Strengthening Constitutional Self-Government


Huck Finn and the Constitution


January 2011

by David Foster

Mark Twain’s Adventures of Huckleberry Finn and the U.S. Constitution were both in the news recently, and partly for the same reason. The novel created a stir when a new edition was published in which every instance of a well-known racial epithet was replaced by the word “slave.” The argument is that although Twain’s novel powerfully opposes racism, the so-called “n-word” is so emotionally upsetting that many readers, especially children, can’t get past the word, or never even see the book because their teachers won’t assign it. If you took the word out, schools could use the novel and Twain’s anti-racist message would reach a much larger audience. Others argued, however, that such rewriting dumbs down the novel and hides its meaning. According to this view, to eliminate racism, we have to recognize its fundamental ugliness as well as its insidious character; and the use of the n-word in Huckleberry Finn helps to do both: the word is therefore essential for appreciating the novel’s anti-racist meaning.

As the Huck Finn question was being debated, the US Constitution was being read aloud at the opening of the 112th session of the United States Congress. The intention of this unusual procedure was to remind members of the significance of their solemn oath to “bear true faith and allegiance” to the Constitution of the United States and “to support and defend [it] against all enemies, foreign and domestic.” But the Republicans in Congress decided to read the Constitution only as it currently operates, leaving out the parts that have been superseded by Amendments. By far the most important of omitted parts is the 3/5ths compromise, where to apportion representatives and direct taxes, the Constitution originally added “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.” (Article 1, section 2, which was changed by the 14th Amendment.)

What does this truncated reading of the Constitution have to do with Huck Finn, you ask? Well, the 3/5ths provision is widely taken as proof that the Constitution condoned slavery. So widespread is this opinion that Representative James E. Clyburn (D-S.C.), the top-ranking African-American in the House, declined to participate in reading the Constitution, saying that “omitting the slavery clauses amounted to ’revisionist history.’” Similarly, in a nationally syndicated column on January 13, the writer Clarence Page argued that just as it is better to work through the meaning of Twain’s novel, uncomfortable word and all, so too we should “teach youngsters about history, not try to protect them from it.” We should not conceal that the Constitution “declared slaves would be counted as only three-fifths of a person.” “Other Persons,” Mr. Page says, is a euphemism for slaves and shows the Founders’ “willful blindness to inconvenient moral contradictions.” The suggestion is that the 3/5ths provision is the Constitutional equivalent of the n-word in Huckleberry Finn: both reveal a fundamental racism.

Now, I agree with Mr. Page and Representative Clyburn that it would have been better to read the whole Constitution. But I cannot agree with their premise that the Constitution is a racist document, indelibly stained by an endorsement of slavery and by the idea that an African American is worth only 3/5ths of a person. This view is extremely common; in fact, the Republicans’ reluctance to read the “slave clauses” suggests that they too might accept it. It is a very understandable view, given contemporary assumptions about the past, but it is a profound misreading. Paradoxical as it may seem, one can hold both that the 3/5ths compromise is an accommodation of slavery and at the same time that the Constitution is not a racist document.

To appreciate how this is so, we must keep in mind the political context of the time. When the 3/5ths provision was written, half the country—arguably, the more powerful half—supported slavery and was determined to preserve it. The authors of the Constitution had to satisfy both those who favored slavery and those who opposed it. If they had written a Constitution that was accepted by only one of these groups, the result would not have been the United States of America, but two or more nations, at least one of which would have been wholly committed to slavery. In this context, an anti-slavery position would show itself very differently than it does today.

The 3/5ths compromise was a way of determining two things: how many representatives each state would have in the Federal Congress and how many people would count when calculating direct Federal taxes. It was intended to represent the political weight of each State by taking into account both the number of human beings living in it and its wealth. The 3/5ths compromise meant that for every five “other Persons” in a State, three would count when calculating both the number of representatives and the number of people to be taxed. James Madison, often called the father of the Constitution, begins his defense of this arrangement by stating the most important objection he had heard against it. Why, he asks, should slaves be counted at all in determining representation? Representation is based on a census of persons, but slaves are property, not persons. Therefore, they ought to count when we calculate taxes, but they should not count at all for representation.

This view, Madison makes clear, is one a Northerner would adopt. It serves Northern interests, for it would minimize the number of representatives from the Southern states, while at the same time maximizing taxes due from those states. But for that very reason, it is a view that no Southerner could accept. Southern interests would in fact have been best served by counting slaves fully as persons! This would maximize Southern representation in Congress, especially since the 3/5ths provision only determined the number of representatives from each state, not who those representatives would be. Acknowledging the diversity of local laws, the Federal Constitution left each State to determine how its representatives would be chosen. Thus, a State could count slaves when determining the number of representatives, but send to Congress only white slave-owners. In this context, to count only 3/5ths the number of slaves rather than the total number actually diminishes the power of the slave faction in the national government. And this would strengthen that part of the country that was opposed to slavery—to the advantage of the slaves themselves.

As Frederick Douglass put it, the 3/5 clause “is a downright disability laid upon the slaveholding States; one which deprives those States of two-fifths of their natural basis of representation. A black man in a free State is worth just two-fifths more than a black man in a slave State, as a basis of political power under the Constitution. Therefore, instead of encouraging slavery, the Constitution encourages freedom by giving an increase of “two-fifths” of political power to free over slave States. So much for the three-fifths clause; taking it at its worst, it still leans to freedom, not slavery; for, be it remembered that the Constitution nowhere forbids a coloured man to vote.”

Given the political realities of the times, the less the slaves counted in representation, the more powerful the North would be in Congress, but at the same time, (especially if slaves continued to count for calculating taxes) the less the slaves counted, the less likely would be the South’s assent to the Constitution. The question then becomes: supposing compromise is the only way to get a Union of North and South, is Union in the interest of the slaves? Or would the slaves have been better off if the colonies had split into two or more separate nations?

There can be no doubt what the answer to that question is: freedom for the slaves depended on establishing the Union. Had two states emerged in America, one free and one not, slavery would have lasted much longer than it did. The North fought the Confederacy in part to free the slaves, but it prevailed in part because it was sustained through the fight by the powerful passions attached to preserving the Union. Those passions would have been entirely absent from a struggle against slavery in the two nation scenario. It is extremely unlikely that the North would have gone to war to free slaves in another country. And even if they had, their resolve in the inevitable dark days of the conflict would not have been bolstered by arguments for Union. In other words, if the 3/5ths compromise was essential for forging one nation out of North and South, and it was, it was essential for the eventual freeing of the slaves.

As for the locution “other Persons,” which seems to some like a dishonest evasion, that also served freedom. Using these words avoids enshrining in the fundamental law of the land the word “slave” or “Negro” or any other identifier of race or condition. And this is profoundly significant, for it means that Black people could count fully for representation without needing to go through the arduous process of a Constitutional Amendment. As far as the Constitution is concerned all that it takes to move a Black person from slave to free is a change in State law. If any State considered Black people to be free, as the Northern States did, those people are full citizens under the Constitution. Thus, the language of the Constitution, while it allows the South to support the document, also makes it as easy as possible to accommodate a change in the direction of freedom; it is no black mark on the Constitution that the States did not use that opportunity.

Far from being morally obtuse, those who drafted the 3/5ths compromise displayed a high form of statesmanship and one deeply informed by a passion for freedom. Let’s hope that next time, the whole Constitution is read, and that by then both Republicans and Democrats will have learned to appreciate its genius.

David Foster is a fellow of the Ashbrook Center and Chairman of the Department of History and Political Science at Ashland University.