The Constitution: Three Fifths

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. (Previous sentence amended by the 14th Amendment, Section 2)

Although a person didn’t have to be royalty (or rich) to be part of Congress, there were still barriers. Native Americans (Indians), for example weren’t taxed so they didn’t get to be counted as part of the census—they’re not going to be part of Congress. Originally, representatives and “direct taxes” (whatever that means—apparently it could cover just about any form of taxes) to the government among the States of the Union (that being the States which are United under this Constitution thus forming a New Government), were figured out by the addition (or a counting) of all free individuals—including those who are contractually not-Free for a set amount of years.

And it’s here where we come face to face with the original 3/5th Person rule Compromise.

People like to make up things and say that slave owners counted their slaves as sub-human…only 3/5th of a person (like this recent New York Times editorial implies Republicans might push for by reading the Constitution:

In any case, it is a presumptuous and self-righteous act, suggesting that they alone understand the true meaning of a text that the founders wisely left open to generations of reinterpretation. Certainly the Republican leadership is not trying to suggest that African-Americans still be counted as three-fifths of a person.)

Get this: slave owners wanted slaves counted as full persons; abolitionists wanted them rated as non-persons.

Why?

Well, note what’s going on in this section. If you have a State that has more persons counted in a census, you get more representative power in Congress. If you get more representative power in Congress, you have the ability to ensure that the votes are favorable in your direction.

Abolitionists didn’t want to give the slavery-states that Representative power but there was no conceivable way, without destroying the infant Union before it was full born, to deny them some sort of power. Plus, the South had more clout: they were richer, smarter, and fairly powerful. The 3/5th of a person Compromise allowed the South to have their voting power and gave the North some sort of comfort, albeit with some very unfortunate repercussions.

The charts I made earlier can’t be made to work everywhere, I think I can use them here by saying that the Compromise could have been seen as an expansion of State Power but it was really just a way of playing the system.


gov_statepower

The North wound up getting more people and thus more Representatives. If a slave counts as 3/5th of a person, that means the South needed to increase the amount of slaves to ensure they maintain representative power. A slave owner with 100 slaves will need to up his holdings by 67 slaves to ensure he has a good number added to the census. With no language in the constitution addressing the issue (say a degrading scale or something which would make having more slaves eventually a very costly taxable commodity but the South wouldn’t have cared about because they would have been so ahead of the game they could’ve fixed it later or something), the slave business boomed.

That’s overly simplistic though since I’m not really dealing with the history of slavery in the United States but rather reading the Constitution. Anyway, the 14th Amendment adjusted some of that language from this section:

14th Amendment, Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed.

This, of course, occurred because of the Civil War, the Emancipation Proclamation and the 13th amendment which reads:

Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction. Congress shall have power to enforce this article by appropriate legislation.

It was a point in American History where, if the Constitution were not ratified by the Southern States we would have been worrying about the wealthy Confederate States of America. But even with the ratified Constitution bearing the 13th Amendment we still had problems. Blacks were free, surely, but what rights did they have? Note:

But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

Okay, so males over 21 have to be allowed to vote or the state takes a hit regarding their Representation and census counting. Hrmm, that doesn’t seem to get rid of the problem, does it? I mean, if you were a former slave-owner, what would scare you more: taking a Representative hit or having the people you used to own have the right to put new Representatives in place? Sure, no one wants to lose Representatives but Ex-Slaves With Power would have been frightening.

Enter the 15th, the last of the Reconstruction Amendments.

15th Amendment, Section 1 and 2.  The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude. The Congress shall have power to enforce this article by appropriate legislation.

Now it’s made explicit: race, color, or previous state of servitude allows these persons, which are counted and added to the representative base, to vote. To be explicit, their right to vote cannot “be denied or shortened.” They have equal protection under the Constitution.

Of course, that didn’t end things in the South. The ex-slaves and blacks could still be counted as part of the census regarding the amount of Representatives, but they figured out all sorts of ways to stop them from voting. The burning cross on the lawn warned “You’re free to vote, but there will be consequences.”

Both of these Amendments were furthered by the 19th Amendment which states as follows:

19th Amendment The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex. Congress shall have power to enforce this article by appropriate legislation.

So now, we see that the right of citizens (which is the right to vote for representatives and to be taxed as a whole person) is extended to women. Congress is also granted power to implement laws to ensure that this right is not denied.

You would think that this is a power that infringes on the freedoms of the American public, but it technically isn’t. What the Government essentially said was “We are not a government that has Slavery” and “We are a government that doesn’t deny voting from its citizens” and the states ratified those things.

There’s a lot more that can be said but I want to keep trucking along.

The Constitution: Representative Requirements

We noted that Congress is divided into two houses which are to balance each other before any mention of other governmental powers: the Senate and the House of the Representatives. These two form one portion of the powers granted to the government. In this section, it’s great seeing how they’re elected.

Section 2 – The House. The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.

Every 2 years, the people of the states pick their representatives via voting. What’s huge about this is that these representatives are going to serve the entire country and not merely the state. These representatives become, together, the House of Representatives. This stipulation is also important because it means that Representatives aren’t voted in for life: they are truly subject to the will of the People. In Congress, this house of representatives will have more people than the other house (the Senate).

No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.

