FReeper Book Club: The Debate over the Constitution, Federalist #54

More like a lawyer than a historian, Madison states the Southern case and ties representation to taxation, noting the pitfalls in the Southern argument.

² The next view which I shall take of the House of Representatives relates to the appointment of its members to the several states which is to be determined by the same rule with that of direct taxes.

³ It is not contended that the number of people in each state ought not to be the standard for regulating the proportion of those who are to represent the people of each state.

⁴ The establishment of the same rule for the appointment of taxes will probably be as little contested, though the rule itself in this case is by no means founded on the same principle.

⁵ In the former case, the rule is understood to refer to the personal rights of the people with which it has a natural and universal connection.

⁶ In the latter, it has reference to the proportion of wealth of which it is in no case a precise measure, and in ordinary cases a very unfit one.

⁷ But notwithstanding the imperfection of the rule as applied to the relative wealth and contributions of the states, it is evidently the least objectionable among the practicable rules and had too recently obtained the general sanction of America not to have found a ready preference with the Convention.

⁸ All this is admitted, it will perhaps be said, but does it follow from an admission of numbers for the measure of representation or of slaves combined with free citizens as a ratio of taxation, that slaves ought to be included in the numerical rule of representation?

¹⁰ They ought therefore to be comprehended in estimates of taxation which are founded on property and to be excluded from representation which is regulated by a census of persons.

¹² I shall be equally candid in stating the reasoning which may be offered on the opposite side.

¹³ “We subscribe to the doctrine,” might one of our Southern brethren observe, “that representation relates more immediately to persons, and taxation more immediately to property, and we join in the application of this distinction to the case of our slaves.

¹⁴ But we must deny the fact that slaves are considered merely as property and in no respect whatever as persons.

¹⁵ The true state of the case is that they partake of both these qualities: being considered by our laws in some respects as persons, and in other respects as property.

¹⁶ In being compelled to labor, not for himself, but for a master; in being vendible by one master to another master; and in being subject at all times to be restrained in his liberty and chastised in his body by the capricious will of another, the slave may appear to be degraded from the human rank and classed with those irrational animals which fall under the legal denomination of property.

¹⁷ In being protected on the other hand in his life and in his limbs against the violence of all others, even the master of his labor and his liberty, and in being punishable himself for all violence committed against others, the slave is no less evidently regarded by the law as a member of the society, not as a part of the irrational creation, as a moral person, not as a mere article of property.

¹⁸ The federal Constitution, therefore, decides with great propriety on the case of our slaves when it views them in the mixed character of persons and of property.

²⁰ It is the character bestowed on them by the laws under which they live, and it will not be denied that these are the proper criterion, because it is only under the pretext that the laws have transformed the Negroes into subjects of property that a place is disputed them in the computation of numbers, and it is admitted that if the laws were to restore the rights which have been taken away, the Negroes could no longer be refused an equal share of representation with the other inhabitants.

²² It is agreed on all sides that numbers are the best scale of wealth and taxation as they are the only proper scale of representation.

²³ Would the Convention have been impartial or consistent if they had rejected the slaves from the list of inhabitants when the shares of representation were to be calculated, and inserted them on the lists when the tariff of contributions was to be adjusted?

²⁴ Could it be reasonably expected that the Southern states would concur in a system which considered their slaves in some degree as men when burdens were to be imposed, but refused to consider them in the same light when advantages were to be conferred?

²⁵ Might not some surprise also be expressed that those who reproach the Southern states with the barbarous policy of considering as property a part of their human brethren should themselves contend that the government to which all the states are to be parties ought to consider this unfortunate race more completely in the unnatural light of property than the very laws of which they complain?

²⁶ “It may be replied, perhaps, that slaves are not included in the estimate of representatives in any of the states possessing them.

²⁸ Upon what principle, then, ought they to be taken into the federal estimate of representation?

²⁹ In rejecting them altogether, the Constitution would in this respect have followed the very laws which have been appealed to as the proper guide.

³¹ It is a fundamental principle of the proposed Constitution that as the aggregate number of representatives allotted to the several states is to be determined by a federal rule founded on the aggregate number of inhabitants, so the right of choosing this allotted number in each state is to be exercised by such part of the inhabitants as the state itself may designate.

