Dred Scott and the Three-Fifths Clause Today

“They had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race either in social or political relations, and so far inferior that they had no rights which the white man was bound to respect, and that the negro might justly and lawfully be reduced to slavery for his benefit. He was bought and sold, and treated as an ordinary article of merchandise and traffic whenever a profit could be made by it. This opinion was at that time fixed and universal in the civilized portion of the white race. It was regarded as an axiom in morals as well as in politics which no one thought of disputing or supposed to be open to dispute, and men in every grade and position in society daily and habitually acted upon it in their private pursuits, as well as in matters of public concern, without doubting for a moment the correctness of this opinion.” Dred Scott v. Sandford, 60 U.S. 393, 407 (1856).

So as bad as the Citizens United decision is, no, it doesn’t approach Dred Scott. But we’re having a problem with this.

We’re also having a problem with the three-fifths clause. In a recent article in an Emory University magazine, the university’s president went searching for examples of commendable political compromises and came up with the three-fifths clause. That was the constitutional compromise by which slaves, who were not regarded as persons, could nonetheless be counted as 3/5 of a person for apportioning congressional seats in the House.

My thoughts turn to a post-election chat hosted at Boston public relations firm SolomonMcCown in which Governor Deval Patrick talked about how difficult it is to have a discussion about race in this country. His words seem all the more telling in light of recent events.

I’m certain that Congressman Ed Markey was doing nothing more than bungling an attempt to inspire passion in his supporters. Political figures these days are often trying to turn that phrase that will cause us to open the checkbook or stand for hours in yet another frigid New England snow storm collecting nomination signatures. If we can just intensify the us-versus-them mentality, convince our followers of the evil of the other side, then no rhetorical excess seems too much. Victory will surely be ours.

But words ain’t what they used to be. The chair of the California Democratic Party compares Paul Ryan’s convention speech to Nazi propaganda. Maine Republican Governor Paul LePage accuses the Internal Revenue Service of mimicking the Gestapo. Yawn.

I get it. In 1856 an African American was not considered a person and in 2013 “corporations are people, my friend” – at least for the purpose of writing checks to political causes or politicians.

Sorry, but not the same.

If we can confine the slavery rhetoric to actual discussions of slavery, the Hitler accusations to real considerations of Nazism, and the charge of socialism to what socialism actually represents, we will go some margin toward improving our political discourse.

About Maurice T. Cunningham

Maurice T. Cunningham is Associate Professor of Political Science at the University of Massachusetts at Boston. He teaches courses in American government including Massachusetts Politics, The American Presidency, Catholics in Political Life, The Political Thought of Abraham Lincoln, American Political Thought, and Public Policy. His book Maximization, Whatever the Cost: Race, Redistricting and the Department of Justice examines the role of the DOJ in requiring states to maximize minority voting districts in the Nineties. He has published articles dealing with the role of the Catholic Church in Massachusetts politics and on party politics in the state. His research interests focus upon the changing political culture of Massachusetts.
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7 Responses to Dred Scott and the Three-Fifths Clause Today

  1. Pingback: Headlines for Tuesday, February 26, 2013 » MASSterList

  2. Nancy says:

    I wish Prof. Mo would give more weight the contexts provided by the speakers’ own words when he evaluates their metaphors. That context tells you specifically what point the speaker is trying to make and also what he or she is not saying. There’s some ambiguity to Markey’s context but one part that’s clear is the legal argument: a remedy for Supreme Court decision requires more than passing a new law , it requires a Constitutional amendment. Markey’s saying the Citizens United decision is so damaging to Democracy that we need to pass a Constitutional amendment to remedy.

    • Maurice T. Cunningham says:


      I wouldn’t say that Dred Scott is a proper metaphor here, but I respect your point of view.

      I will have a little something to say about Citizens United on Thursday and I hope you’ll read it over and comment.



  3. Nancy Frank says:

    I agree and here’s why. The Dred Scott decision is about race and we can’t talk about race because we’ve politicized is beyond reason. I’n fact, it’s been the mainstay for the GOP since the civil rights act passed n the 60’s. Any other well known SJC decision that people widely agreed should be reversed with a Constitutional Amendment, and was, would do. Can you name a case like that?

  4. Maurice T. Cunningham says:

    I wonder. I’m not a constitutional historian but after Dred Scott in 1856 there was the Thirteenth Amendment as the CW was ending. Maybe the poll tax amendment. Good question Nancy and I just can’t give a definitive answer.

    Perhaps the Court itself could reverse Citizens United; that would likely require some repalcements on the bench. Until such time, “corporations are people, my friend.”

    • Maurice T. Cunningham says:

      It’s “you’re all gay.” Not that there’s anything wrong with that. And who told on us?

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