Abstract
Excerpted From: Ciji Dodds, The Constitution as a Racial Contract, 28 University of Pennsylvania Journal of Law and Social Change 19 (2024) (422 Footnotes) (Full Document)
Blackness is an ocular irritant. The blue gaze is the search for the “secret madness” that lies within the Black body. The secret madness is the child of the Black imagination, an alchemical space where malice aforethought and wantonness dance to the syncopations of violence. The Black imagination is afflicted with drapetomania. It produces infinite fantasies of insurrection and insubordination. The gazer is consumed by the delusional belief that he can read the mind of a Black person and discover the crimes against white supremacy and crimes in law she has fantasized about committing. The gazed upon is consumed by the knowledge that, in an instant, the gazer could arrange for the confiscation and annihilation of her body. Their encounter is steeped in latent violence. She knows that she must move throughout the world painstakingly, with intention and deliberation, so as not to awaken the gazer's fear of Blackness.
“The Negro is a phobogenic object, a stimulus to anxiety.” The blue gaze summons into existence racialized cognitive illusions and hallucinations. It is triggered by the sight of the Black body or the paranoid sensation of Blackness looming. Within the blue gaze, the Black body is a dangerous, hyper-visible fixed object that is suspended in an “atmosphere of certain uncertainty.” The Black body is “supersaturated with meaning.” The rule of law has inscribed upon it a white supremacist regime of truth comprised of taboos, Manichean allegories, and theories concerning its predatory proclivities. Her humanity, except for the presumption of mens rea, is invisible. She exists as a criminal “before the crime and even outside it.” She is a mad woman and yet a criminal genius. Each time, she “must ... prove to others that ... [s]he merits being taken for a fellow human, that [s]he is ... 'a[wo]man akin to others,’ ... who is like us, who is us, who is one of ours.”
With pupils vacillating between dilation and constriction, the gazer audits her body. The hypothesis is standard. A person will behave as a person. A Black person will behave as a Black person--guilty by heredity. Deviant. The liturgical exercise of racialized policing commences. First, determine her physical location. Is she in her proper place, or is she violating society's unspoken boundary laws, the laws that designate where Black people are allowed to be and how they are allowed to be? Second, examine her disposition: resigned or liberated, compliant or defiant. Third, evaluate her body's potentiality: dormant threat or active threat, inanimate or primed. Finally, investigate her eyes: avoidant or direct, supplicative or uppity.
The blue gaze emanates from the eyes of law and order. The eyes of law and order are the “inner eyes” of “We the People,” “those eyes with which [We the People] look through [our] physical eyes upon reality.” We the People represents America's collective consciousness. Hence, the blue gaze is the anti-Black, downward gaze that America uses to observe, analyze and investigate Black people through the lens of the white supremacist myth of Black criminality. The blue gaze is the gaze of racialized policing.
The eyes of We the People are laden with the original intent of the architects of America's constitutional evil. With a sleight of hand, a wink, a nod, and a gentlemen's agreement, the Founders' greatest achievement was transforming the idea of America into a proselytizing religion. According to America's creation story, the Founding Fathers commanded, “Let there be light,” and out of the darkness of tyranny appeared a heroic republic bathed in the metallic gleam of democracy and egalitarianism. The Declaration of Independence was the ultimate expression of self-determination. Actually, the Declaration of Independence announced the success of slave capitalism. America's ultimate expression of self-determination was utilizing white supremacy, genocide, and slave capitalism as pillars of sovereignty.
The Black slave defined white freedom. The blue gaze is the byproduct of the cognitive dissonance that animates America's creation story. This cognitive dissonance frames America's double illegitimacy--a slavocracy posing as a democracy and a nation birthed from genocide. America's life depended on death. We the People created the blue gaze to absolve ourselves of our original sin by reaffirming the white supremacist ideologies that rationalized chattel slavery and the formation of a slavocracy. God ordained white freedom. God ordained chattel slavery as the burden the white man must bear to civilize the Black heathen.
Blackness is abnormal. “The abnormal is the 'other’ that defines the “normal' ... and it also becomes a linchpin of modern racism.” Abnormality defines criminality. Abnormality must be studied, controlled, and corrected. Black people are the abnormal, criminal other who must be studied, controlled, and corrected.
African indigeneity was a focal point for the genesis of modern hemispheric criminal justice and criminological apparatuses and is traceable to the transatlantic slave trade as well as the earliest stages of the diasporic African presence in North America ... the slave ship was “a mobile, seagoing prison at a time when the modern prison had yet to be established on land.”
The Black bodies that arrived at the colonies' shores were the “depositor [ies] of maleficent powers.” Thus, white supremacists used the myth of Black criminality to fill the gap between the right to be human and the fate of being dehumanized. Black people were the terrifying objects of property: the ugly, utilitarian, and necessary evil.
