Thursday, May 23, 2013
More on compromise
Two friends made important points about m previous post. Dennis Thompson, co-author of The Spirit of Compromise, notes that the term "rotten compromise," used by the Israeli philosopher Avashi Margalit in hid book On Compromise and Rotten Compromise, identifies those compromises that are truly evil and basically to be ruled out categorically save for truly exceptional circumstances. In my own book Framed, when discussing compromises, I distinguish between the compromises on slavery, arguably truly "rotten," and that on the Senate, which was simply truly awful, but not "rotten."
I agree with the last point: simply do not know what the controlling opinion of the case will entail. It is likely to have some sort of equal protection component, but it very well rest somewhat on federalism and state dominance over marriage.
But, this area is something where the feds have special concern over. In the area of sex classification, one of the few remaining areas where sex matters involves naturalization rules. I also wonder about D.C., which has SSM. It is a bit amazing that the matter didn't get more attention.
Still, it wouldn't be simply a duty to recognize any type of marriage such as some nation that allows ten year old girls to marry or something. Let's not be TOO confused on how polygamy and SSM can be treated differently. Some classifications are easier to defend.
I believe the idea with DOMA is that once one of the couple gains citizenship, the other can be brought over to marry. That's more cumbersome than it should be, especially since the first person will have a somewhat limited choice of states. But it should work.
I understand what the principled position on the Senate representation question would be, but what would have been your no-compromise position on the 3/5 compromise? The northern position of 0/5, or no Constitution that countenanced slavery, or ... ?
(Not directly to the point, if the northern position of not counting slaves at all had prevailed, Adams would have won a second term. I think. All else equal. That makes for interesting counterfactual history.)
The "all else equal" is the key. If not for the 3/5 clause, it's unlikely that the Senate and EC would have structured as they are. How the votes might have gone depends on how you see those issues.
There was a project to reconstruct the actual vote for the 1800 election. I lost track of it, but it appears that Jefferson won the popular vote.
In "AMERICAN HISTORIANS VERSUS AMERICAN FOUNDERS: The Details of Greatness" (03.29.04) (New Republic), Sean Wilentz argues that Jefferson would have won in 1800 w/o the 3/5 Clause if "Federalists' partisan shenanigans in heavily Jeffersonian Pennsylvania" that changed the electoral count there did not take place.
The 3/5 provision was permanent in the sense that slavery was permanent. I'm not sure how one looks at that. Consider that women as a whole couldn't vote and coverture gave than an inferior position after marriage, but they were counted in full. Children were counted full.
Slaves were "persons" and minimal as they might be, had minimal rights as such. A cow, e.g., was not freed. Slaves could be. If they were not counted at all, wouldn't that in effect be worse, since they would be "property" totally? If you count them 3/5, you are basically admitting some form of personhood.
Since women & children, unlike slaves, were present in roughly the same proportions north & south, counting or not counting them would have had no effect on apportionment. Counting slaves or not, on the other hand, did affect proportionality significantly.
Counting slaves at 0 would have been problematic morally, but politically it was the only solution that didn't encourage the expansion of slavery and the undue influence of slaveholders.
In logic, all conclusions are implied by a contradiction. In late-18C America, it's impossible to reason morally (whatever that might mean) from the premise of slavery. Counting slaves as 0, or 1, or anything in between, is relevant only so long as there are slaves.
To act as if there is a right answer is to grant the premise, I suppose. If that's SL's point, I associate myself with it.
"The "all else equal" is the key. If not for the 3/5 clause, it's unlikely that the Senate and EC would have structured as they are. "
Actually, we already know how they'd have been structured, as the 3/5 clause was part of the Constitution which replaced the Articles of Confederation. So you need only look at how the Articles treated the matter, they would have remained in place if the Constitution hadn't been ratified.
I expect that, if it had failed ratification, the attempt for a complete replacement would have been ended, and incremental changes would have been attempted instead. (With the convention producing them carefully monitored by the states, to prevent the same thing from happening again.)
"If they were not counted at all, wouldn't that in effect be worse,"
"Counting slaves at 0 would have been problematic morally,"
This is, frankly, as obtuse as the controversy over "niggardly". Counting slaves at zero for how much representation their owners got was problematic morally? Slaves weren't going to be voting whether counted at 1, 0, or anything inbetween, it wasn't a commentary on the moral worth of the slave, it was an effort to reduce the political gain to their owners.
"Slaves weren't going to be voting whether counted at 1, 0, or anything inbetween, it wasn't a commentary on the moral worth of the slave, it was an effort to reduce the political gain to their owners."
fails to focus on the immorality of slavery and slave owners. Any political gain to the slave owners would not even trickle down to the slaves, for whom the glass was completely empty. The problem is not with "niggardly," but with the ilk of Brett who continues to spew his racist views.
"Actually, we already know how they'd have been structured, as the 3/5 clause was part of the Constitution which replaced the Articles of Confederation. So you need only look at how the Articles treated the matter, they would have remained in place if the Constitution hadn't been ratified."
That assumes no other deals would have been made. It's all speculation at that point.
"This is, frankly, as obtuse as the controversy over "niggardly". Counting slaves at zero for how much representation their owners got was problematic morally?"
No, failing to treat slaves as "persons" was problematic morally.
