On undemocratic representation and the 3/5 Compromise

by John MacBeath Watkins

When the founding fathers wrote the constitution of the United States, one of their models was the Roman republic. Another source of information for them was Aristotle's Politics, which advocated the republic over pure democracy.

But here's the problem. The Roman senate was, for the most part, not democratically elected. It was
more like England's House of Lords than the House of Commons.

And the story of the evolution of American government has been one of the battle between those who want to restrict who chooses representatives and those who want to widen the franchise.

Qualifications for voting are largely left up to the states, or were, until after the Civil War. Women could not vote, in many states, felons still cannot vote.

But the thing is, women and felons were counted in the census, and contributed to the number of representatives states had in the House and how many electoral college votes states had for electing a president.

The founders supposed that we would elect wise men to gather and decide who the president should be. As far as I can tell, the system never actually worked that way.

Slaves could not vote, but were counted for census purposed as 3/5 of a human being, so they increased the leverage of slave-state legislators and electoral college representatives, who represented them by opposing the abolition of slavery.

Following the Civil War, federal troops during Reconstruction enforced the right of former slaves to vote. But when Reconstruction ended, Jim Crow laws ensured that blacks could be denied the vote.

This led to a long period when blacks were counted for census purposes as full human beings, but were not allowed to vote as such in many states. The result was a Southern congressional delegation strengthened by the number of black voters in their districts, but elected to work against their interests.

The civil rights movement sought to end this, and with the 1965 Voting Rights Act, it looked as if the Justice Department was back in the business of defending the right of African Americans to vote.

That sparked anger in the South, and when Richard Nixon set out to remake the Republican Party in his image, his genius for exploiting resentment came to the fore. The Republican Party now dominates the South, and the South dominates the Republican Party.

So, it's not too surprising that the Republican Party is now in the forefront of trying to limit the voting franchise, just as Southern Democrats used to. Their anti-government message isn't what the Republican Party has always represented. Most of the rhetoric about small government started with the 1964 Civil Rights Act and the presidential campaign of Barry Goldwater, who opposed it.

Republicans worked for years to get enough conservative Supreme Court justices to pull the teeth of the Voting Rights Act of 1965. Their most notable success to date was the 2013 Shelby County, Alabama, decision which removed the provision requiring districts and states with a history of racial discrimination in voting which required them to get prior approval from the Justice Department for changes in their voting laws.

Texas immediately went forward with a voter identification law which experts said would mainly make it harder for African  American and Hispanic voters, and to some extent students.

Texas was allowed to use this law in the 2014 election, but it is still going through a long process of legal challenges. The law has plenty of imitators, particularly in the South.

The rapid population growth in Texas is something its government brags about, but the problem is, its government is dominated by a party that is not the choice of the group of people driving this increase -- Hispanics. So, they attempt to gain that tempting goal, representing people who aren't allowed to vote.

Voter ID laws are sold on the thin premise that there is a plague of vote fraud in the form that this would address, but those pushing such legislation have not produced evidence of anything of the sort. The intent is clearly to get back the old advantage the South had when the 3/5 Compromise gave them disproportionate clout in proportion to the number of voters they had.

Garry Wills, writing in his 2005 book, "Negro President": Jefferson and the Slave Power, said without the 3/5 Compromise,
"slavery would have been excluded from Missouri ... Jackson's Indian removal policy would have failed ... the Wilmot Proviso would have banned slavery in territories won from Mexico ... the Kansas-Nebraska bill would have failed"
In addition to the slavery issue, men were expected to represent women when the nation was founded. The notion that women should be allowed to vote, as well as being counted in the census for purposes of deciding how many House representatives and electoral college votes a state would have, gained some ground by the late 19th Century, with several Western states allowing them the franchise, but the 19th Amendment, which gave all women in America the vote, did not become law until 1920.

The cultural context is that men were considered to represent their households. Under the doctrine on feme covert, women were considered for property purposes to be one with the man's household, and subordinate to him. The wife therefore had no property of her own, and if she divorced, all property of the household, even that which she brought to it, would stay with the husband.

Husbands representing households was about property and subornation. When the nation was founded, only holders of sufficient property could vote. The property qualification for voting did not entirely disappear until 1856 in the U.S. It does not seem like any sort of accident that women got their property rights before they got the vote. Some things are deeply embedded in the culture.

In general, the policy of assuming that some classes of people, such as slave owners or husbands, should represent other people has run aground on the simple fact that they represent their own interests, not those of their slaves or wives.

But that's the point of restricting the franchise. Those who wish to limit the voting franchise usually want to do so in order to use the legislative power granted by a population against its interests.