Voter suppression carries slavery's three-fifths clause into the present
Two decades ago, while a law student, I took a class titled The Federalist Papers. Our small group sat in a small seminar room off of the library, a collection of nerds – most, I gathered, aspiring to be judges or academics rather than following the tide of corporate practice. I was one of two women, and the only Black student in the room: an experience of oddity I had grown used to.
As I recall, we spent the most time poring over Federalist 51, the paper that outlines the fundamentals of what we now term Madisonian democracy. But the part I personally sat with, long after the class was over, was Federalist 54, mostly likely also authored by Madison. Like many African Americans, I had come of age hearing about how the three-fifths clause – which proposed that three out of every five slaves be counted to determine a state’s population – was a mark of how we Black people were not deemed fully human when the constitution was first ratified. Here, fully elaborated, was an earnest, though tortured, justification for the enshrinement of indecency. That classic essay remains key to understanding race in the United States.
And so my interest in Madison’s Federalist 54 has been sustained. Admittedly, for personal reasons, in part: I am the descendent of Black people who were enslaved in a county named after James Madison: Madison, Alabama. I am a professor of Black studies where Madison once was a student and made my way from teaching constitutional law about a decade ago. I also see the insidious remnants of Federalist 54 in the current landscape, specifically in the issue of voter suppression.
Some will object to my laying this at Madison’s feet. He is a former president who is treated with honor and gravitas. On the question of his slave-owning, we hear that phrase that always grates my ears: he was a man of his time. It is supposed to quiet all interrogation of evil. But we are all people of our time. And we live the layers of those glib justifications; they are baked into the national pie. They shape our doings. So it goes with Madison.
Some readers will further say: Madison recognized the evils of slavery! He did. He wrote in his papers, “Where slavery exists, the republican theory becomes still more fallacious.” And yet he explained that the enslaved, being of a mixed character – between property and person – ought to count as three-fifths for congressional apportionment.
The strategic argument of Federalist 54 was political. It was a middle ground between the interests of southern planters and their peers: citizens who were not slaveholders nor supported primarily by a slave economy. But the effect was much more than political compromise. The enslaved were truly and fully denied the promise of democracy.
The ugly logic of American democracy in Federalist 54 is one to which the nation has held fast
So what? Our history is a trail of tears shrouded in myth. Barely an icon can be named without some vile commitments or deeds. That is the price of empire. And yes, it bears repeating: Madison knew slavery was bad, a stain upon the principle of liberty. So much so that the one bondsman he freed was the one he took to the constitutional convention. He was a 24-year-old man named Billey, who had been given to Madison when he was eight. Something happened between the two at the convention, in the midst of all that talk of freedom. Madison did not bring him back to Virginia. He said Billey was no longer fit to be among his fellow slaves because his mind was “too thoroughly tainted”. Billey had grown, according to Madison, to “covet liberty”. And while he couldn’t blame him, he couldn’t run the risk of his other chattel being infected with such hopes.
Of course, Madison was wrong. Freedom dreams were as old as the peculiar institution. The civil war, and then the civil rights movement, are the great theaters of their expression.
Sometimes I wonder if it all came too late. Because the ugly logic of American democracy in Federalist 54 is one to which the nation has held fast. In so many ways, Black people remain partial members or partial citizens, along with the many “others” who were kept and cast out. And, unsurprisingly, the very subject of Madison’s letter, political representation, is one of the sharpest ways to see this.
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Every election season there is talk about voter suppression. Especially since 2013, when the United States supreme court struck down section four of the Voting Rights Act. Before the Voting Rights Act, there were all-white primaries, literacy tests, poll taxes, grandfather clauses and violent intimidation. Today there are voter ID laws, purging of voter rolls, as well as threats and intimidation. Most recently, the Georgia gubernatorial race offered a case study in the new partial citizenship rules.
Stacey Abrams, a Black woman, emerged as a viable candidate for governor. Hers was an electrifying and hopeful campaign. But voters soon found that the structure was rigged against her. The secretary of state, Brian Kemp, who also happened to be her opponent, attempted to close polling stations in majority Black precincts. There were reports of malfunctioning machines in heavily Black counties. Voters complained to the Georgia NAACP that when they selected Abrams, machines registered the votes for Brian Kemp. Fifty-three thousand voter registration applications were never processed, from predominantly Black districts. Ultimately, Adams conceded in a race that was sullied by suppression.
Voters cheer for Stacey Abrams. Photograph: Miguel Juarez Lugo/Zuma Wire/Rex/Shutterstock
The news cycle has moved past Georgia. That’s partially because the problem of voter suppression tends to be reduced to partisan interest. Democrats want their votes. Once the election is done, the matter is done until the next season. But that is a distorting lens. It bends toward treating Black people as mere constituents of the Democratic party, rather than participants in a democratic order. Although the immediate crisis fades after an election, the question remains: has the spirit of the three-fifths clause been chased away, or does it continue to shape American life? I think the latter is true.
I do not intend this to be a literary toppling of a statue, but a call for a true rendering so that we can insist upon better. The dawning political season is filled with vibrant personalities and noble narratives, as well as bitter alley fights. The people who believe in a concept of “the people” in the most thorough sense must hack through the noise. We must ask: how do we take seriously the interests of the parents whose children have been stolen at the border and by the bars of prison, in the same way that the children of the enslaved and the indigenous were in previous centuries? How do we take seriously the shallow breathing of the asthmatic child in a poor school, or of the Puerto Rican grandfather who sat in the dark and growing mold, both living on a thread despite wearing the status of citizen? And to be clear, I do not mean: how can we be charitable? That is dangerous. Remember, slaveholders, especially nice ones like Madison, thought themselves charitable caretakers. No, I mean to pose these questions in the democratic sense. Assessments of the deliberative project of democracy are not simply good, they are essential if we dare speak the word as a description of our nation.
A casual acceptance of the denial of rights is not simply unjust. It is the rot at the core of US constitutionalism. The only way for constitutionalism to make claims to virtue is for that rotten core to be rooted out and replaced with redemptive and courageous visions and participation of the excluded.
Imani Perry is the Hughes-Rogers professor of African American Studies at Princeton University. She is the author of five books, including Looking for Lorraine: The Radiant and Radical Life of Lorraine Hansberry