Slavery

Finkelman, Paul <paul.finkelman@albanylaw.edu> Paul.Finkelman at albanylaw.edu
Fri Feb 12 19:41:45 PST 2010


I am not at home today, and so I am writing from memory, but it is my recollection that none of the slave states in 1787 used slaves for he purpose of allocating representation in the state legistatures.  Representation was not "one man [and in those days it was only men], one vote" and Va and SC among others had property requirements for voting so the legislatures were more likely to favor the wealthy.  But I do not believe any state constitution counted slaves for allocation representaton in 1787


*************************************************
Paul Finkelman, Ph.D.
President William McKinley Distinguished Professor of Law
Albany Law School
80 New Scotland Avenue
Albany, NY 12208

518-445-3386 (p)
518-445-3363 (f)

paul.finkelman at albanylaw.edu
www.paulfinkelman.com
*************************************************
________________________________________
From: Scarberry, Mark [Mark.Scarberry at pepperdine.edu]
Sent: Friday, February 12, 2010 8:33 PM
To: Finkelman, Paul <paul.finkelman at albanylaw.edu>; Calvin Johnson; Sanford Levinson; Christopher Green; conlawprof at lists.ucla.edu
Cc: Lino Graglia
Subject: RE: Slavery

Paul writes: "No where else [in] the US were slaves counted for
representation."

But wasn't the malapportionment of state legislative districts in the
South a reflection of districting that counted slaves (though of course
they were not permitted to vote)? My recollection is that the plantation
areas were vastly overrepresented in southern state legislatures, and I
thought that was justified at the time on a basis that counted the
slaves (even if not as persons but rather as wealth). This helped the
major slave holders control the state governments, which would not seem
to have been good for the enslaved persons, any more than it was good
via the 3/5 clause to give southern whites extra political power at the
federal level to defend slavery.

Can we agree that, given that slaves were not going to be permitted to
vote in the South, it would have been better for the slaves for the
congressional apportionment formula to be 0/5 instead of 3/5? Akhil
Amar, and I'm sure many others, have made that point rather
persuasively. And I think it's implicit (or maybe fairly explicit) in
Paul's post.

Mark S. Scarberry
Pepperdine University School of Law


-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Finkelman, Paul
<paul.finkelman at albanylaw.edu>
Sent: Friday, February 12, 2010 1:23 PM
To: Calvin Johnson; Sanford Levinson; Christopher Green;
conlawprof at lists.ucla.edu
Cc: Lino Graglia
Subject: RE: Slavery

I am not sure what Calvin is talking about here.  In the Continental
Congress under the Articles of Confederation the 3/5ths ratio was to be
used for taxes, but it was never implemented.

In the Constitutional Convention the delegates thought it a convenient
tool for allocating representation. This was a wholly new concept  --
counting slaves for representation.  None of the southern states did it
at the time, although all of them taxed slaves.  In the Convention
opponents of the clause correctly noted that it was deeply odd to count
slaves to allocate representatives in government created to preserve
liberty.

Madison was not the one who proposed the 3/5th clause allocation for
representation.  He wanted to count slaves at 100% for the lower house
of the legislature and not count them at all for the upper house (or
vice versa) and not have equal representation in the Senate.

Calvin thinks the 3/5ths clause was pronorthern; on that point he would
be at odds with almost every northern politician and every opponent of
slavery.  No where else the US were slaves counted for representation.
It was a huge gift to the South at no cost, since direct taxes were
never levied.  Without the 3/5th clause many proslavery laws -- Mo.
Compromise; Texas Annexation; Fug. Sl law of 1850; probably the Kansas
Nebraska Act -- could never have been passed as they were.  And
Jefferson would have lost the presidency in 1800.

