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Excerpted From: Marissa Jackson Sow, Whiteness as Contract, 78 Washington and Lee Law Review 1803 (2022) (404 Footnotes) (Full Document)


MarissaJacksonSowOn July 4, 2020, Vauhxx Booker went to Lake Monroe, some sixty miles south of Indianapolis, Indiana, to watch the lunar eclipse with a group of friends. At some point during his visit, a group of white men accused Booker, a Black civil rights activist in the Bloomington area and a member of the Monroe County Human Rights Commission, and his friends of trespassing upon private property. According to Booker, he and his friends apologized, but the men--one of whom was wearing a hat featuring a Confederate flag--set upon him and assaulted him. The assault was partially captured on video by a group of bystanders, and the video shows the men surrounding Booker and pinning him against a tree while he and the bystanders pleaded for him to be left alone. The video captures the men shouting explicitly racist language at Booker and berating him for fraternizing with “five white friends.” Booker later reported that the men called for someone to bring a noose, and Booker sustained a number of injuries, including a concussion and having his hair ripped out. The police responded to the incident but declined to arrest Booker's attackers. Booker commented on his assault later that evening, characterizing the assault as an “attempted lynching.” The FBI announced an investigation into the violent assault days later.

Outrage following Booker's attempted lynching was swift: local officials condemned the attack, and protesters assembled on Monday, July 6, 2020, outside of the Monroe County Courthouse in support of Booker. During the protest, however, the driver of a red vehicle accelerated into the crowd of protesters, contributing to a trend by civilians and law enforcement agents of using their vehicles as weapons against civil rights protesters. After the attempted lynching, Booker joined a most unfortunate cohort of Black people who became the victims of America's racist violence for the offense of being alive and present in the wrong place at the wrong time. He is fortunate to have survived, and he is even more fortunate that so many other people witnessed his attack, and that at least one of those people captured a portion of the vicious assault on camera for the rest of the world to witness as well.

2020 cast a bright light on the stark difference in the realities of life and death between white and Black people in the United States. While global uprisings have directly responded to anti-Black state violence captured on recording devices, other widespread, but less publicly visible, human rights abuses against Black people have denigrated their qualities of life to a state suspended between life and death. Days after Vauhxx Booker escaped with his life in Indiana, a team of attorneys with the American Civil Liberties Union (ACLU) of Michigan brought suit in federal court in Detroit, demanding a permanent end to the water shutoff program under which Detroiters suffered for nearly seven years. In Detroit, where monthly water and sewage bills can exceed $150, over 140,000 Detroiters had their water disconnected from 2014 until March 2020. Shortly before the first cases of COVID-19 were recorded in Michigan in March 2020, the governor's office refused to intervene in the water shutoff program, noting that it had no reason to believe that the lack of running water posed a health emergency. Evidence shows that Detroit's Blackest neighborhoods were most impacted by the shutoffs, and that a positive correlation exists between zip codes with the most shutoffs and the most cases of COVID-19.

The most obvious and prevalent approaches to addressing these anecdotes is through the prism of rights. In Booker's case, the matter is criminal and, therefore, a matter of public concern, even though the defense asserted by his attackers is that he was trespassing upon private land while on his way to the lake. Should Booker wish to advance a civil rights complaint, he will need to prove that he was attacked because of his race or other protected status. Because of the presence of video, he may be able to meet the standard of proof--a difficult accomplishment in a country where proving racial discrimination in a court of law is notoriously difficult and less than 2 percent of civil rights referrals to the Department of Justice are prosecuted.

Both local and federal governments have reminded the people of the City of Detroit that they do not enjoy a right to water; rather water is a commodity that must be paid for. However, a right to water is firmly recognized by the international human rights system. Moreover, it is undeniable that human beings cannot live without water even when they are not threatened by a deadly virus mitigated by diligent hand washing. Reflecting attempts to privatize Detroit's water authority, and the ongoing commodification of water in the City, the rights-focused arguments for restoration of water services in Detroit have not yet prevailed in the courts. Notwithstanding the strength of the case the ACLU brought on behalf of Detroiters, a federal judge has found that the City of Detroit has a lawful interest in collecting on outstanding water bills.

