FACT CHECK: DID THE STATES HAVE THE RIGHT TO DEFEND THEIR CONGRESSIONAL REPRESENTATION BEFORE THE WAR OF 1861? YES, THEY DID.

INVESTIGATOR:

John Needham

VERDICT REVIEW:

ACCURATE

FACT CHECK DETAILS:

FACT TAG EARNED: FACTUALLY ACCURATE

EXPLANATION TAG EARNED: ACCURATE

LOGIC TAG EARNED: NONE

CONTEXT TAG EARNED: NONE

EXAGGERATION TAG EARNED: NONE

SOURCE TAG EARNED: ACCURATE

IMPRECISE LANGUAGE TAG EARNED: NONE

OBJECTIVITY: NOT REVIEWED

FACT TAG EARNED: FACTUALLY ACCURATE

Yes. Congressional Congressmen made their legal argument through Article 1, Section 2, Clause 3 of the compact entitled “The Constitution of the United States”.  Slavery was tied to State representation in the US House of Representatives.  Remove slavery and States lose representation and therefore the power to affect legislation.

EXPLANATION TAG EARNED: ACCURATE

In December 1859, the entire South was on a knife-edge after a failed slave insurrection lead by the abolitionist and terrorist John Brown while the country was holding its breath waiting to see if South Carolina would leave the Union. On December 19, 1859, from the floor of the US House of Representatives, Otho Robards Singleton of Mississippi, in response to John Hickman of Pennsylvania comments that there has never been a single compact agreed upon by the North and South, touching the question of slavery, that has not been violated by the North.  Singleton’s Response:

“The gentleman from Pennsylvania, in the course of his remarks, alluded to the provisions in the Constitution touching the question of slavery and seemed to complain that some advantages accrued to the South from them. There are but three of them, and they are simple in their character. The first is that which entitles us to the three-fifths representation of our slave population from this floor (representation).  I ask you, do you expect us to take less than this? (representation)  Is it not a clause (Article 1, Section 2, Clause 3) contained in the Constitution made by your fathers and by ours?  And is it to be expected that we will consent to relinquish with representation?  That constitutional provision may be offensive to you; you may not approve of it, but it is there, and we will never consent that it shall be taken out.  We have asked nothing more than the letter of the bond. We are willing to take nothing less.  And whenever you undertake to take nothing less.  And whenever you undertake to violate that provision of the Constitution and prevent us from having that representation, you have at once put an end to the compact that binds us together.  It is known to all of us that the slavery question was one of the most difficult of settlement in the convention which framed the constitution; but, after a long and anxious debate come when a vote was taken, there was not found a single dissentient voice upon the adoption of this clause.  Again, I say, we had never asked more than we were entitled to under that provision, and sure, as men who know the value of their rights, you will never expect us to submit to anything less. There is, therefore, no cause of complaint in this quarter.”

And Furthermore.

“So far, therefore, as the provision of the Constitution are concerned, let me ask you to divest yourselves of your prejudices, and tell me when the South has ever demanded anything to which she was not entitled?  What provision to the Constitution has she undertaken to violate?  Has she (the South) ever asked that she (the South) should have more than three-fifth representatives for her slaves upon this floor?”

SOURCE: Semi-Weekly Mississippian – Page 1 – Jackson, MS – January 17, 1860

2nd SOURCE CONFIRMED: The Congressional Globe, House of Representatives, 36th Congress, 1st Session – December 19, 1859, Page 47

ADDITIONAL CONTEXT – A TAX COLLECTION PROBLEM

In May 1787, with no power to collect taxes in order to pay the domestic or international debt accrued by Congress, delegates from the States met in Philadelphia to revise the Articles of Confederation to fix the problem.  1 Instead of revising the Articles with amendments, the delegates decided to create a new government in a compact called “The Constitution of the United States”.  The structure of the new government would be federalist in nature called the general government, consisting of three branches: the executive, the President: the judicial, the Supreme Court, and the legislature, Congress.

A debate occurred over the definition of State representation in Congress.  What would it look like?  States with large populations (Virginia, Massachusetts, and Pennsylvania) wanted representation to be based on population.  States with small populations (New Jersey, Delaware, and Connecticut) wanted each State to have the same number of representatives, like under the Articles of Confederation.  For months, the argument went on, and then a compromise was reached.  Congress would consist of an upper house, the Senate, and a lower house, the House of Representatives.  To satisfy the advocates of State sovereignty, each State received equal representation in the Senate with two seats.  The House would represent the voice of the people of the States.  2 State Representation of the House would be based on that State’s population; For every 30,000 people of a State’s population, the State received one House delegate. An ‘enumeration’ of the population or Census would be conducted every 10 years to adjust the number of House members regularly.  When a direct tax was levied by the general government, the amount each State would pay in taxes would be based on its population and not land value as with the Articles of Confederation.  3 The office of the President would be chosen by a group of electors called the Electoral College.  Each State legislature would appoint Presidential Electors, to the College, equal to the total number of Senators and Representatives they had in Congress based on its population as well. 4

The elephant in the room was then addressed by the delegates:  Should slaves be counted for the purpose of calculating a state’s representation in the federal House of Representatives, Presidential electors and State apportioned taxes owed to Congress?    The debate was ultimately over legislative power.  Who would control it in the House?  The more representatives a State has, the more power it commands to either further or derail legislation in Congress and choose the general government’s chief executive.  Delegates from the smaller populated States did not think slaves should be counted at all, while the larger populated States thought they should. Understand, all the States had slaves, but some just had had more than others.  The convention compromised.  Slaves would be represented in the House at a ratio of 3 to 5 of their actual numbers in what would become known as the Three-Fifths Compromise.  Thus, every five individuals would count as three for the purposes of both legislative representations. However, this same ratio was to be used to determine the federal tax contribution required of each state. 5

In Federalist No.54, James Madison acknowledged the slave’s dual nature as property and as a person:

“We deny the fact that slaves are considered merely as property, and in no respect whatever as persons.  The true state of the case is, that they partake of both qualities; being considered by our laws, in some respects, as persons, and in other respects as property.   The Federal Constitution decides, therefore, with great propriety on the case of our slaves, when it views them in this mixed character of persons and of property.  This is, in fact, their true character.  It is the character bestowed on them by the laws under which they live; and it will not be denied that these are the proper criterion.”

And so Article 1, Section 2, Clause 3 in the compact was created.

1. US Department of State, Office of the Historian, Foreign Service Institute, U.S. Debt, and Foreign Loans, 1775–1795 and How Failed Tax Policy Led to the Constitutional Convention
2. The Formation of the Constitution
3. State Representation in the US House of Representatives – Article 1, Section 2, Clause 3
4. The Presidential Electors – Article 2, Section 1, Clause 2
5. The Three-Fifths Compromise – Article 1, Section 2, Clause 3
6. Federalist No. 54

SOURCE TAG EARNED: ACCURATE

This article was verified by two different primary sources.

THE FACT CHECKER’S CONCLUSION

The compact entitled “The Constitution of the United States” is a contract. The States are the parties in that contract. Like in any contract, the parties’ relationship with one another is defined in the contract. According to Article 1, Section 2, Clause 3, the States agreed on how they would be represented in the US House of Representatives. Free as well as slave persons were used to calculate a State’s representation in the US House of Representatives. If slaves ran off without return, that States Legislative power would be reduced over time. In conclusion, any State in the compact entitled “The Constitution of the United States” had the right to defend its representation under Article 1, Section 2, Clause 3 prior to the War of 1861.

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