Front Page Titles (by Subject) CHAPTER XX.: WHY ALIENS ARE COUNTED AS THREE FIFTHS. - The Unconstitutionality of Slavery: Part Second
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CHAPTER XX.: WHY ALIENS ARE COUNTED AS “THREE FIFTHS.” - Lysander Spooner, The Unconstitutionality of Slavery: Part Second 
The Unconstitutionality of Slavery: Part Second (Boston: Bela Marsh, 1860).
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WHY ALIENS ARE COUNTED AS “THREE FIFTHS.”
There are both justice and reason in a partial representation, and a partial taxation, of aliens. They are protected by our laws, and should pay for that protection. But as they are not allowed the full privileges of citizens, they should not pay an equal tax with the citizens. They contribute to the strength and resources of the government, and therefore they should be represented. But as they are not sufficiently acquainted with our system of government, and as their allegiance is not made sufficiently sure, they are not entitled to an equal voice with the citizens, especially if they are not equally taxed.
But it has been argued* that aliens were likely to be in about equal numbers in all the States, in proportion to the citizens; and that therefore no great inequality would have occurred, if no separate account had been taken of them. But it is not true that aliens were likely to be in equal numbers in the several States in proportion to the citizens. Those States whose lands were already occupied, like Connecticut, Rhode Island, and Massachusetts, (exclusive of Maine,) and who could not expect to retain even so much as their natural increase of population, could not expect to receive the same additions to it by the immigration of foreigners as New York, Pennsylvania, and other States, that still had immense bodies of unoccupied lands. And none of the old thirteen States could expect long to have the same proportion of aliens as the new States that were to be opened in the west. And even those new States, that were then about to be opened, would soon become old, and filled with citizens, compared with other States that were to be successively opened still further west.
This inequality in the proportion of aliens in the respective States, was then, and still is, likely to be for centuries an important political element; and it would have been weak, imprudent, short-sighted, and inconsistent with the prevailing notions of that time, of all previous time, and of the present time, for the constitution to have made no provision in regard to it. And yet, on the slave hypothesis, the constitution is to be accused of all this weakness, imprudence, short-sightedness, and inconsistency; and, what is equally inadmissible, is to be denied all the credit of the intentions, which, on the alien hypothesis, the clause expresses; intentions, the wisdom, justice, and liberality of which are probably more conspicuous, and more harmoniously blended, than in any other provision in regard to aliens, that any nation on earth ever established, before or since.
It is as unnatural and absurd, in the interpretation of an instrument, to withhold the credit of wise and good intentions, where the language indicates them, as it is to attribute bad or foolish ones, where the language does not indicate them. And hence the positive merits of this clause, on the alien hypothesis, are entitled to the highest consideration; and are moreover to be contrasted with its infamous demerits, on the slave hypothesis.
The preceding view of this clause is strongly confirmed by other parts of the constitution. For example: The constitution allows aliens, equally with the citizens, to vote directly in the choice of representatives to congress, and indirectly for senators and president, if such be the pleasure of the State governments.* Yet they are not themselves eligible to these three offices, although they are eligible to all other offices whatsoever under the constitution.† All that is required of them is simply the official oath to support the constitution; the same oath that is required of citizens.
Again. The constitution of the United States lays no restraint upon their holding, devising, and inheriting real estate, if such should be the pleasure of the State governments. And in many, if not all, the States, they are allowed to hold, devise, and inherit it.
Now the facts, that they are not restrained by the constitution from holding, devising, and inheriting real estate; that they have the permission of the constitution to vote, (if the State governments shall please to allow them to do so;) and that they are eligible to a part of the offices, but not to all, show that the constitution regards them not as aliens, in the technical sense of that term,‡but as partial citizens. They indicate that the constitution intended to be consistent with itself throughout, and to consider them, in reality, what this argument claims that it considers them in respect of representation and taxation, viz., as three fifths citizens.
The same reason that would induce the constitution to make aliens eligible to all offices, except the three named, (to wit, those of representative, senator, and president,) and to allow them the right of voting, would also induce it to allow them some right of being counted in making up the basis of representation. On the other hand, the same reasons which would forbid their eligibility, as representatives, senators, and presidents, would forbid their being reckoned equal to citizens, in making up the basis of representation; and would also forbid their votes for those officers being counted as equal to the votes of citizens. Yet a single vote could not be divided so as to enable each alien to give three fifths, or any other fraction, of a vote. Here then was a difficulty. To have allowed the separate States full representation for their aliens, as citizens, while it denied the aliens themselves the full rights of citizenship, (as, for instance, eligibility to the legislative and highest executive offices of the government,) would have been inconsistent and unreasonable. How, then, was this matter to be arranged? The answer is, just as this argument claims that it was arranged, viz., by allowing the aliens full liberty of voting, at the discretion of the State governments, yet at the same time so apportioning the representation among the States, that each State would acquire no more weight in the national government, than if her aliens had each given but three fifths of a vote, instead of a full vote.