One might wish to argue that the 3/5th was a cost of having a new
constitution and a stronger Union.  But, we should not be deluded into
thinking this somehow favored freedom and the North.  Along with the
Slave Trade Clause and the Fugitive Slave Clause, and the bans on export
taxes, it was a gift to the South and slavery


*************************************************
Paul Finkelman, Ph.D.
President William McKinley Distinguished Professor of Law Albany Law
School 80 New Scotland Avenue Albany, NY 12208

518-445-3386 (p)
518-445-3363 (f)

paul.finkelman at albanylaw.edu
www.paulfinkelman.com
*************************************************
________________________________________
From: conlawprof-bounces at lists.ucla.edu
[conlawprof-bounces at lists.ucla.edu] On Behalf Of Calvin Johnson
[CJohnson at law.utexas.edu]
Sent: Friday, February 12, 2010 4:02 PM
To: Sanford Levinson; Christopher Green; conlawprof at lists.ucla.edu
Cc: Lino Graglia
Subject: Slavery

The 3/5ths clause started conceptually as a tax clause attempting to
measure the contribution of population to wealth, and apportioning tax
to wealth. The South argued that wage rates were half in South of what
they were in the North, indicating in equilibrium the contribution of
slaves.  As a tax provision, 3/5ths was pro-North, compared to what the
South wanted of half.
    The 3/5ths clasue became a representation measure, because Madison
needed the votes of those who thought that wealth should control, to
beat the Articles rule that all states would have equal weight.  Madison
hated the rule, ultimately continued in the Senate, that gives the name
State to 1000 people and they have the power of 10,000    (now htat
would be give the name Wyoming to 1000 people and they have the power of
69.000 Californians)  There was a significant fraction who thought that
government was instituted to protect property, and those who owned the
country should run it.  Even as a vote measure, the 3.5ths is a wealth
measure.    The default rule if not 3/5ths, however, would be that 100%
of slaves determined votes.  Women and children did not vote, but
increased the wealth of the state by the rough measure of population.
So 3/5ths is a pro Northern rule reducing the weight of the slaves.

        The dominant attitude of the Federalists in favor of the
Constitution was that getting the war debts paid trumped everything.
These were desperate times, and the nation was vulnerable to three
empires without a gun or a sloop to defend itself.  They pushed slavery
under the rug, eg. with Sherman (Conn) saying "Let us leave matters
where they stand and get about our business"

        The C would have settled more anti-slavery on its stuffing under
the rug compromises, if RI and NY had not boycotted and NH had been more
regular about attendance.  Their  absence turned an 7 to 6 nonslave
majority (counting Delaware on the South, when it is half between in
votes and slave population) into a usually 6-4 slave majority on all the
important votes. Still the compromises were always compromises to stuff
the hot wire issue and get about our business.

        The Southern slaveholders could not figure out whether the C was
for or against their interests.  In Virginia, the biggest and smallest
slaveholders thought it was against their interests. But in Maryland,
the biggest and smallest slaveholders were more pro-ratification.  The
patterns show confusion.

Again the question is compared to what.  By the morality of eternal
virtue, the C is sadly lacking.  But by the standards of the time, it
sure could have been worse.



Calvin H. Johnson
Andrews & Kurth Centennial Professor of Law The University of  Texas
School of Law
727 E. Dean Keeton (26th) St.
Austin, TX 78705
(512) 232-1306 (voice)
FAX: (512) 232-2399
Website: http://www.utexas.edu/law/faculty/cvs/chj7107_cv.pdf
For reviews, chapters, discounts and news on Johnson, Righteous Anger at
the Wicked States: The Meaning of the Founders Constitution (Cambridge
University Press 2005) see
http://www.utexas.edu/law/faculty/calvinjohnson/RighteousAnger/


-----Original Message-----
From: Sanford Levinson
Sent: Friday, February 12, 2010 2:44 PM
To: Calvin Johnson; Christopher Green; conlawprof at lists.ucla.edu
Cc: Lino Graglia
Subject: RE: An anecdote about oaths

