Google+
Close

Bench Memos

NRO’s home for judicial news and analysis.

A Tempest at Emory, But in the Wrong Teapot?



Text  



At Atlanta’s prestigious Emory University, President James Wagner is in hot water over something he surely now wishes he had never written (or perhaps he is even now flogging his ghostwriter).  In the winter issue of the alumni magazine, Wagner devoted his regular column to the subject of compromise, extolling the virtue of meeting in the middle, setting differences aside, seeking the greater good rather than intransigently pursuing one’s selfish interests, and all that.  What could be wrong with such anodyne sentiments?  Relying on an unnamed “distinguished public servant” and graduate of Emory’s law school, who had been part of an autumn homecoming weekend forum, Wagner observed that “the language of the Constitution is itself the product of carefully negotiated compromise.”

Then he proceeded to step in it:

One instance of constitutional compromise was the agreement to count three-fifths of the slave population for purposes of state representation in Congress. Southern delegates wanted to count the whole slave population, which would have given the South greater influence over national policy. Northern delegates argued that slaves should not be counted at all, because they had no vote. As the price for achieving the ultimate aim of the Constitution—“to form a more perfect union”—the two sides compromised on this immediate issue of how to count slaves in the new nation. Pragmatic half-victories kept in view the higher aspiration of drawing the country more closely together.

Some might suggest that the constitutional compromise reached for the lowest common denominator—for the barest minimum value on which both sides could agree. I rather think something different happened. Both sides found a way to temper ideology and continue working toward the highest aspiration they both shared—the aspiration to form a more perfect union. They set their sights higher, not lower, in order to identify their common goal and keep moving toward it.

Thus were furies loosed upon Atlanta the likes of which have not been seen since the storied visit of William Tecumseh Sherman.  Apologies were demanded, delivered, and deemed inadequate.  A censure vote was taken by the faculty.  The press coverage spread from the higher ed press to the New York Times, which did its obligatory “re-opening racial wounds” story.

Surely kicking himself for not using the Connecticut (or Great) Compromise as his example, Wagner can take cold comfort from the fact that his enemies probably don’t care all that much about this bout of foot-in-mouth disease.  What they really don’t like are his budgetary and programmatic cuts, and his discussion of the Three-Fifths Compromise is just a handy club to beat him with.  But he volunteered as flak-catcher, and now he’s getting mau-maued.  It’s pretty much following the standard script, though so far Wagner looks like he’ll survive this.

Let’s review where this went south (sorry).  Unlike some of his critics, Wagner at least did not make the mistake (which no competent historian would make) of saying that the Three-Fifths Compromise counts slaves, or blacks more generally, as “three-fifths of a human being.”  It was simply, as Wagner described it, the use of a formula to split the difference on counting population when one side (the more or less free or becoming-free North) wanted not to count slaves at all in tallying population for allocating House seats, and the other (the South) wanted to count all the slaves–who would not of course be actually represented themselves, being other men’s property.  (A second use of the fraction, for tallying what each state’s revenue quota was in direct taxation schemes, advantaged the North but was far less important, then and later on.)

The three-fifths formula, as Paul Rahe of Hillsdale College noted this morning on Bill Bennett’s “Morning in America,” had first been used during the Confederation period as a means of calculating the revenue obligations of each state to the common treasury, based on the presupposition (warranted or not) that a slave, with no enjoyment of the fruits of his own labor, worked about 60% as hard as a free man.

Was the Three-Fifths Compromise at Philadelphia really necessary for North and South to move forward together on adopting the Constitution?  Historians disagree, and it’s really impossible to say whether northern stubbornness on the point would have wrecked the convention.  Undoubtedly the compromise permitted the delegates to move on to other things and achieve something great, which was Wagner’s point.

But where Wagner went badly wrong was in describing the compromise as anything other than crassly utilitarian.  The worst sentence in his little encomium is this: “Both sides found a way to temper ideology and continue working toward the highest aspiration they both shared—the aspiration to form a more perfect union.”

Ouch.  The Three-Fifths Compromise shows that if the defenders of an evil practice want to be intransigent, explicitly or implicitly threatening to wreck the country if their base interests are not accommodated, they can get away with it (even if they’re bluffing, if they bluff really well), provided their counterparts are statesmen who desire an achievement they hope will outlast the crass bargain.

The southerners didn’t “temper their ideology.”  They made an unreasonable, unjust demand and it was partially met.  The northerners swallowed hard, hoping the principles (not “ideology”) of the Declaration–to which both North and South were pledged–would win out in the end, and without violence.  (They got half that hope fulfilled.)

In the North, the Three-Fifths Compromise had to be presented as palatably as possible.  In a masterpiece of an essay in The Federalist (No. 54), James Madison, writing to New Yorkers as though he were one of them, invited them to consider the imaginary defense of the clause by a hypothetical southerner–which turned out to be no defense of it in principle whatsoever, but in truth quite the opposite.  As I said in the entry on that essay in my Perennial Publius series here six years ago:

Whatever the effectiveness or ineffectiveness of this essay as a defense of the three-fifths formula to northern opinion at the time, the lasting interest of Madison’s performance here is in his evident revulsion at slavery in light of the principles of our Revolution. And so James Madison the southerner pretends to be a northerner, in order to pretend to be a southerner, in order to offer an account of the South’s interest in slavery, which inescapably condemns the institution from the mouth of the southern advocate himself.

I don’t have any real sympathy for Wagner’s critics, who strike me as uncharitably determined to be “offended” at best, and mere opportunists at worst.  But when you make a Thomas Kinkade painting out of the messy materials of history, these sorts of things happen.



Text  


Sign up for free NRO e-mails today:

Subscribe to National Review