Friday, December 22, 2006

"A Certain Gulph:" Direct Taxes and the Three-Fifths Clause

Article I, Section 2, Clause 3 of the original Constitution contained the famous (or infamous) three-fifths clause, which provided that both Representatives in Congress and "direct Taxes" would be allocated based upon the number of "free Persons" and three-fifths of "other Persons," that is, black slaves:

"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 implication was that granting increased representation to white citizens in states with large numbers of black slaves was reasonable since, after all, they would bear a correspondingly greater amount of taxes.

In fact, however, there is substantial evidence that the participants at the Constitutional Convention fully expected that "direct Taxes" would rarely, if ever, be imposed, and that the linkage between representation and direct taxes was an intentional subterfuge:

"After numerous motions and amendments, the Randolph-Williamson scheme was passed with a proviso suggesting that the three-fifths rule was primarily a rule for apportioning direct taxation among the states, and that the rule of representation simply followed the same formula. As Williamson noted, 'less umbrage would perhaps be taken agst. an admission of slaves into the Rule of representation' if it posed as an extension of a rule of taxation. The fact that few delegates expected such taxes to be levied posed no obstacle to a formula which was designed to legitimate a decision taken for political reasons."

Jack N. Rakove,
Original Meanings: Politics and Ideas in the Making of the Constitution (Vintage 1997) at 74.

"Though a few delegates hinted that the new government might still resort to the 'federal principle, of requiring quotas' in the form of requisitions upon the states, experience had proved that the only workable revenue system was one that left the Union completely independent of the states. Consistent with their expectations about the modest responsibilities of the new government, the framers believed that its revenue needs would be met through a program of indirect taxation centering on import duties -- the most productive and least burdensome forms of revenue available to the prudent statesman."

Original Meanings at 180.

Indeed, the direct taxation measure seemed sufficiently unnecessary as a revenue-raising measure that Gouverneur Morris later proposed deleting it. "'He had only meant it as a bridge to assist us over a certain gulph;' -- that is, the issue of whether slaves should be counted at all -- 'having passed that gulph the bridge may be removed.'" Original Meanings 396, n. 44.

In fact, the expectation that direct taxes would rarely if ever be levied proved accurate:

"The direct tax provision of the three-fifths clause turned out to be almost meaningless, and accordingly all the three-fifths clause really did was give the slave states more power. As Morris predicted, the new federal government . . . depended on import duties for the lion's share of its income, and northerners paid the lion's share of the duties. Direct taxes, from the outset, were dismissed as unpopular, cumbersome, and impossible to enforce . . ..

"Only when the import trade was threatened by war did the federal government even consider direct taxes. In 1798 it appeared that the United States would soon be at war with France, and as a result many in Congress thought it dangerous for the federal treasury to be totally dependent on import duties. So Congress, with much grumbling, agreed to a direct tax of two million dollars. Similarly, during the War of 1812 the Madison administration desperately needed money, and Congress imposed direct taxes of three million dollars in 1813, six million dollars in 1814, and three million dollars in 1815. . . All in all, Congress resorted to direct taxes only four times in the seventy-two years between Washington's election and Lincoln's. In the other sixty-eight years direct taxes were neither enacted nor even seriously discussed."

Leonard Richard,
The Slave Power: The Free North and Southern Domination, 1780-1860 (Louisiana State Univ. Press 2000) at p. 55.

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