Sunday, May 4, 2008

Tom Hanks is only three-fifths correct

Tom Hanks has posted an endorsement of Barack Obama for president on myspace:

Not a big surprise. But Mr. Hanks in his commentary engages in a very common misunderstanding of the infamous "three-fifths" clause of the Constitution. It's a misconception one doesn't like to bring up, because nobody wants to defend the indefensible, but truth embraces accuracy, not aesthetics.

Shortly into the video, Hanks describes America as:

"A country that once said that people of (Obama's) skin color were only three-fifths of a human being."

Here's what the Constitution actually says in Article 1, Section 2:

"Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons,including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons."

The Fourteenth Amendment, of course, threw this bit of text into the dust bin, thank goodness, but you will notice it doesn't say that where the human race is concerned, blacks are only three-fifths of a being. It says that for every five people "bound to Service" only three will figure in calculations for taxes and seats in the House of Representatives. That's a significant difference.

Let's give Gouverneur Morris of Pennsylvania credit for being the delegate to the 1787 Convention who explicated the meaning of this clause most accurately in debate, and gave a stirring condemnation of slavery while he was at it. Madison's note for August 8th report that Morris:

"He never would concur in upholding domestic slavery. It was a nefarious institution. It was the curse of heaven on the States where it prevailed... Upon what principle is it that the slaves shall be computed in the representation? Are they men? Then make them Citizens and let them vote. Are they property? Why then is no other property included? The Houses in this city [Philada.] are worth more than all the wretched slaves which cover the rice swamps of South Carolina. The admission of slaves into the Representation when fairly explained comes to this: that the inhabitant of Georgia and S. C. who goes to the Coast of Africa, and in defiance of the most sacred laws of humanity tears away his fellow creatures from their dearest connections & damns them to the most cruel bondages, shall have more votes in a Govt. instituted for protection of the rights of mankind, than the Citizen of Pa. or N. Jersey who views with a laudable horror, so nefarious a practice."

Think of how much death, misery, and suffering this country would have avoided had everyone in 1787 been as wise as Mr. Morris. But notice in the midst of his diatribe the keywords "representation," "votes," and "property." That's what the three-fifths clause was all about.

As usual, Akhil Amar puts it cogently:

"Modern laypersons and law students confronting the words "three fifths" for the first time often suffer... confusion, recoiling at the idea of valuing slaves at less than 100 percent. This initial reaction misses the point. The clause did not aim to apportion how much a slave was a person as opposed to a chattel. Had this been the question, the anti-slavery answer in the 1780s would have been to value slaves fully: five-fifths. Yet in the context of House apportionment, a five-fifths formula would not have freed a single slave, or endowed any bondsman with more rights of personhood against his master or the world. Five-fifths would simply have given slave states even more voting power vis-a'-vis free states. The precise Article I question concerned Congress's proportions, not the slaves'. The principled antislavery answer to this question in 1787 was that for legislative purposes, slaves should be valued not at five-fifths, or even three-fifths, but rather zero-fifths." (America's Constitution: A Biography, 2005, p. 89, emphasis his.)

It's kind of jarring to learn that slavery, a curse we eradicated in the nineteenth century, is so closely linked in the Constitution to taxes, a curse we've not eliminated to this day. I'll bet Tom Hanks wishes he only had to pay taxes on three-fifths of his movies. Imagine how much money he'd have saved if he only had to write the IRS a check for his profits from "Joe Versus the Volcano," "Bonfire of the Vanities," and "Turner and Hooch" while keeping to himself the gross from "Sleepless in Seattle" and "Forrest Gump"!

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