Uncle Orson Reviews Everything
February 24, 2011
Every Day Is Special
First appeared in print in The Rhinoceros Times
, Greensboro, NC.
Doughnuts, Defenders, and Slavery's Constitution
I got this column in even later than usual this week. But I couldn't help it. Everyone else in the
office (i.e., my business manager and my personal assistant [i.e., my wife and her sister]) were
heading out on a field trip to Donut World at 2509 Battleground, directly across from the
Subway and BP station.
It's the second doughnut store by the same folks who run the Donut World on West Market, but
after living in Greensboro for 28 years (as of March 2nd), I have acquired the native attitude that
driving all the way across town is just so ha-a-a-ard. (I grew up out west, where you think
nothing of driving fifteen miles for lunch and fifty miles for dinner.) So I knew nothing about
the original store.
Here's the skinny -- no, that's the wrong word. Here's the dope (and that's much closer to the
Cake doughnuts so delicious you almost don't care whether there's icing on top or not. The
cinnamon-crumb topping is great, though, in case you wondered.
Cinnamon rolls with the perfect balance between sugar, cinnamon, and light but not air-filled
Old-fashioned doughnuts so good they make you want to cry.
French doughnuts (of a shape and kind I never saw in France, but maybe they're new there or I
just went to the wrong shops) with a delicate pastry more like cream puff than doughnut, light
and delicious with just a bit of chew to them.
So here I am, fifteen pounds into a save-my-life diet, and a doughnut store this good opens up
five minutes from my house. The universe wants me dead. But ... what a way to go.
The bad thing about the way the TV networks debut most new shows in the fall is that I just
don't have enough hours to watch them all. So the promising shows pile up on the TiVo,
That's why I only just discovered The Defenders this past week. It hadn't become a high priority
for several reasons. 1. It's set in Las Vegas, the single least attractive "tourist destination" in the
world. 2. It's another lawyer show, and David E. Kelley has just about ruined that whole genre
for me. 3. It's set in Las Vegas, a city based on activities that I find incomprehensible or socially
reprehensible. 4. It's set in Las Vegas, a city utterly without scenery.
On the plus side, it has Jim Belushi. I became a Jim Belushi fan with About Last Night, in
which he and Elizabeth Perkins, playing the best friends of Rob Lowe's and Demi Moore's
characters, stole the whole movie out from under them. I never found John Belushi funny or
interesting, but Jim, now, is a terrific deadpan comic actor.
It also has Jerry O'Connell. Not that I've loved anything in particular that O'Connell has done.
But he began his career as a child actor playing "the fat kid" in that Rob Reiner movie based on
Stephen King's "The Body" (I'd look up the title but the internet is down at my house right now,
and since my memory is always on the fritz I'm pretty helpless without IMDB). Yet somehow
he got his weight under control and now his body is absolutely cut. No doubt he pays a high
price for that, but the thing is, he did it, and he stuck with it. So as a guy who's been fat and
who's been thin, I admire him for that.
The first list is why I hadn't watched it before; the second list is why I didn't erase it.
I'm glad I kept it because this is the smart, funny, sassy, fast-paced morally-alert legal show
that David E. Kelley keeps thinking he's writing but is too ignorant and unanalytically smug to
actually bring off.
These guys play law partners. Belushi is a husband and father who is going through a separation
that seems to be heading for a divorce he doesn't want. O'Connell plays a hotshot younger
bachelor with a propensity for having affairs with women from the district attorneys' office -- in
other words, the enemy.
But the relationship between the lawyers is merely amusing. The heart of every episode is a
morally complicated case. Often they defend people who are guilty of something, even if not the
worst crime they're charged with, but that doesn't mean these guys don't care about who's good
and who's bad.
There's something heartening about having Jim Belushi, talking to a client who was just
acquitted of murder but is about to serve a sentence for arson, say, "You did it, you got two
years, take it like a man."
And when O'Connell's mistress, an assistant D.A., keeps pushing to convict in a trial when it has
become clear that the defendant is innocent, just because she can't stand not to win, O'Connell's
character breaks up with her. There's a line. And it's a line that ordinary people can recognize.
It's called "right and wrong," which still exists even in an adversarial system with a lot of rules
you can wiggle through.