So what about the 3/5 compromise?  Does Calvin's version of the
Constitution not contain that either?  Was the Constitution not a
"covenant with death and an agreement with hell," even given its
Johnsonian/Dworkinian reading as "the best that it can be"?  Frederick
Douglass did in fact argue that the original Constitution in no way
reinforced slavery, and I regularly ask my students if his is a tenable
(or plausible) reading of the pre-1865 Constitution.

sandy


-----Original Message-----
From: Calvin Johnson
Sent: Friday, February 12, 2010 2:40 PM
To: Sanford Levinson; Christopher Green; conlawprof at lists.ucla.edu
Cc: Lino Graglia
Subject: RE: An anecdote about oaths

I went to the Philadelphia National Constitution Center long after I
knew your position, and walked proudly to desk and signed it.  By then I
knew what pigs the Anti-Federalists were, and how petty and selfish
their positions were.  Anti-Federalism in New York meant preservation of
the NY harbor customs house taxes for purely NY purposes, denying the
Sacred Union the benefit of survival so as to tax the consumption of
NY's neighbors.  Anti-Federalist in Virginia was preservation of Slavery
from interference from the Eastern states.  Anti-Federalism in
Massachusetts was who knows what, least of all the Anti-Federalists
themselves.
   Like Democracy, you have to ask, compared to what?

Calvin H. Johnson
Andrews & Kurth Centennial Professor of Law The University of  Texas
School of Law
727 E. Dean Keeton (26th) St.
Austin, TX 78705
(512) 232-1306 (voice)
FAX: (512) 232-2399
Website: http://www.utexas.edu/law/faculty/cvs/chj7107_cv.pdf
For reviews, chapters, discounts and news on Johnson, Righteous Anger at
the Wicked States: The Meaning of the Founders Constitution (Cambridge
University Press 2005) see
http://www.utexas.edu/law/faculty/calvinjohnson/RighteousAnger/


-----Original Message-----
From: Sanford Levinson
Sent: Friday, February 12, 2010 2:29 PM
To: Calvin Johnson; Christopher Green; conlawprof at lists.ucla.edu
Cc: Lino Graglia
Subject: RE: An anecdote about oaths

I had a student a number of years ago who took Constitutional Law with
me and was persuaded by my argument that the Constitution in some sense
can be reduced to Article V and then the question is whether there are
any limits to amendment via Article V.  E.g., could we reinstitute
slavery or establish a theocracy so long as 2/3 or each house of
Congress proposed and 3/4 of the states ratified such changes?  If that
is the case, why would anyone ever swear binding fealty to such a
Constitution?  (Jack Balkin and I discuss this in the context of Kurt
Godel's reluctance to become a US citizen, which required "attachment to
the principles of the Constitution," at the conclusion of our essay on
"Constitutional Crises.")

So, when it came time to sit for the Texas Bar examination, the first
thing the Bar required was filling out a form in which the applicant
promises to be faithful to the Constitution.  My student asked them what
their theory of the Constitution was, since his answer depended on their
answer.  Some Constitutions deserve fealty, others do not.  As one might
expect, they were not amused by this response and ultimately refused him
the right to sit for the examination.  One might suspect that he really
didn't want to be a practicing lawyer anyway, but assume he did.  Should
I have advised him to sign the damned piece of paper with the mental
reservation that "the Constitution means exactly what I say it is, which
includes provisos that would assure that it could never become an
implement of evil," even though the Bar almost certainly would assume
that he is, for example, promising fidelity to what is ordinarily termed
"constitutional law"?

I am, of course, also interested in what it means to "sign the
Constitution" at places like the National Constitutional Center in
Philadelphia, which does indeed invite visitors to do so after touring
their exhibit and walking through "Founders Hall."  I refused to do so,
since I think we have a defective Constitution.  Was I wrong, or should
I have simply said, in effect, that I'm signing the "Constitution of my
dreams," as amended through Article V or, since I am an
Ackermanian/American, well outside of Article V?

Perhaps the real point is that no one really takes oaths all that
seriously, since all sorts of Wittgensteinian "mental cramps" are
generated if one really tries to figure out what an oath genuinely
"means."

sandy
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