Wednesday, May 28, 2008

Almost, But No Cigar, IMHO

I recently agreed to review a few of Vinny's posts wherein he believes he has victoriously pointed out blatant falsehoods or mistakes of local radio hostess Sandy Rios. She is also president of Culture Campaign, a Fox news contributor, and a sometime columnist at The thread in question concerned the US Constitution, Article 1 Section 2, and whether it states that blacks are three-fifths of a person.

Now before I go on, it is on purpose that I have chosen not to reprint the section. It is a good idea for anyone to go and look it up, and better yet, review on occasion our founding documents.

So anyhoo, the complaint was that Rios stated to a caller that the Constitution didn't say that, and that it was in a later court decision. Well, I didn't review the decisions in question and will hereby concede that point to Vinny, that though I feel for the purpose of the discussion Rios was in with the caller, her blunder is a minor point. (Vinny disagrees.)

But as to the Constitution piece, I have to say that I don't believe it does condemn blacks to only 3/5 of a person. Rather, I believe, based on reviewing Federalist 54, that it states they are at least 3/5 of a person. The distinction is important.

At the time of the crafting of the Constitution, the slave owning states (SOS) had a habit of flipping on blacks being either people or property. If it served them to do so, blacks were people. If it served them to do so, they were property. The section in question had to do with apportioning representatives to the states. The SOS decided that they would get more representation if they were to consider blacks as persons equal to anyone else. The non-SOS said, "Whoa, dudes!" (ala Spicoli) "Which is it? Are they people or property?" As Alexander Hamilton put it, to some extent they were both. They were often treated legally as the law treats everyone else, but they were at the same time, owned as property was. For the most part it was totally based on the whim of the slave owner.

But Hamilton argues that they could not be totally on par with free men because they were not free. That's not to say that Hamilton thought they weren't people, but that the law of the states in question treated them as property at least a portion of the time. So the non-SOS insisted that the SOS couldn't have it both ways. The result, as I see it, is that it was decided that blacks were at least 3/5 of a person if not entirely so, and it was then written in the Constitution as such. This guaranteed that they could not be treated as less. Not much consolation if you're a black person, but a sight better than being akin to a chair, and a whole lot better than being whatever the slave owner says you are based on his whim at the moment. A slim distinction to be sure, but what if you were a slave?


Vinny said...

To slaves, it did not make a lick of difference. They were still chattel and they were still treated as such. The apportionment clause merely determined how much influence their masters would have in the government.

blamin said...

You're absolutely correct vinny. And I believe that's exactly the point made by MA.

But does that in and of itself negate the constitution in your eyes?

Marshall Art said...

To re-iterate (or is it "reiterate"?), to be only three-fifths of a person, or at least three-fifths of a person is indeed a small distinction. If that was your only choice, one or the other, which sounds better to you? To be sure, I don't know that it was even the point of stating it in that way. It's certain the slave owning states would have preferred to have each slave counted. THAT certainly wouldn't matter to the slave, either, as he would still be a slave and for most other purposes considered property, not person. It seems that the constitutional debate forced some acknowledgement of their humanity for no other reason than their humanity, if you get my meanin'. In that, the distinction means more, despite the lack of day to day difference in their personal lives. IMHO.

Vinny said...

I believe that the Constitution of the United States was a truly tremendous accomplishment, but the Framers’ inability to fully realize the principles of freedom by abolishing slavery left the document tragically flawed. I think we can recognize that flaw without diminishing the accomplishment, but I don’t think that there is any point in trying to tease some silver lining out of the Apportionment Clause.

Marshall Art said...


I think it's pretty harsh to call it flawed when in fact it wouldn't exist without the clause written as it was. To be more precise would be to say that some of the Framers had trouble with the concept of abolishing slavery. But think of the power that would have been granted the slave owning states were they to be afforded the privilege of counting each slave rather than only three out of five. How much more difficult would it have been to seek relief for the slaves. You call it a flaw, but I think it was the first step in the right direction.

But to the issue of whether or not Rios was wrong, I think she was, but not in the way that you think. As I said, counting the slaves as equal would not have made them so and would likely have further cemented the notion that what they were and when was totally up to those who owned them. As such, the Constitution didn't say they were only three fifths, but at least three fifths. But cut me a little slack. I'm still studying the issue.

Vinny said...

Can you think of any relief that the slaves obtained by virtue of the three-fifths provision that they would not have been able to obtain had the Southern states been able to count them as full persons for purposes of representation? I can’t.

Because the slave states obtained representation based on that which they deemed property, southerners sat in the White House for fifty of seventy years between the ratification of the Constitution and the Civil War. The Chief Justice of the Supreme Court came from a slave state for sixty of those years and southerners held a slight majority on the Court for that period. I suppose that I can imagine ways in which things might have been worse, but it seems to me that the three-fifths clause was more than sufficient to block any significant attempts to alleviate the plight of the slaves.