Representatives have to have certain qualification—but surprisingly very little others: at least 25 years old, been a citizen of the US for at least seven years, and have been an inhabitant of the State in which he is chosen.

So this means that a person who is an inhabitant of another state can’t be a Representative, people who are citizens for less than 7 years (or non-citizens at all), and if they’re under 25.

But one doesn’t have to be royalty, a noble, come from a family of money, own a lot of land—none of that. Not even a level of intelligence is stipulated here. Which is all awesome. It means I am able to be a representative.

The Constitution: All Legislative Powers

Article I: The Legislative Branch

Section 1 – The Legislature: All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

The rules for this new nation have to go about establishing certain offices, departments, and modes of operation. The first listed is the Legislative Branch—which I guess can mean the Part of the Government that Makes the Laws.

This is pretty major on several counts. Kings had executive, judicial and legislative powers—all facets of government were subject to them; Parliament also had that sort of power—although they are a legislative branch, they have sovereignty over the other branches. Parliament has ultimate power and the only thing it doesn’t have power over is future Parliament.

But this Congress is different. It is given all legislative powers, and even some modicum of judicial power (mentioned later) but it is not given ultimate sovereignty.

A question is raised though: can states make laws? Do they have legislative powers?

Well, surely, else the states would never have ratified the Constitution. The “all legislative power” here has to be contextually defined as well as exposed to the light of what’s going on with this newly created government.

In other words, this power is not something that is naturally inherent in Congress, but it is being vested (note the words “granted” and “vested”) in it by the true sovereigns of the new government: the people.

I saw this great example in one of the books I read. If we were to imagine every power that a government could have (like making laws, starting wars, arresting people, torturing citizens, housing armies in homes) and put them into a box we would have the diagram below. This is just governmental power.

What this Constitution is starting to do is draw a line in the box. On one side of the line are powers not granted to the governing body—that we put into the category of infringing on the freedom of the people—and on the other side are powers that are granted to the governing body.

The powers granted in Article 1 are “all legislative” but only as demarcated by the boundaries of its sections. Since this is dealing with the creation of a federal body by the people what we’re seeing is a division of power solely on the side of granted powers. The federal government would have specific powers, as defined by the Constitution—state government would be a separate issue (although the first Article does deal with some of those issues).

So all we’re dealing with here is a portion of the upper right hand quadrant.

The Constitution: Let There Be…A Nation

We the People of the United States…do ordain

I noted that the preamble really wasn’t the setting down of laws, rights or anything but I purposefully didn’t mention the monumental importance of the language that was used.

The States of the Americas were already labeled “united” in the Articles of Confederations—but nowhere near the way that the Constitution was using the term.

Each state functioned, essentially, as its own country. They could make their own currency. They could enforce their own state constitutions. Honestly, they could even go to war against one another (if attacked by invasion). When they became the united States, they were the individual states which, together, signed the articles to form a confederation—not a new government. In other words, they weren’t forming a new government; they were merely in union with certain purposes.

For example: if a law had to be passed, all the states had to agree to it and then they may or may not implement it in their own states. A strange predicament that. But this makes sense if it was merely a sort of non-aggression contract. This is why the Articles of Confederation even allowed Canada to be part of the united (small “U”) States if they so wished. Canada wouldn’t be giving up her sovereignty; she’d only be in union with the other States.

Imagine the situation: States, functioning independently, making different currencies, different laws that didn’t function across borders—and the horror of an angry overseas enemy constantly looming. Sure the Articles stuffed in some language about no State making a treaty with England but it’s still a shaky concept when you consider the fractured history of Europe. If anything, even though the Articles were helpful, they would ultimately be a failure resulting in a fractured landmass under the constant thread of a powerful enemy and no way to deal with all the problems without all the States agreeing to the fixes first.

Enter the Constitution.

It doesn’t speak in terms of States coming into an agreement and then forming this central government by ending the previous system and accepting all sorts of inequities; rather it speaks in terms of the people collectively decreeing something into existence which wasn’t there before. The People are the ones who are speaking and ordaining this central government and this then becomes the (capital “U”) United States.

This is interesting since the ordaining of the United States doesn’t necessitate all the States agreeing on a change in Confederation—this United States didn’t have much to do with the Confederation as it was. This was a new thing.

We see in Article 7 (which we’ll get to eventually) it doesn’t speak of enforcing this United States over all the States by merely nine States agreeing on it, rather it speaks of the United States grounded on the Constitution coming into being via ordination by nine States ratifying the thing.

In effect, in the Americas, you would have Canada (up north), The United States (made up of whatever nine states did ratify it) and then all the other States functioning as other Countries.

As states ratified the Constitution, they entered into this more perfect union of an ordained Government rather than signing a treaty of peace with this New Country. In this way, Rhode Island continued to exist as a separate entity while the United States marched on with George Washington as her President. Once Rhode Island finally ratified the constitution they didn’t form a contract with the United States, they became part of the country already known as the United States.

Therefore, the importance of this “We the People of the United States…do ordain” is monumental, even if it isn’t establishing rights or laws. There may have been attempts at democratic governments in the past, even in ancient Greece and Rome, but such attempts ended at the State level. This government, ordained by the People and for the people and ratified by the People of the States was a new thing: for good or ill, the world would watch would wonder and realize that it would never again be the same.