³² The qualifications on which the right of suffrage depend are not perhaps the same in any two states.

³⁴ In every state, a certain proportion of inhabitants are deprived of this right by the constitution of the state, who will be included in the census by which the federal Constitution apportions the representatives.

³⁵ In this point of view the Southern states might retort the complaint by insisting that the principle laid down by the Convention required that no regard should be had to the policy of particular states towards their own inhabitants, and consequently that the slaves as inhabitants should have been admitted into the census according to their full number in like manner with other inhabitants who, by the policy of other states, are not admitted to all the rights of citizens.

³⁶ A rigorous adherence, however, to this principle is waived by those who would be gainers by it.

³⁸ Let the case of the slaves be considered, as it is in truth, a peculiar one.

³⁹ 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.

⁴⁰ “After all, may not another ground be taken on which this article of the Constitution will admit of a still more ready defense?

⁴¹ We have hitherto proceeded on the idea that representation related to persons only and not at all to property.

⁴³ Government is instituted no less for protection of the property than of the persons, of individuals.

⁴⁴ The one as well as the other, therefore, may be considered as represented by those who are charged with the government.

⁴⁵ Upon this principle, it is that in several of the states, and particularly in the state of New York, one branch of the government is intended more especially to be the guardian of property and is accordingly elected by that part of the society which is most interested in this object of government.

⁴⁷ The rights of property are committed into the same hands with the personal rights.

⁴⁸ Some attention ought, therefore, to be paid to property in the choice of those hands.

⁴⁹ “For another reason, the votes allowed in the Federal Legislature to the people of each state ought to bear some proportion to the comparative wealth of the states.

⁵⁰ States have not, like individuals, an influence over each other arising from superior advantages of fortune.

⁵¹ If the law allows an opulent citizen but a single vote in the choice of his representative, the respect and consequence which he derives from his fortunate situation very frequently guide the votes of others to the objects of his choice, and through this imperceptible channel the rights of property are conveyed into the public representation.

⁵³ It is not probable that the richest state in the Confederacy will ever influence the choice of a single representative in any other state.

⁵⁴ Nor will the representatives of the larger and richer states possess any other advantage in the Federal Legislature over the representatives of other states than what may result from their superior number alone.

⁵⁵ As far, therefore, as their superior wealth and weight may justly entitle them to any advantage, it ought to be secured to them by a superior share of representation.

⁵⁶ The new Constitution is in this respect materially different from the existing Confederation as well as from that of the United Netherlands and other similar confederacies.

⁵⁷ In each of the latter, the efficacy of the federal resolutions depends on the subsequent and voluntary resolutions of the states composing the Union.

⁵⁸ Hence the states, though possessing an equal vote in the public councils, have an unequal influence corresponding with the unequal importance of these subsequent and voluntary resolutions.

⁵⁹ Under the proposed Constitution, the federal acts will take effect without the necessary intervention of the individual states.

⁶⁰ They will depend merely on the majority of votes in the Federal Legislature, and consequently each vote, whether proceeding from a larger or smaller state, or a state more or less wealthy or powerful, will have an equal weight and efficacy in the same manner as the votes individually given in a state legislature by the representatives of unequal counties or other districts have each a precise equality of value and effect, or if there be any difference in the case, it proceeds from the difference in the personal character of the individual representative, rather than from any regard to the extent of the district from which he comes.”

⁶¹ Such is the reasoning which an advocate for the Southern interests might employ on this subject, and although it may appear to be a little strained in some points, yet on the whole I must confess that it fully reconciles me to the scale of representation which the Convention have established.

⁶² In one respect, the establishment of a common measure for representation and taxation will have a very salutary effect.

⁶³ As the accuracy of the census to be obtained by the Congress will necessarily depend in a considerable degree on the disposition, if not on the co-operation, of the states, it is of great importance that the states should feel as little bias as possible to swell or to reduce the amount of their numbers.

⁶⁴ Were their share of representation alone to be governed by this rule, they would have an interest in exaggerating their inhabitants.