Wow. Amazing how people can argue that the 3/5 person clause was better than counting slaves for zero. For the mentally deficient, here is the break down, from worse to best:
(1) Counting slaves as full persons only for purposes of representation their owners in Congress (and not giving slaves any vote);
is worse than
(2) Counting slaves as 3/5 persons only for purposes of representation their owners in Congress (and not giving slaves any vote);
is worse than
(3) Not counting slaves as persons only for purposes of representation their owners in Congress (and not giving slaves any vote);
all of the foregoing are of course worse than:
(4) Abolishing slavery and giving the former slaves the full franchise (and counting former slaves as persons for purposes of representation in Congress). Like, duh.
I understand how counting slaves for purposes of representation is in some sense different than counting white females and such.
But, the basic idea of representation included counting those without the basic powers of political actors such as voting or even contractual freedom (coverture).
And, the 3/5 Clause, as Lincoln noted at Cooper Union, was but one example of citing slaves as PERSONS. They weren't just 'property' and counting them as 0 here, even beyond what was the case for white women, non-voting white men (including the poor) and children seems potentially problematic.
The clause is but one flag that PERSONS are involved here. If they were counted as nothing, unlike women etc., there would not even be any sort of virtual representation. This in effect cheapens their position.
The problem obviously is that it helps slaveowners but there is no perfect solution here. OTOH, some seem to think it all so obvious. Guess some of us, like them, are a bit slow on the uptake.
Well, no, the 3/5ths clause didn't help slave owners. Without any clause on the subject, slaves would have had the same status as all other people lacking the franchise, women, unpropertied males: Counting 1 for 1 for representation, but no vote.
The clause hurt slave owners, by reducing the power of their votes. It didn't hurt them as much as some other hypothetical clause might have, but we don't call knifing somebody in the kidney "helping" somebody, just because you might instead have put a bullet through their brain. The slave owners didn't want the 3/5ths clause, they wanted no clause at all.
This is fairly evident, but some people seem to think it a virtue to disengage their brains if the subject of race is at hand.
Unfortunately Brett, your theory suffers from 2 defects. One is theoretical: what helped or hurt the slaveowners depends on what you consider to be the default position. If the default was that slaves counted 1-1, then you're right. If the default was that slaves counted zero, then the 3/5 clause was a huge win.
The other problem is the actual debate. The subject first came up in the Convention on June 11. Here's how it began:
Mr. SHARMAN proposed that the proportion of suffrage in the 1st. branch should be according to the respective numbers of free inhabitants; and that in the second branch or Senate, each State should have one vote and no more. ...
Mr. RUTLIDGE [slaveholder] proposed that the proportion of suffrage in the 1st. branch should be according to the quotas of contribution [a reference to the 3/5 rule under the Articles]. The justice of this rule he said could not be contested. Mr. BUTLER [slaveholder] urged the same idea: adding that money was power; and that the States ought to have weight in the Govt. in proportion to their wealth.
Thus, the very first mention of the 3/5 rule was by slaveholders, who wanted it adopted for the obvious reason that it was better for them than Sherman's proposed rule of free inhabitants only.
The reference to "according to the quotas of contribution" seems to be a reference to a failed amendment to the Articles that set up the same ratio in determining tax responsibilities for each state.
The original proposal held that taxes:
"shall be supplied by the several colonies in proportion to the number of inhabitants of every age, sex, and quality, except Indians not paying taxes"
The South didn't like this idea since it would burden them given the slave population, who were not full "inhabitants," in part because they would not be as productive as the average free person. Also, treating them like a full inhabitant threatened the very basis of slaves as property.
A 3/5 ratio was the compromise. The amendment never passed, but it set a precedent. The concern about replacing a rule set by real estate with a simple rule of population also led to the rule as to direct taxes being determined by apportionment.
Also, Alexander Hamilton:
"Much has been said of the impropriety of representing men who have no will of their own. ...They are men, though degraded to the condition of slavery. They are persons known to the municipal laws of the states which they inhabit, as well as to the laws of nature. But representation and taxation go together. ...Would it be just to impose a singular burden, without conferring some adequate advantage?"
I think the reference to them being "men" with some aspect of personhood, in fact they have some will (or they would not be tried, as an animal was not tried ... at least outside of medieval Europe) is a bit telling.
Brett, it is a COMPROMISE. This means it hurt both sides to some extent. You can't go all the way in one direction.
If the slaves were not counted at all, they would benefit on direct taxes but not representation. If they were counted as full persons, it would suggest they were like white women and children -- non-political acts, yes, but still full persons at least in some sense. This they did not want to accept. It also would hurt them on direct taxes as seen by their early opposition to the tax amendment.
"to disengage their brains if the subject of race is at hand"
or, there might be various ways of looking at it ... it is not as if you think this is the only clause where people are confused (or "disengaged" in some fashion) as a matter of constitutional interpretation.
Are foreign (say Moroccan) polygamous marriages really not recognized as marriages in the US, for example in case of intestacy? In European jurisdictions with many Muslim immigrants, there are all sorts of special rules applying to them, on say family reunion and social insurance; but I understand the marriages per se are usually recognized.
I once asked a family law practitioner about the polygamy question and she did not really know the answer. It is an interesting one. It is briefly discussed here:
There are, simply put, a few cases that suggest polygamous marriages can be recognized for limited purposes.
In the area of sex classification, one of the few remaining areas where sex matters involves naturalization rules. I also wonder about D.C., which has SSM. It is a bit amazing that the matter didn't get more attention.fut coinsPost a Comment
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