Suddenly the most embarrassing compromise in the original Constitution has taken on a modern relevance. The passage appears in Article I, Section 3, and reads:
"Representatives . . . shall be apportioned among the several States . . . according to their respective numbers, which shall be determined by adding to the whole number of free persons . . . three-fifths of all other persons."
The term "all other persons," needless to say, was a euphemism for African slaves. Although they possessed no rights at all, the slaves were included in the number in order to enlarge the representation of the Southern states, where slavery was legal and widespread at the time the Constitution was adopted.
After the Civil War was fought to abolish slavery, the egregious defect in the Constitution was rectified by the 14th Amendment, which stated: "Representatives shall be apportioned among the states according to their respective numbers, counting the whole number of persons in each state . . ."
Now, a little over a century after that amendment was adopted, President Bush seems to be on the verge of putting the three-fifths clause back into the Constitution by trick and guile. Commerce Secretary Robert Mosbacher admitted that the Census had under-counted minorities in the United States by roughly 5 percent, but he then went on to declare that this known error would not be rectified for purposes of determining representation and allocation of an estimated $59 billion in federal assistance to states and cities.
In any other time, we might confidently predict that Mosbacher's decision would be instantly overturned in the federal courts as a prima facie violation of the words in the 14th Amendment. Unfortunately, in the Alice-in-Wonderland judiciary which is the legacy of Ronald Reagan, words don't mean what they say but what the politicians want them to say.
President Bush can, of course, reverse the Mosbacher ukase. Or, he can go down in history as the president who restored the three-fifths clause to the Constitution.