⁶⁵ Were the rule to decide their share of taxation alone, a contrary temptation would prevail.

⁶⁶ By extending the rule to both objects, the states will have opposite interests which will control and balance each other, and produce the requisite impartiality.

² The next view which I shall take of the House of Representatives relates to the appointment of its members to the several states which is to be determined by the same rule with that of direct taxes.

Madison has stood here before. This is a minefield that will be navigated successfully for seven decades, before the final and inevitable explosion will carry the country into a level of violence unimaginable to the victors of the War of Independence. For how are direct taxes to be apportioned among the states? It was a question under consideration, not at the Constitutional Convention of 1787, but four years earlier, when many of the same luminaries met to consider an amendment to the Articles of Confederation on just that topic. Thomas Jefferson was there, as was Madison himself.

The rapidly impoverished Confederation had to come to some arrangement with the states to supply the revenue necessary to meet the obligations of war. The old system, whereby taxes were apportioned according to the possession of land, had foundered as certain small states had become wealthy in disproportion to certain large agricultural states: Massachusetts, for example, when compared with Georgia. How then to make this fairer? The Confederation was not in the position of simply issuing a diktat on the matter, because any change had to be approved by unanimous consent, and to date the impression of unfairness was to a great deal responsible for the refusal of the states to honor the debts contracted by the Confederation government.

In any case it appeared fairer to the men proposing a new system to base it on the ability of the states to produce actual wealth, which avoided the complications of attempting to tax productive farmland at the same rate as impassible wilderness. The alternative to taxing by property, and one more accurately reflecting the ability of the states to produce wealth, was by population.

But there was a pitfall with the method of apportioning direct taxation by population. Part of the population was property, and not merely in a rhetorical sense. Slaves were not taxed as land, but they would be taxed as population. Naturally the Southern representatives saw this as a means to shift an unfair tax burden onto them. Jefferson, in his notes on the debate in 1783, pointed out that the result would be that the Southern states would be taxed “according to their numbers and their wealth conjunctly, while the northern would be taxed on numbers only.”

The compromise, therefore, involved adjusting the tax burden by only a portion of the slave population. Benjamin Harrison of Virginia proposed that ratio to be one-half, while others felt it should be three-quarters, that is, each slave counting for three-quarters of an inhabitant in terms of tax liability. A compromise left that ratio at three-fifths, and it was proposed by none other than Madison himself. In the end, this amendment to the Articles failed to gain unanimous consent and was dropped. The financial crisis that resulted helped lead to the Constitutional Convention four years later.

But the precedent had been set, and although the issue under consideration at the Convention was not taxation, but the apportionment of political representation, the same issue of the slave population threatened to block any consensus. This time the motivations were aimed in the opposite direction: the Southern states were now very much in favor of counting slaves fully as that would confer extra members in the House of Representatives. Inevitably Madison’s original compromise came up as a ready-made solution, and in the event, quite a successful solution, appearing in the proposed Constitution as Article I, Section 2, clause 2. It was a solution to quite a different problem, however, and its original proponent was furious at the implications.

Madison had already expressed his opinion of slavery in Federalist #42: it is “barbarism”, “oppression” (42-28), and its continuation a “criminal toleration of an illicit practice” (42-29). In this essay it is “the barbarous policy of considering as property a part of their human brethren,” and he regrets that Congress will be barred from its prohibition for twenty years after ratification (42-26) by the terms of Article V.

He now attempts to summarize the cases of the opposing sides. On the one hand, there is the case for not counting slaves as a basis for apportioning the representatives of the House. It is his own compromise of 1783.

¹⁰ They ought therefore to be comprehended in estimates of taxation which are founded on property and to be excluded from representation which is regulated by a census of persons.

¹⁴ But we must deny the fact that slaves are considered merely as property and in no respect whatever as persons.

¹⁵ The true state of the case is that they partake of both these qualities: being considered by our laws in some respects as persons, and in other respects as property.

There is a discussion of the merits of these cases in the dialectic between 21 and 35, and Madison states that it is the Southern states who have offered the compromise.

³⁶ A rigorous adherence, however, to this principle is waived by those who would be gainers by it.