In fact, as soon as there was the slightest prospect of progress on the issue of slavery, the Southern states seceded and brought on the horrors of the Civil War. Even this cataclysm left much work to be done before the descendants of the slaves could enjoy equal rights and protection under the law.

I do think that the Constitution was a marvelous achievement, but I hardly think that “flaw” is too harsh a label for the fundamental conflict between the inherent equality of all men and chattel slavery. That conflict necessarily produced a particularly virulent form of racism as the only way to simultaneously maintain a belief in both equality and slavery is by believing that the enslaved people are somehow less than real men.

In fact, I think it would be terribly imprecise to say “that some of the Framers had trouble with the concept of abolishing slavery.” The problem isn’t what individual Framers thought about the issue of slavery; the problem is that, as a group, they produced a document, which was ratified as the supreme law of the land that granted sufficient power to the slaveholders to ensure the preservation of the institution.

I would like to think that the Constitution was a step forward but I am not sure what other compromises were possible. Many opponents of slavery supported the Constitution because they expected that the institution would collapse of its own weight in the South as it had in the North prior to the revolutionary war. However, the invention of the cotton gin made slavery a much more attractive source of labor and reinvigorated the institution. The Framers obviously could not have foreseen every contingency, but I wonder whether some other compromise might have made it easier to confront the issue later without resorting to war.

Marshall Art said...

I don't disagree here, except to say that we could easily turn around your question to "can you think of any relief the blacks would have received by counting each of them"? It wouldn't have been possible because it was such a sticking point in ratification. In fact, we could go so far as to say that it wouldn't have even been submitted for ratification because the non-SOS would not accept the games the SOS were playing with the issue as regards when a slave was property and when a slave was a person. The over-riding importance of having a constitution to which every state would agree loomed large. I doubt we could have gotten too far had they not come up with this compromise. Keep in mind that there was doubt as to whether this Constitution would interfere with states' rights and to press the issue would have resulted in the SOS taking a walk. Frankly, it's hard to imagine a better deal being had at the time. Keep in mind the general feelings of the time.

Vinny said...

If the slave states had walked out of the constitutional convention, American history would certainly have looked very different. The states would have remained much more loosely confederated and it is hard to imagine that the United States would have thrived as it did. However, from the slaves’ perspective, this may not have been a bad thing. It might have been much easier for slaves to escape if the Northern states had not been obligated to recognize Southerners’ property rights in their slaves, which could have put more pressure on the institution of slavery leading it to collapse sooner without the need for Civil War. Of course this is all highly speculative.

Marshall Art said...

That's a good point. I like to imagine a better outcome in any such speculation. Unfortunately, we must in fairness concede the real possibility that things would have turned out worse. I think we can both agree that dwelling on this point is moot at best and to continue to support better relations between all races and creeds is necessary and a duty for all.

Though I'm still not ready to concede the point regarding Rios and her perspective on the intent of the Apportionment Clause, she was mistaken as to it's existence within the Constitution. She may have been confusing things. She's easily flustered. I admit to cutting her slack over such things due to her underlying good intentions. But regarding the caller's accusation regarding this clause, I still can't yet agree that it was meant as the caller believes it was.

Marshall Art said...

Just to clarify, I don't necessarily look upon radio talk show hosts as ultimate sources of anything. Even the best of them are just relaying info from elsewhere. It is that info that I point out rather than the messenger of it. Sandy doesn't get every little detail right, I'm sure. (I hope you don't have such strict expectations from pundits.) But I have no problem relying on her and others like her for the overall and generalized version of info and leave it to others to quibble over the actual numbers. Talk show hosts are merely a source of info, not the only source.

Just wanted to clarify that.

Vinny said...

As a group, the Framers decided that the benefits that might be produced by the Constitution outweighed the evils of permitting the continuation of slavery. I would like to think they were right. I would like to think that the principles embodied in the Constitution were what forced the eventual demise of slavery and subsequently produced much good in America and the world as a whole. Unfortunately, there is really no way to measure such a thing and no way to be sure that some other choice wouldn’t have worked out better for the slaves.

In any case, I think it is fair to say that the benefits of the Constitution were not distributed evenly and that the slaves were among the people who did not get as much out of the deal. So if I were faced with a Black person who was complaining about the way that slaves were treated by the Framers of the Constitution, I would have to concede that they had a fair point. I would suggest that the Constitution represented a step forward for the rights of all people, but I would acknowledge that it left a lot of work undone with respect to Black people. I would certainly not argue that a clause that ensured the power of the slave states should really be viewed as something positive for the slaves, nor would I argue as Rios did that it was some activist Judge some sixty years later who was responsible for the clause rather than the framers themselves. I think her entire response was misguided.

Marshall Art said...

Yes, it wasn't her finest hour. But I think that it's possible she was referring to someone later using that section to support the idea that blacks were only equal to three-fifths of whites. But she does have to get a rasberry for it.