In this manner all the inconsistency of principle, which, it has been shown, would have otherwise existed between the different provisions of the constitution, relative to aliens, as compared with citizens, was obviated. At the same time justice was done to the States, as States; also to the citizens, as citizens; while justice, liberality, and consistency were displayed towards the aliens themselves. The device was as ingenious, almost, as the policy was wise, liberal, and just.
Compare now the consistency and reason of this arrangement with the inconsistency and absurdity of the one resulting from the slave hypothesis. According to the latter, the States are allowed the full weight of their aliens, as citizens, in filling those departments of the government, (the legislative and highest executive,) which aliens themselves are not allowed to fill. 2. Aliens are allowed full votes with the citizens in filling offices, to which, (solely by reason of not being citizens,) they are not eligible. 3. And what is still more inconsistent, absurd, and atrocious even, half the States are allowed a three fifths representation for a class of persons, whom such States have made enemies to the nation, and who are allowed to fill no office, are allowed no vote, enjoy no protection, and have no rights in, or responsibility to, the government.
If legal rules require us to make an instrument consistent, rather than inconsistent, with itself, and to give it all a meaning that is reasonable and just, rather than one that is unjust and absurd, what meaning do they require us to give to the constitution, on the point under consideration?
The only imperfection in the constitution on this point seems to be, that it does not secure the elective franchise to aliens. But this omission implies no disfavor of aliens, and no inconsistency with the actual provisions of the constitution; nor is it any argument against the theory here maintained; for neither does the constitution secure this franchise to the citizens, individually, as it really ought to have done. It leaves the franchise of both citizens and aliens at the disposal of the State governments separately, as being the best arrangement that could then be agreed upon, trusting, doubtless, that the large number of aliens in each State would compel a liberal policy towards them.
From this whole view of the subject, it will be seen that the constitution does not, in reality, consider unnaturalized persons as aliens, in the technical sense of that term.* It considers them as partial citizens, that is, as three fifths citizens, and two fifths aliens. The constitution could find no single term by which to describe them, and was therefore obliged to use the phrase, “all other persons” than “the free,” that is, “all other persons” than those entitled to full representation, full rights of eligibility to office, and full rights of citizenship generally. The term “alien” would have been a repulsive, unfriendly, and wholly inappropriate one, by which to designate persons who were in fact members of the government, and allowed to participate in its administration on a footing so near to an equality with the citizens. As the word had acquired a technical meaning, indicative of exclusion from office, from suffrage, from the basis of representation, and from the right of holding real estate, its use in the constitution would have served to keep alive prejudices against them, and would have been made a pretext for great illiberality and injustice towards them. Hence the constitution nowhere uses the word.
How much more reasonable in itself, and how much more creditable to the constitution and the people, is this mode of accounting for the use of the words “all other persons,” than the one given by the advocates of slavery, viz., that the people had not yet become sufficiently shameless to avow their treason to all the principles of liberty for which they had been distinguished, and, therefore, instead of daring to use the word “slaves,” they attempted to hide their crime and infamy under such a fig-leaf covering as that of the words “all other persons.” But the law knows nothing of any such motives for using unnatural and inappropriate terms. It presumes that the term appropriate for describing the thing is used when that term is known—as in this case it was known, if the things intended to be described were slaves.
[* ] By Wendell Phillipe.
[* ] And in some of the States, as Illinois and Michigan, for example, they are allowed to vote.
The provision in the constitution of the United States, in regard to electors, is this: (art. 1, sec. 2.)
“The House of Representatives shall be composed of members chosen every second year, by the people of the several States,” (not by the citizens of the United States in each State, but by “the people of the several States,”) “and the electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislature.”
[† ] They may be judges, ambassadors, secretaries of the departments, commanders in the army and navy, collectors of revenue, postmasters, &c., equally with the citizens.
[‡ ] For the term alien technically implies exclusion from office, exclusion from the right of suffrage and inability to hold real estate.
[* ] They are called aliens in this argument, for the want of any other word that will describe them.