Thus the compromise. Madison states it in terms that resound today and indicate he was quite aware of the moral implications. Outside the context of the essay the phrase is appalling, and Madison intends it to be, for it is his unsparing expression of the Southern case.

Debased by servitude, their rights, elsewhere described as “inalienable,” are taken from them by the state. Madison stares unblinking at the conclusion.

²⁰ It is the character bestowed on them by the laws under which they live...it is only under the pretext that the laws have transformed the Negroes into subjects of property that a place is disputed them in the computation of numbers, and it is admitted that if the laws were to restore the rights which have been taken away, the Negroes could no longer be refused an equal share of representation with the other inhabitants.

There, unfortunately, Madison’s characterization of the Southern case breaks down, for were any such concession made, were those rights restored, some 600,000 men would not have been forced to die to resolve the issue in the coming century. The actual language of the Constitution serves to mask the truth, slavery being nowhere mentioned by name, and to be accurate, the phrase “other persons” might refer to persons other than, or in addition to, slaves. Nevertheless, this essay serves to lift the curtain of niceties to expose the stark reality underneath. A slave was, in Madison’s terms, a man whose inalienable rights had been taken away by the state, and with them, two-fifths of the man. That it was not the entirety of the man was merely a function of compromise among those whose principal concern was to retain full rights for themselves.

It was the price paid for having a Union at all, and its extirpation in blood would be the price paid for maintaining that Union when at last the bill came due. Yet were the bargain refused, there would have been no Union, but there still would have remained slavery, perhaps with even less hope of its termination. There are no perfect moral answers here, and in fact no straightforward ones either.

For what might have ensued had the slaves been granted full status as citizens in the population of the House of Representatives, but still forced to live under the laws that refused them their rights as citizens? The slaveholding states would have been granted extra representatives, to be sure, as in fact they were at the rate of three-fifths. Would those extra representatives have voted the interests of the slaves, or of their masters? It is no hypothetical question, for the representatives who were elected have a voting record that may be consulted to provide a concrete answer. They would have voted as they did vote, in favor of the continuation of the institution of slavery. Granting the slaves this sort of “representation” would serve only to act against their interests as citizens and free men.

But Madison has already addressed the opposite course, granting the slaves no status as “inhabitants” at all, and regarding them merely as property in the eyes of the taxation authorities. The South would not have accepted it, and altogether with cause (24).

It is, in fact, an ethical impasse, brought about by the basic incompatibility of representative government with the institution of slavery. The only way out was the termination of that institution, an action the proposed Constitution prevented Congress from even addressing for twenty years. The institution that might have kept the United States from uniting would, before the end, tear it apart.

The revisionist historian would argue that Madison is using weasel words to justify an atrocity, and this merely serves to confirm his observation that the Founders were racists, and thus America is a racist nation. One hears this argument daily in the history departments of most American colleges. It is further buttressed by the observation that had this rule not been embedded in the Constitution, the act of confederation would have been impossible. One can challenge this argument with knee-jerk patriotism, but the better challenge is to refute it with logic and history. State your case.

James Madison's statements on this subject are well known, and none will be included below. Less well known, however, are the declarations of others of the period who understood the challenges faced by the Framers, and saw the Constitution's provisions as a means of "annihilating" the slave trade.

"On the other side, gentlemen said, that the step taken in this article towards the abolition of slavery was one of the beauties of the Constitution. They observed, that in the Confederation there was no provision whatever for its being abolished; but the Constitution provides that Congress may, after twenty years, totally annihilate the slave trade, and that, as all the states, except two, have passed laws to the effect [prohibiting importation of slaves], it might reasonably be expected that it would then be done. In the interim, all the states were at liberty to prohibit it." - James Neal, Ratification Process, Massachusetts

"I am sorry that it could be extended no farther; but so far as it operates, it presents us with the pleasing prospect that the rights of mankind will be acknowledged and established throughout the Union. If there was no other lovely feature in the Constitution but this one, it would diffuse a beauty over its whole countenance. Yet the lapse of a few years, and Congress will have power to exterminate slavery from within our borders." - James Wilson, Signer of the Constitution

