The Constitution’s Three-Fifths Clause

One of the thornier issues facing the delegates to the Constitutional Convention, which began this week (May 25) in 1787, was how to apportion representation in the House of Representatives. Previously it had been agreed that the Senate would have equal representation, regardless of a state’s population, but in the House, representation was to be based on the number of people residing in the state.

Sort of.  It depended on how you defined “people” because, in an astonishing reversal of their long-held position that slaves were merely property, southern delegates to the convention suddenly insisted that slaves were people — just like you or me — and should count the same as whites in determining a state’s population, and therefore the number of representatives it sent to Congress.

Not surprisingly, delegates from the northern free states quickly reversed their long-held position that slaves were human beings. They argued that if slaves, which had always been considered property, were suddenly to become people, then why couldn’t horses and cows, which also were property, also be counted for the purposes of determining congressional representation?

To see these two positions, so passionately held in the past, so suddenly reversed and even exchanged in 1787 would have been comical had the issue not been so grave and the stakes so high.  The southern slave states were keenly aware that the North’s white population far exceeded theirs, and should only whites be considered for representation purposes, the North would dominate the House of Representatives, which at that time was considered the more important congressional body.  Principle was one thing. Self interest and the power needed to protect it were something else entirely.

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James Madison, Editor

(My hero) James Madison was born this week (March 16) in 1751.  He is called the “Father of the Constitution” because his Virginia Plan, presented at the Constitutional Convention in Philadelphia in 1787, served as the blueprint for the resulting U.S. Constitution.  He also is called the “Chief Architect of the Bill of Rights” because in the first Congress in 1789 he wrote and introduced a series of constitutional amendments, 10 of which became our Bill of Rights.

Madison also was a co-author of the Federalist Papers, the most important writings in defense of that Constitution, and his other writings—too numerous to mention—include the Memorial and Remonstrance Against Religious Assessments, which successfully supported Thomas Jefferson’s Virginia Statute for Religious Freedom in achieving complete separation of church and state in Virginia.

Yet for all of the famous and wonderful words he wrote, Madison’s most important contribution to his nation may well be one single word that he removed from a document.  It was Madison who edited the following sentence in the 10th Amendment:  “The powers not expressly delegated to the United States (meaning the federal government) by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”   Madison took out the word “expressly,” changing forever constitutional law and American history.

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The 22nd Amendment

“Thank God for the 22nd Amendment.” – Democratic consultant commenting on Republican President Ronald Reagan’s popularity.

When George Washington voluntarily retired from the presidency after only serving two terms, he set a precedent that lasted more than 140 years until Franklin Roosevelt, a Democrat, defied tradition and ran for, and won, the presidency four times.  FDR subsequently was criticized by Republicans, but he was well within his Constitutional rights.  Indeed, proposed language limiting the number of terms our elected officials could serve was rejected three times during the Constitutional Convention.  The Founding Fathers saw no reason why an effective and popular elected official should be arbitrarily forced out of office.  On the contrary, the Founders thought that short terms of office — interrupted by frequent elections — would better ensure accountability than limited terms, which is why members of the House of Representatives, the branch designed to be the closest to “the people,” have to run for re-election every two years.

But FDR’s successful run for a third and fourth term had several political ramifications that eventually resulted in passage of the 22nd Amendment, which limited a president to being elected to two four-year terms. Granted, this amendment, which was originally proposed by Republicans, was due in part to their jealousy over Roosevelt’s popularity and their resentment that the White House had become the personal fiefdom of the Democratic Party.  But it was also true that in his last term in office Roosevelt was a desperately sick old man who never should have run for a fourth term — a fact he was able to hide from the voters.

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