At the core of these anecdotes is the question of the right and ability of Black people in the United States to traverse, possess, or enjoy property. Enjoyment of the right to property is a core benefit of American citizenship and of American personhood. This Article uses contract theory to explain why Black people's possession of property--including their rights to home ownership and life-sustaining utilities, their rights to personal physical integrity, their rights to cast votes, and their rights to existence in a public space--is regularly met with brutal resistance. In articulating a theory of personhood in which Black people are stripped of contractual capacity and the rights to political, commercial, or personal proprietorship, I explain how grave, anti-Black human rights abuses are tolerated and sanctioned within the United States. Governments escape liability for such abuses by promoting a formal legal contract under which all American citizens are entitled to the equal protection of the law while supporting private ordering under which the terms of whiteness are met.

Cheryl Harris has described whiteness as property. This Article sets forth the theory of whiteness as contract; or, whiteness as property that is bargained-for. The Article's central argument is that whiteness is the product of contracting--both commercial and social-- that creates, and continues to negotiate, an invisible common law that preserves control over property, capital, power, and contracting authority for those raced as white. The contract's goals are primarily economic, relying upon the expropriation of Indigenous land and the exploitation of Black labor on the expropriated land. This Article explores the use of commercial contracting by the state, as well as the state's interference with commercial contracting by Black people, as a way of maintaining and consolidating the benefits of whiteness guaranteed by white social contracting.

To test the theory, I focus on the twin performance mechanisms of whiteness: structural and physical brutality. The violence against Black people in the United States should not be regarded as a failure of democracy's engineering but as evidence of its flawless operation. We should instead regard water shutoff programs and land grab policies, along with the scourge of anti-Black police brutality and vigilante harassment, as sophisticated mechanisms for repairing breaches--real or perceived--to the terms of whiteness. This Article makes the case that what appears to be a gap in legal protections is actually where the terms of whiteness are written in an “invisible ink,” negotiating and maintaining a sociopolitical and economic order that places Black and Indigenous people outside of the law, outside of personhood, and--as necessary--outside of property, via displacement, dispossession, disenfranchisement, or death.

In this Article, I focus primarily on people of African descent who are raced as Black in the United States and secondarily on First Nations or Indigenous American peoples. I do so for the purpose of establishing a case study of how whiteness works, and not to exclude or erase the experience of Latinx, Middle Eastern and North African, or Asian and Pacific Islander communities, who also endure the burdens of being raced as non-white in the United States. Because Blackness is constructed in opposition to whiteness in the United States, focusing on the experiences of Black people's exclusion from America's social contract provides for a prototypical case study. Moreover, the oppositional constructions of whiteness and Blackness ensure that anti-Blackness is universal. Non-Black people of color along with people of color who are of African descent (who may or may not identify as Black) know that proximity to whiteness comes with greater access to the rights discussed in this Article, and that proximity to Blackness comes with greater exclusion from them. For that reason, focusing on Black people is actually the best way to test the theories this Article proffers.

I define Indigenous peoples as those nations and communities of people who were the earliest inhabitants of the Americas. Indigenous American peoples are not a race, but rather nations of people who have been racialized and who, like other peoples, have been raced. The Article recognizes that the term “Indigenous” is limiting insofar as all peoples are indigenous to one place or another. For the purposes of this Article, however, and with respect to the Americas, I use an expansive definition of “Indigenous” that is inclusive of First Nations' Americans, Indigenous Amazonian Brazilians, and Latinx peoples from Central and South America with recent and significant Indigenous ancestry. I recognize that individual people to whom my definitions of Blackness or whiteness may apply may also be Latinx or Indigenous, and I also acknowledge that people may be Black and Indigenous at once, and that mixed European ancestry is also a part of the Black and Indigenous experience. Such is the nature of race and race-ing.