Slavery haunted the souls of those white folk. The drafting of the Constitution was a process fraught with “self-deception” and bad faith. The brow-beaten and reluctant anti- slavery contingent is a myth. The Constitution of tortured moral compromises is a myth. The delegates colluded to sacrifice Black life for white freedom. All parties knowingly and intentionally preserved slave capitalism because white supremacy served their psychological, personal, political, or economic interests. “[N]o power is given to the general government to interpose with respect to the property in slaves now held by the states .... [it] would be a usurpation of power. There is no power to warrant it in [the Constitution] .... I believe such an idea never entered into any American breast.” They dickered over terms and made strategic alliances to produce the Constitution: an instrument of governance that memorialized their political commitment to white supremacy, white moral psychology, and white moral theorizing.
Utilizing Charles Mills' “Racial Contract” theory, I make two claims in this article. First, the Founders' Constitution (the “Constitution”) was not the embodiment of a raceless social contract. The Constitution was a literal Racial Contract comprised of subpersonhood provisions that “restrict [ed] the possession of natural freedom and equality to white men” based on the ideology that due to Black people's “natural attributes,” they “lack[ed] or [had] a lesser capacity for reason and self-government.” This article argues that the subpersonhood provisions were the slave trade clause, fugitive slave clause, domestic insurrections clause, domestic violence provision, and later, the Second Amendment.
Charles Mills disrupts modern political philosophy by arguing that the social contract, in its original and contemporary formulations, “obfuscates the ugly realities of group power and domination” and is a “profoundly misleading account of the way the modern world actually is and came to be.” The Racial Contract is a more accurate, reality-based conceptual apparatus for examining the formation and evolution of societies, laws, governments, and group moral psychology. Mills' premise is that “white supremacy is the unnamed basic political system that has made the modern world what it is today” and “that has shaped the world for the past several hundred years.” It is the foundational element of government. Government is not the product of the consent of all men, who are inherently equal. Embedded in the social contract theory is a tacit agreement that government is the product of the consent of white men because personhood, and therefore, manhood, and therefore equality, is defined by whiteness.
A white person need not be a signatory to benefit from the Racial Contract. The Racial Contract is a domination contract where the domination and exploitation of nonwhite persons results in “de facto as well de jure white privilege ... [and] the racialized distributions of economic, political, and cultural power” that persists today. In essence, the Racial Contract is a global theoretical framework that exposes the centrality of race in Western political theory and state formation.
Mills makes three claims:
[T]he existential claim--white supremacy, both local and global, exists and has existed for many years; the conceptual claim--white supremacy should be thought of as itself a political system; and the methodological claim--as a political system, white supremacy can illuminatingly be theorized as based on a ““contract” between whites, a Racial Contract.
Mills' theory is constituted by ten theses:
1. “The Racial Contract is political, moral and epistemological.”
2. “The Racial Contract is a historical actuality.”
3. “The Racial Contract is an exploitation contract that creates global European economic domination and national white racial privilege.”
4. “The Racial Contract norms (and races) space, demarcating civil and wild spaces.”
5. “The Racial Contract norms (and races) the individual, establishing personhood and subpersonhood.”
6. “The Racial Contract underwrites the modern social contract and is continually being rewritten.”
7. “The Racial Contract has to be enforced through violence and ideological conditioning.”
8. “The Racial Contract historically tracks the actual moral/political consciousness of (most) white moral agents.”
9. “The Racial Contract has always been recognized by nonwhites as the real determinant of (most) white moral/political practice and thus as the real moral/political agreement to be challenged.”
10. “The 'Racial Contract’ as a theory is explanatorily superior to the raceless social contract in accounting for the political and moral realities of the world and in helping to guide normative theory.”
Drawing from Hobbes, Locke, Rousseau, and Kant, Mills challenges the “official ontology of the ideal Enlightenment, where abstract raceless and colorless individuals are treated as persons equally deserving of respect,” by illuminating the Enlightenment's “actual dark, 'naturalized’ social ontology.” He deploys his theory normatively and descriptively “to explain the actual genesis of the society and the state, the way society is structured, the way the government functions, and [the development of] people's moral psychology.”
Modern philosophers have treated racism as a gross deviation from Enlightenment philosophy, notwithstanding the fact that racism was an integral component of Enlightenment philosophy. “European humanism usually meant that only Europeans were humans.” The spoken of “human” was a person entitled to freedom and equality. However, in many instances, whiteness was the condition precedent to being a person. The covert and sometimes overt agreement undergirding Enlightenment philosophy, including the social contract, natural rights and duties, and utilitarianism is that nonwhite people were the exception to the rules. Nonwhite people were subpersons.
Mills defines a subperson and subpersonhood in terms of the relationship between the body politic and white supremacy. According to Mills, “[t]here are bodies impolitic whose owners are judged incapable of forming or fully entering into a body politic.” Subpersons are members of such class.
Subpersons are humanoid entities who, because of racial phenotype/genealogy [or] culture, are not fully human and therefore have a different and inferior schedule of rights and liberties applying to them. In other words, it is possible to get away with doing things to subpersons that one could not do to persons, because they do not have the same rights as persons.
At best, a subperson is a natural non-citizen, if not a natural slave. As subpersons, nonwhite people were installed in society as the ruler by which inferiority was measured. They were not “rational self-directing entities whose rights must be respected, and who must be treated as ends-in-themselves rather than merely instrumentally.” Enlightenment moral psychology legitimized the instrumentalization and exploitation of Black people.