And then there's the receptionist, who has the look of a bimbo but is actually a smart partner to
both lawyers. And the clients -- just the people you'd expect in Las Vegas, which would
normally bore me silly (Elvis impersonators? Puh-leeeze. I didn't even like the real Elvis!) --
but The Defenders makes them into real people that you can understand and care about.
The writing in The Defenders is so good that you never notice it -- you think the characters are
just talking they way they would talk. So you know what? I'm going to stop trying with David
E. Kelley. Once upon a time, shows like The Practice and the first season of Boston Legal made
me a fan of his. But he's used up my patience and there's a better legal show on the air than
Kelley has ever written. Put me down as a Defenders fan.
I've got a couple of very short history books for you. How short? Around two hundred pages --
and they're small pages. I read one of them in a night; the other I deliberately spread out across
a couple of days so I could think about the important issues he raised.
First, the slightly longer but somewhat slighter book, Edward G. Lengel's Inventing George
Washington: America's Founder, in Myth & Memory. It's not any kind of biography -- for
that, I'm hearing great things about Ron Chernow's biography of Washington. Instead,
Inventing GW is an account of how Washington's image was managed and manipulated for
various purposes both during and after his lifetime.
There were people who wanted to tear him down right from the start; but then there were people
who wanted to build him up to help bolster people's patriotism.
One of the best things about this book is that it pinpoints exactly when some of the most colorful
lies about Washington were first put into circulation. I bet you'll be surprised how many are still
around, and still being believed.
But then Lengel goes on to show that the debunkers had such a need to discredit Washington that
they showed about the same disregard for factual truth as the worshipers. As a study of political
image-making and remaking and unmaking, the book is very informative.
The shorter book, however, is about matters much more substantive: Slavery's Constitution:
From Revolution to Ratification by David Waldstreicher. In recent years, people with an axe to
grind have charged that the American Constitution is evil because slavery was built into it.
Most notorious is the "three-fifths" clause, which counted slaves as three-fifths of a person for
purposes of apportionment. But then there's the clause that allowed states to continue the slave
trade until 1808 -- even though the Continental Congress had already abolished it.
Remember when the new Republican majority read the Constitution in Congress at the beginning
of this session? Remember how they were ridiculed for not reading the parts about slavery?
Of course they didn't read them -- they are no longer in the Constitution, having been removed
when slavery was abolished. It's worth pointing out that slavery's abolition came through the
prescribed method: amendment. It's also worth remembering that it took a civil war that killed
more Americans than any other war we've fought in, so that the anti-slavery amendments were
The fact is that if your goal was to make the original thirteen colonies into a single nation, it was
not going to happen without slavery in it. In the 1780s, the planters of Delaware, Maryland,
North Carolina, South Carolina, and Georgia simply would not have tolerated any hint of
abolition. And while Virginia had lots of statesmen who openly opposed slavery, they never
quite got around to abolishing it for themselves.
The slavery issue was complicated in ways that we can hardly understand today. To us, it's so
obvious slavery is wrong that we want to think of all the slaveowners as vile human beings. But
we also have the perplexing image of many people we count as great statesmen who owned
Here are the complications (though I don't count them as excuses): The movement toward
abolition of slavery was relatively new in Europe. European empires were founded on slavery
(Spain, Brazil, all Caribbean colonizers) or on the slave trade (Britain). So it's not as if America
was the sole advocate of slavery. Britain and France were self-righteous about having abolished
slavery at home, but their colonies continued to own and traffic in slaves for quite a while after
the American Constitution.
The reason America was singled out for abuse was because of the hypocrisy in claiming to be a
nation founded on principles of liberty and democracy, while a high percentage of the population
was treated as property and kept in chains, with few if any rights.
And the Founding Fathers were keenly aware of the contradiction. Not only that, Waldstreicher
is absolutely right to point out that no other issue played anywhere near as important a role in the
Constitutional Convention as slavery -- though it was only occasionally mentioned out loud.
In the slave states, what made you a person of wealth and substance was not land, because the
land had value only because it was worked by slaves. It was your slaves that gave you social
position. And if you freed your slaves, you could not compete, dollar for dollar, in farming your
land with workers you had to pay. So the land would become effectively worthless.
