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The Presidency, the Electoral College, and the Three-Fifths Clause

31 Pages Posted: 6 Mar 2009  

Earl M. Maltz

Rutgers Law School

Date Written: February 24, 2009

Abstract

The three-fifths clause of Article I, section 2, paragraph 3 is one of the most controversial provisions of the Constitution. Commentators who view the Constitution as a proslavery document contend that the "extra" representation given to slave states by the three-fifths clause played an important role in maintaining what they view as Southern dominance of the legislative process in the pre-Civil War era. In recent years, a number of scholars, including Akhil Amar, Paul Finkelman, and David Walker Howe have extended this critique to include the claim that the structure of the presidential selection process should also be considered proslavery. Noting that the three fifths clause is a significant factor in determining the makeup of the electoral college, these scholars argue a) that the rejection of a plan for direct election of the President was a concession to the Southern states and b) that in practice, the structure of the electoral college allowed Southerners to unfairly influence presidential choices. This article disputes both of those claims.

Suggested Citation

Maltz, Earl M., The Presidency, the Electoral College, and the Three-Fifths Clause (February 24, 2009). Available at SSRN: https://ssrn.com/abstract=1348676 or http://dx.doi.org/10.2139/ssrn.1348676

Earl Michael Maltz (Contact Author)

Rutgers Law School ( email )

NJ
United States

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