I characterize the slave trade clause, fugitive slave clause, domestic insurrections clause, domestic violence provision, and the Second Amendment as subpersonhood provisions because they criminalized Black people's rights to freedom, resistance, insurrection, and agency, in the interest of protecting and strengthening slave capitalism. Inherent in those rights is the right to use violence to eviscerate one's oppressor. The provisions were designed to divest Black people of the most critical elements of equality, personhood, and liberty because they were centered around the commodification of Black bodies and crushing Black insurrections. Consequently, they established that a different and inferior schedule of rights and liberties applied to Black people. The provisions constitutionalized Black people as de facto slaves or if free, natural non-citizens. Ultimately, they alienated Black people from the body politic that constituted We the People.
Therefore, whereas Western political philosophy is presented as proceeding from a social ontology of the equality of persons, it is essential to recognize that the equality of persons is a reference to the social ontology of those who counted as persons. References to the rights, liberties, and privileges of “all men” means “all white men.” Race(ism) was a constitutive dimension of the Enlightenment and the social contract theory. Accordingly, whereas America is presented as rooted in Enlightenment philosophy, and particularly, the social contract theory, race(ism) was a constitutive dimension of America's formation and existence.
America's preexisting moral foundation was not raceless equality. Based upon the Founders' and Framers' actions, it can be deduced that they determined that white men were the only individuals who “possess[ed] the capacities required to grasp the universal principles fundamental to civil society and thus the capacities to govern others.” Thus, according to Mills, the Constitution was designed to uphold a:
racial state, racial polity, and racial juridical system, where the status of whites and nonwhites is clearly demarcated, whether by law or custom. And the purpose of this state, by contrast with the neutral state of classic contractarianism, is, inter alia, specifically to maintain and reproduce [] racial order, securing the privileges and advantages of the full white citizens and maintaining the subordination of nonwhites.
Second, I argue that because the subpersonhood provisions were predicated upon Black existence as a national security threat and enduring emergency, they could only be enforced through ideological conditioning and violence. The blue gaze was the mechanism of ideological conditioning, and racialized policing was the mechanism of violence. The results were twofold. First, the provisions established the blue gaze as America's constitutive gaze and racialized policing as a right, obligation, and privilege attached to whiteness. Second, the blue gaze and racialized policing were constitutionalized as indispensable, joint instrumentalities of governance, concretizing them into America's foundational order.
This article illuminates the “actual dark, 'naturalized’ social ontology” of the Constitution within the Racial Contract framework. I posit that the Constitution is the philosophical and material manifestation of Mills' Racial Contract theory and therefore, a tangible Racial Contract comprised of binding terms and conditions. The Constitution was negotiated, entered into by and among parties for consideration, and duly executed. A tangible racial contract such as the Constitution not only embodies Mills' theory, but it goes a step further. It establishes society-specific, particularized terms and conditions, and functions as an operational instrument. In sum, I seek to advance Mills' theory, arguing that the Racial Contract exists philosophically and in material forms.
In Part I, I explicate my theory of the Constitution as a Racial Contract arguing that white supremacy was the hidden covenant that framed the Constitution. I explain the contractual terms, principles of interpretation, and subsidiary slavery contract. I conclude by arguing that the Constitution's history, structure, and provisions reveal that the criminalization of Blackness is rooted in the criminalization of Black people's refusal to engage in the ongoing process of self-negation required to view oneself as inferior. In Part II, I analyze the relationship between the slave trade clause and the commerce clause. Pursuant to the slave trade clause, the delegates created a subset of people relegated to the presumed legal status of property. Next, I examine the domestic violence provision and the domestic insurrections clause--provisions that memorialized America's fear of Black insurrections and conceptualization of Black people as a national security threat.
In Part IV, I analyze the fugitive slave clause, arguing that it is a subpersonhood provision because it affirmed the propertization of Black bodies and the ability of slaveowners to operate as the coercive arm of the state through the use of violence and quasi-federal power. Finally, in Part V, I analyze the history, language, and application of the Second Amendment. I argue that it not only codified white men's preexisting right to bear arms and protected state militias, but it also codified white men's preexisting right to engage in daily exercises of racialized tyranny and terrorism.
[. . .]
“[T]he web of slavery is sticky business. And at the end of the day, ain't nobody clear of it.” The Constitution memorialized America's creation story and double illegitimacy. It memorialized the “ontological shudder” that the fear of Black insurrection and retribution elicited from the white dominated polity. It was not raceless. The Constitution was a Racial Contract whose provisions deified race, placing it above the Laws of Nature and of Nature's God. In the Constitution, we see ourselves through the eyes of others, measure our legal subjecthood “by the tape of the world that looks on in amused contempt and pity.” By protecting an institution that could only be maintained by terror, the Constitution created an internal enemy, whose existence undermined and destroyed from within the values the Constitution claimed to hold.
Associate Professor of Law, Albany Law School.