If everybody gave up their slaves at the same time, then there would be no competitive
disadvantage; abolition by government was essential. Yet that was precisely the thing that slave-state representatives came to the Constitutional Convention determined to prevent.
So here you had Massachesetts and Pennsylvania, states that had already taken steps to abolish
slavery, trying to create a unified nation that included a practice they considered loathsome,
because they could not create such a nation without allowing slavery to continue.
To which we might then ask: Who needed the unified nation, then? Why become the United
States? Or why not make a no-slavery union out of just the northern states?
Several reasons come to mind. First, Virginia was already claiming most of the western
territories; if they were not inside the United States, then such disputes would lead to
international incidents and, probably, war.
Second, the industrial revolution was just getting under way in England and had not really
touched America yet. So the northern states were not yet industrial powerhouses. Most of
American trade was in commodities produced by slave labor: Cotton, tobacco, indigo.
New England's ships depended on carrying those cargoes in order to make money. If New
England and the Southern states were not in the same nation, what was the point of having a
nation at all? Why not just remain individual states?
But that's a good question -- why not remain individual states? Remember that the Constitution
was vehemently opposed by anti-federalists who argued for exactly that proposition -- and much
of their argument stemmed from their loathing for slavery and the hypocrisy of allowing it to
continue in a supposedly free republic.
It's hindsight to point out that the War of 1812 is a complete demonstration of why America
desperately needed to become a single nation in order to survive at all. Given the way the Brits
treated the United States on the high seas until after the War of 1812, imagine how they would
have treated thirteen individual colonies. At best we would have been returned to quasi-colonial
status, always getting the short end of the stick in that mercantilist system. At worst, we would
have become a surrogate battleground for warring European powers.
So as Waldstreicher shows how deliberately hypocritical the federalists were, telling northerners
how anti-slavery the Constitution was and southerners how pro-slavery it was, the fact is that
they were trying to create a system that would allow these former colonies to keep out from
under European domination. Slavery stank in the nostrils of most of them, but they created a
Constitution that postponed any change in the existing system in the interest of unifying the
states into one country first.
I think Waldstreicher goes just a bit too far with his title and with his conclusion. He gives the
impression that the purpose of the Constitution was to promote or preserve slavery, which is
not true. But it certainly is true that the preservation and even promotion of slavery was the
undoubted effect of the Constitution.
Because everyone at that convention had their eyes on the future. They assumed, as most people
do, that "current trends will continue." So everyone assumed that Virginia would remain the
most populous states, and the slave states would continue to grow faster than the free states.
Indeed, the continuation of the slave trade for twenty years was specifically designed to let the
slave states jack up their slave population as much as possible to try to preserve their population
As for the notorious "three-fifths" clause, it's worth remembering that the Constitution explicitly
calls slaves "persons," which was not at all what the slaveowners would have preferred (to them,
slaves were not persons at all, but property).
When it came to taxation, it was in the interests of northern states to count slaves as full persons
in assessing how much the southern states should pay in taxes to the federal government; the
southern states did not want the slaves counted at all.
The northern argument was that slaves created taxable income at about the same rate as free
workers in the north, and should be taxed accordingly.
The southern argument was that slaves could not be fired; they had to take care of slave children
and old, ill, unproductive slaves, which northern manufacturers did not have to do for their
That was taxation. Representation made them switch sides. In determining how many
congressmen each state was entitled to send to the House of Representatives, and how many
electoral votes each state should get in choosing the President, the South wanted their slaves to
be counted as full persons, and the North didn't want them counted at all!
The southerners were smart enough to realize that in order to hold onto enough votes in
Congress to keep abolition from every prevailing nationally, they had to beef up their
representation -- even if it meant being taxed for their slaves.
The three-fifths rule was the compromise, not so much between North and South, as between the
contradictory interests on each side. The South would pay three-fifths of the slave numeration in
higher taxes, but that was worth it to get the stronger representation; the North would accept the
South paying lower taxes (by two-fifths of the census of slaves) in exchange for the South not
getting full representation in Congress and in Presidential elections.
So nobody was saying that African slaves were "three-fifths of a person." The North won on the
issue of calling them persons, period. And the compromise was a matter of how much advantage
and disadvantage slaves were allowed to be in apportioning taxes and representation.
