surplus” with respect to costs of reproduction, insofar as “slaves were not put to labor as young as the children of laboring families.” This relative productivity was lowered further, they asserted, because “having no interest in their labor, [slaves] did as little as possible; and omitted every exertion of thought requisite to facilitate and expedite it.”21 The slaveholders’ conception of the lower productivity of slave labor recognized the direct coercion required by slavery—formulated as an absence of “interest in their labor”—even as they argued that in the broader view of labor reproduction, slaves worked less than “laboring families.” This is the neglected prehistory of that legal form known as the “three-fifths compromise” of the 1787 constitutional convention.22
The three-fifths clause (of Article 1, Section 2) was of such importance in the debates of the 1787 convention because, as nonslaveholding state delegates recognized, if a state’s representation in the federal legislature were based on the number of all of the state’s inhabitants, including its slaves, the slaveholding states would have a representation vastly disproportionate to their free populations.23 Delegates of both slaveholding and nonslaveholding states objected to the idea that the three-fifths ratio, derived as we have seen as a compromise “index of wealth” for taxation, should be applied to the apportionment of representation. Slaveholding state delegates opposed the ratio because they demanded that all their slaves be counted. South Carolina and Georgia “insisted that blacks be included in the rule of representation equally with whites, and for that purpose moved that the words ‘three fifths’ be struck out.”24 Their position was unsurprising since they would then have a greater number of representatives and legislative power. What is of special interest to our genealogy of the slave’s absent presence in the Constitution is that once again the arguments turned upon the value-producing labor of slaves, as compared to free labor: “Mr. Butler insisted that the labor of a slave in South Carolina was as productive and valuable as that of a freeman in Massachusetts; that as wealth was the great means of defense and utility to the nation, they were equally valuable to it with freeman; and that consequently equal representation ought to be allowed for them in a government which was instituted principally for the protection of property.”25 As nonslaveholding state delegates recognized, this argument that slave labor was equally productive and valuable as free labor contradicted those arguments advanced by slaveholders earlier, in the context of taxation: “This ratio was fixed by Congress as a rule of taxation. Then, it was urged, by the delegates representing the States having slaves, that the blacks were still more inferior to freemen. At present, when the ratio of representation is to be established, we are assured that they are equal to freemen.”26
If slaveholding state delegates opposed the three-fifths ratio because they supported “considering blacks as equal to whites in the apportionment of representation,” nonslaveholding state delegates opposed the ratio because they did not want slaves counted at all.27 As we have seen, many were categorically opposed to the very idea of “slave representation.” In these objections, they returned to that point introduced by John Adams at the outset of the American Revolution regarding the contradictions in political representation produced by claiming “persons” as “property.” William Patterson of New Jersey “could regard negro slaves in no light but as property. They are no free agents, have no personal liberty, no faculty of acquiring property, but on the contrary are themselves property, and like other property, entirely at the will of the master.”28 Focusing on those attributes of free personhood recognized by the laws of the state—personal liberty, free agency, and will—and pointing to the contradiction between these attributes of free personhood and the slave’s legal condition as property, Patterson’s arguments highlight the framers’ shared conception of the direct link between legal “free agency” and “the acquiring of property,” both of which require that the person not be subject entirely to the will of another. Elaborating these attributes of the self-willing “person” to be represented by the state, Patterson reminded the other delegates of “the true principle of representation,” as “an expedient by which an assembly of certain individuals, chosen by the people, is substituted in place of the inconvenient meeting of the people themselves. If such a meeting of the people was actually to take place, would the slaves vote? They would not. Why then should they be represented?”29 Invoking the classic republican scene of assembly wherein citizens gathered together to agree upon the democratic will, Patterson cites the slave’s legal incapacities as marking the limits of the citizen. As property with no free agency or independent wills of their own, slaves would not in such a scene represent themselves; therefore they must not be represented.
The arguments of the nonslaveholding state delegates opposed to counting slaves equally with free persons in the apportionment clause centered upon this fundamental republican principle of representation: such inclusion of slaves defied the “true principle of presentation,” effectively making a slaveholder the representative of his slaves. Gouverneur Morris argued further that it was “encouragement of the slave trade, as would be given by allowing them a representation for their negroes.”30 A corollary objection founded on this republican principle of representation was that the citizens of their states “would revolt at the idea of being put on a footing with slaves.”31In these objections, we see once again the ways in which the figure of the slave functioned in the republican imaginary, as the opposite not only of the “free inhabitant” laborer but also of the citizen. This legal status of citizenship need not yet be obtained by the “free inhabitant,” as was the case for thousands of immigrants, indentured servants, and apprentices. Those “bound to service for a term of years”—under the only form of labor bondage explicitly named in the Constitution—were understood to be “free persons.” As free laborers, they were considered always-already becoming citizens, and thus a logical part of that population to be represented in the government of the new nation.
Proposing
