for which The Federalist Papers were written, it was the three-fifths clause of the apportionment provision, more than any other “slave clause,” that highlighted the ambiguity of the slave’s form of appearance in the letter of the law, and exposed the contradictions of political representation in a slaveholding nation. Gouverneur Morris, the Pennsylvania delegate credited with writing the Constitution’s celebrated preamble, highlighted this direct link between political representation and the rights of modern citizenship in his objections to the three-fifths clause: “Upon what principle is it that the slaves shall be computed in the representation? Are they men? Then make them citizens, and let them vote. Are they property? Why, then, is not other property included?”2 Like Morris, many nonslaveholding state delegates objected to any inclusion of slaves in the apportionment clause, as against the very “principle of representation.”3Slaveholding state delegates insisted, however, that their slaves be included in this “numerical rule of representation” on the grounds that the labor of these enslaved “other persons” contributed to the wealth of the nation. It was during these debates over the “true principle of representation” and this fundamental conception of modern citizenship that slavery emerged as the central point of division in the new nation.4
It was also in these debates that the Constitution first came to be described as a matter of “compact” between states with differing economic interests, requiring “compromise.”5 Because the case of the slaves was so peculiar, Publius continued: “Let the compromising expedient of the Constitution be mutually adopted which regards them as inhabitants, but as debased by servitude below the equal level of free inhabitants; which regards the slave as divested of two fifths of the man” (FP 339, emphasis in original). This characterization was a misleading rhetorical conceit, insofar as it implied that a slave was regarded in law as “divested” of manhood or humanity, rather than divested of legal rights and attributes. Historically, it has led to judicial and popular misunderstandings of the status of the slave in the original Constitution, and to critical misunderstandings of how slave personhood was recognized by state and society in the late eighteenth century. Yet there was partial truth in the characterization, insofar as slaves were regarded, by slaveholders and antislavery reformers alike, as “debased by servitude”; and they were included in the calculus of this constitutional provision for political representation only after extensive debate over the economic value of such servitude.6
The debates over the value of the slave’s debasing “servitude” reveal the political-economic history concealed by the slave’s form of appearance in the letter of the law, a form of appearance whose ambiguity would become central to the antislavery struggle, the Union crisis, and the definition of citizenship in a modern racial state. For the primary purposes of this chapter, the debates illuminate the historical understanding of freedom, slavery, and servitude as varying states of subjection to the law. As I observed in the introduction, the apportionment provision employed the bondsman as a figure to distinguish between the qualified freedom of those persons “bound to service for a term of years” and the absolute unfreedom of those “other persons” bound as slaves. Looking behind this form of appearance and recovering the social relations simultaneously codified and masked in this legal form supplements historical understandings of the “problem of slavery” and the “problem of freedom” in the Age of Revolution.7 The peculiar case of the slaves’ representation in the new Constitution was a political-economic problem, whose history reveals the intertwined roles of slave and “free” bond-laborers in the dialectical transformation of race as a mediation of class.
To appreciate the historical significance of the three-fifths clause to the Constitution’s inscription of the rights of citizenship, it is important to note that the three-fifths ratio did not begin as a ratio for the apportionment of representation. The ratio came from the 1783 Congress, when James Madison—who would later wear the mask of Publius in The Federalist No. 54 to explain its incorporation into the “compromising expedient” of the Constitution—proposed the ratio as a “compromise” in the context of negotiations over the calculation of property values, or “the index of wealth,” for the purposes of taxation.8 The application of the ratio to representation in the 1787 convention “was an entirely new concept.”9 While the bondsman’s form of appearance in this clause would suggest that the provision was primarily about political representation, its repressed history reveals it to be equally about property, and the wealth-producing value of those laborers owned as property.
In fact, this debate over the ratio for the enumeration of enslaved “other persons” began with the American Revolution and the drafting of the Articles of Confederation, likewise as a debate over the “index of wealth” for taxation. The debates of the Second Continental Congress over assessing the financial contributions of states to the cost of the War of Independence introduced those terms of labor that would be central to the 1787 constitutional convention’s debates over the three-fifths clause and “the true principle of representation” in the new republic: “the index of wealth,” and the relative values of free and enslaved laborers. At the center of this ongoing debate, from 1776 through 1788, was the question of how slaves were to be regarded under national law as opposed to local state law: as property or as persons.10
In the 1776 Congress of Confederation, representatives of the nonslaveholding states argued for taxation based on all the people of a state, including its slaves: “John Adams (of Massachusetts) observed that the numbers of people were taken by this article as an index of the wealth of the State, and not as subjects of taxation. That as to this matter, it was of no consequence by what name you called your people, whether that of freeman or of slaves. That in some countries the laboring poor were called freemen, in others they were called slaves: but that the difference as to the state was imaginary only.”11 In Adams’s argument, the difference between slaves and the laboring poor was merely nominal: considered in their material conditions—without property of their own and serving as the perpetual dependent hirelings of others—the laboring poor were the equal of slaves; and thus for the state’s purposes, the laboring poor’s difference from slaves, their nominal freedom, was “imaginary only.” Adams elaborated upon the imaginary character of this distinction between slaves and the formally free laboring poor by proposing a hypothetical transformation: “Suppose, by any extraordinary operation of nature or of law, one half the laborers of a State could in the course of one night be transformed into slaves—would the State be made the poorer, or the less able to pay taxes?”12Adams’s counterfactual reinforces the political-economic understanding that it was the slaves’ “equal” status as laborers, as persons who “produce…profits,” that mattered to the “wealth of the nation,” and that the economic values of free and enslaved laborers were the same, insofar as the “surplus” produced by both types of laborers would be taxed to support the new nation-state: “Certainly five hundred freemen produce no more profits, no greater surplus for the payment of taxes, than five hundred slaves.…It is the number of laborers which produces the surplus for taxation; and numbers, therefore, indiscriminately, are the fair index of wealth.”13Drawing together his arguments regarding the equality of conditions and the equal value of slave and free laborers, Adams concluded: “That it is the use of the word ‘property’ here, and its application to some of the people of the State, which produces the fallacy.…That a slave may, indeed, from the custom of speech, be more properly called the wealth of his master, than the free laborer might be called the wealth of his employer; but, as to the State, both were equally its wealth.”14With this assessment of their equal status as producers of taxable surplus wealth for the state, Adams introduced those key words of the slavery debates, “property” and “persons,” whose contested meanings as applied to the peculiar case of the slave are linked to that “imaginary” distinction between slave and free laborers.
Unsurprisingly, slaveholding state delegates opposed a numerical rule of taxation inclusive of those “people of the State” they owned as slaves, and disputed Adams’s claims regarding the equal value of slave and free labor: “Mr. Harrison (of Virginia) proposed, as a compromise, that two slaves should be counted as one freeman. He