I use an expansive definition of Blackness that includes all peoples having sub-Saharan African ancestry, acknowledging that African peoples are themselves “indigenous” to the African continent and come from nations and sovereign empires with long and important precolonial histories. This definition is intentionally inclusive of people commonly known as “Hispanic,” “Latino,” or “Latinx” who hail from the Caribbean region and Central and South America, including, but not limited to, people of partial, significant, or predominant African descent from Brazil, Puerto Rico, and the Dominican Republic. This definition of Blackness can include people raced as “colored” in South Africa, for example, or people of mixed Indo- and Afro-descendant ancestry in Guyana, Jamaica, or Trinidad. It similarly acknowledges Afro-descendant communities in Arab states such as Iraq, Saudi Arabia, and Yemen, in South Asia, and in the Pacific.

In Part I of the Article, I establish the theory of whiteness as contract. I also articulate a theory of race and personhood that establishes Black people as third-party beneficiaries of this contract under the most favorable circumstances, subcontractors under other circumstances, and as trespassers in the least favorable (and most life-threatening) cases, due to their subordinated status as natural beings devoid of politics. In Part II, I set forth the terms of the contract, including terms of performance and provisions for remedying breach. Part III applies the theory of whiteness as contract to the following case studies: the water shutoff and mortgage foreclosure scandals in Detroit, Michigan; the civil settlements and criminal investigations relating to the Flint water scandal; and Byron Allen's lawsuit against Comcast Corporation for racial discrimination under § 1981 of the Civil Rights Act of 1866. Part IV discusses social and political action as a meaningful path toward the revocation of the contract of whiteness and reparative justice for Black people in the United States.

[. . .]

Analyzing human rights abuses endured by Black people in the United States through the prism of private ordering is helpful because such rights do not easily correspond to remedies for the survivors of these abuses under extant legal frameworks despite the existence of formal rights and legal protections. The depths and gravity of these abuses also take on new conspicuousness and dimension when viewed not just as the violations of rights, but as material extraction and exploitation. Importantly, when human rights violations are viewed through the lens of economic exploitation, cost, and damages, the discussion of accountability and redress can more easily include concrete measures for reparative justice.

The racial justice uprisings of 2020 have reminded scholars and advocates that social movements catalyze legal and political change with much more efficiency and greater impact than legal change catalyzes social and political change. The uprisings have caused everyday people who are raced as white--to whom the economic, social, and political benefits of whiteness accrue daily--to acknowledge that they are beneficiaries of an illicit and unjust racist contract, even if they were never signatories, and to consider joining Black and Indigenous people in demanding the contract's immediate rescission.

In her testimonial to The Racial Contract, Jennifer Hochschild writes, “Mills has made it especially clear how whites dominate people of color, even (or especially) when they have no such intention” before noting “[h]e asks whites not to feel guilty, but rather to do something much more difficult-- understand and take responsibility for a structure they did not create but still benefit from.” This Article does not ask white people not to feel guilty. It is my hope that white readers will recognize that human rights abuses against Black people are occurring in real time, often captured on iPhones and social media feeds, and thus in their presence.

This Article calls upon white people to recognize their individual and collective guilt and privilege. It exhorts them to confront their roles as either signatories to or beneficiaries of an ongoing series of negotiations over the benefits and spoils of white supremacy, for which many members of the white body politic will steal and kill to defend and uphold. In future projects, I look forward to discussing the embrace of white guilt as a prevention and cure for racism and racist atrocity. For now, however, this Article concludes with a call for white people to join communities of color in divesting from whiteness and denouncing the contracting of whiteness as unconscionable. This type of social action, combined by reparative policy changes restoring and protecting the rights of contracting and proprietorship to Black people, offers a meaningful path toward political personhood, reliable and equal protection of the law, and full enjoyment of American citizenship.

Assistant Professor of Law, St. John's University School of Law. B.A., Northwestern University; J.D., Columbia Law School; LL.M, The London School of Economics and Political Science.

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