"I apprehend that it is not in our power to do anything for or against those who are in slavery in the Southern States. No gentleman within these walls detests every idea of slavery more than I do; it is generally detested by the people of this commonwealth; and I ardently hope that the time will soon come when our brethren in the Southern States will view it as we do, and put a stop to it; but to this we have no right to compel them. Two questions naturally arise: If we ratify our Constitution, shall we do any thing by our act to hold the blacks in slavery? or shall we become the partakers of other men's sins? I think neither of them. Each state is sovereign and independent to a certain degree, and the states have a right, and they will regulate their own internal affairs as to themselves appear proper; and shall we refuse to eat, or to drink, or to be united, with those who do not think, or act, just as we do? Surely no. We are not in this case, partakers of other men's sins, for in nothing do we voluntarily encourage the slavery of our fellowmen. A restriction is laid on the federal government, which ould not be avoided, and a union take place. The federal convention went as far as they could. The migration or importation, etc. is confined to the states now existing only; new states cannnot claim it. Congress, by their ordinance for erecting new states, some time since, declared that the new states shall be republican, and that there shall be no slavery in them." - General William Heath, Ratification Process, Massachusetts

George Mason, delegate from Virginia and Signer of the Constitution, spoke of the role of the British government in the orgins of the slave trade:

"This infernal traffic originated in the avarice of British merchants. The British government constantly checked the attempts of Virginia to put a stop to it. The present question concerns not the importing states alone but the whole Union. Maryland and Virginia. . . had already prohibited the importation of slaves expressly. North Carolina had done the same in substance."

Mason's comments already had been borne out by none other than Edmund Burke, in his "Speech on Conciliation" as early as 1775 when the British government had heard a proposal for enfranchising the slaves as a means of retaliation toward the colonies. Here are Burke's words:

"With regard to the high aristocratic spirit of Virginia and the southern colonies, it has been proposed [in the British Parliament], I know, to reduce it by declaring a general en-franchisement of the slaves. This project had its advocates . . . yet I never could argue myself into any opinion of it. Slaves are often much attached to their masters. A general wild offer of liberty would not always be accepted. History furnishes few instances of it. It is sometimes as hard to persuade slaves to be free as it is to compel freemen to be slaves; and in this auspicious scheme we should have both these pleasing tasks on our hands at once. But when we talk of enfranchisement, do we not perceive that the American master may enfranchise too, and arm servile hands in defence of freedom? _ . . . slaves as the unfortunate black people are, and dull as all men are from slavery, must they not a little suspect the offer of freedom from that very nation, one of whose causes of quarrel with those masters is their refusal to deal any more in that in human traffic? An offer of freedom from England would come rather oddly, shipped to them in an African vessel which is refused an entry into the ports of Virginia or Carolina, with a cargo of three hundred Angola negroes. It would be curious to see the Guinea captain attempting at the same instant to publish his proclamation of liberty and to advertise his sale of slaves." -Edmund Burke, March 22, 1775 - Speech on Conciliation

Finally, from Thomas Jefferson's "Autobiography":

"The first establishment in Virginia which became permanent was made in 1607. I have found no mention of negroes in the colony until about 1650. The first brought here as slaves were by a Dutch ship; after which the English commenced the trade and continued it until the revolutionary war. That suspended. . . their future importation for the present, and the business of the war pressing constantly on the (Virginia) legislature, this subject was not acted on finally until the year 1778, when I brought a bill to prevent their further importation. This passed without opposition, leaving to future efforts its final eradication."

Let’s say that no compromise was made and the states formed into northern and southern national governments. Precedents in history would say that the two countries would have had a series of skirmishes ending in a large war. Possibly one or two southern states would have seceded to the northern side as slavery became impractical but before the West was won, this issue would probably be resolved.

Discussion Topic

One can challenge this argument with knee-jerk patriotism, but the better challenge is to refute it with logic and history. State your case.

He was arguing a practical compromise from within an inconsistent situation. He did think that the national government would be an improvement and I think that most on the Left would say that it was over the Articles of Confederation. He created a government that was based on sound theory, which eventually overcame this hypocrisy.

I did find it a disturbing article to read. It makes the point that good writing can’t overcome a bad argument.

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