Slaves were, in the South, not persons at all, but property. In the North, they were regarded as
full persons, but could not be fully counted for purposes of apportionment or the South would
rule over the North forever.
Another key issue was "domestic insurrections." The South lived in terror of slave revolts. It
was a vivid possibility -- because the British had emancipated slaves during the Revolution in
order to cripple the Southern (and therefore the American) economy. Those slaves were
recruited and put under arms; with British encouragement, many revolted and slew their masters.
That is why the South did accept some compromises with the North, in exchange for the promise
that troops from Northern states would be sent by the federal government to put down
"insurrections" (i.e., slave revolts) in the South.
But the pertinent clauses do constitute a contract stipulating that the anti-slavery states would be
obligated to send their militias to help the slave states keep their slaves in bondage! The
federalists downplayed this in the North as they tried to win ratification, but this aspect of the
Constitution made the North complicit in slavery even as they were abolishing slavery within
their own borders.
One reason the northern states went along with the Constitution's pro-slavery provisions was the
promise that the first action of the new Congress would be to create a Bill of Rights --
amendments that would go a long way toward securing the liberty of the citizens (not the slaves)
in all states. The benefits of the Bill of Rights were seen by many as outweighing the hypocrisy
of a free country that tolerated slavery.
The federalists won; the Constitution was ratified. But the anti-federalists did not go away.
They set out to make sure the federal government remained as weak and ineffective as possible.
Meanwhile, the federalists, once in power, set out to make the unity of the nation pay off in
every possible way. Hamilton brilliantly set the American economic engine going, and his work
was strong enough to survive Jefferson's mutton-headed effort to destroy everything Hamilton
But in the long run, the slavery built into the Constitution came close to tearing the nation apart.
Between the industrial revolution and the lack of slavery in the North, the North became the
destination of choice for most immigrants.
No one had guessed during the Constitutional Convention and ratification effort that immigration
would far outstrip natural population growth -- but only in the free states. No one guessed that
American manufactures would be far more valuable in trade, over the long haul, than the
products of slave labor on southern plantations.
So the three-fifths rule was actually quite ineffective for the South, after all. They lost control of
the House of Representatives surprisingly soon, and all their power centered in the Senate --
which was supposed to be the protector of the small states. (Southern reliance on the Senate was
so intense that when slave-state Texas was admitted to the union, it was given the right to split
itself into five states whenever it wanted -- thus adding eight more pro-slavery senators if the
free states ever seemed to be gaining an advantage there.)
Well, differential population growth had made the Southern states relatively smaller than the
northern ones! But one could hardly expect poor immigrants to go South, where they had to
compete with slave laborers for work, when in the North all workers had to be paid a wage!
The Constitution created a single nation, but one riven with a single deep contradiction that came
close to destroying it. Freedom for the slaves came at a high cost in blood and treasure -- but it
came. If insistence on the abolition of slavery had kept a single nation from forming, it would
not have slowed down the progress of slavery, but would in all likelihood have guaranteed its
The protections for slavery in the Constitution do not prove that the Founding Fathers were evil
or even pro-slavery; they simply regarded the formation of a single nation as being a higher
priority than getting the Southerners to give up their subjection of African slaves.
That evil was a hard one to get rid of, even after the abolition of slavery -- the legal oppression
and extralegal terrorization of African-Americans continued until the landmark court decisions
and Congressional legislation of the 1950s and 1960s.
It's a bit unfair to condemn the framers of the Constitution for failing to deal with a system of
oppression that continued into my lifetime, even after the Constitution's protections of slavery
were swept away.
David Waldstreicher's Slavery's Constitution therefore seems to me to be required reading, both
for those who think the Constitution was perfect and for those who think that it was evil. It was
the only means they could find to make a nation out of these thirteen quarrelsome colonies, and
on the whole, in this imperfect world, it turned out the most benevolent superpower the world
has ever known.
The tragedy is that America's black population was ground underfoot, not just during the slavery
era, but during the Jim Crow/lynch law era that the nation tolerated long after slavery was
The shame does not belong to the Constitution or its framers; the shame belongs to Americans in
all generations who did not speak out or actively seek to end the oppression of the Africans who
were brought to this country against their will, and of their descendants who continued to be
punished for being born black in a supposedly free country.