Marissa Jackson Sow, who is joining the Law School in June as an Assistant Professor of Law, will be publishing her forthcoming article, Whiteness as Contract, in the Washington and Lee Law Review. An abstract of the article follows. Congratulations and welcome to incoming Prof. Jackson Sow!

Abstract:

The year 2020 forced scholars, policymakers, and activists alike to grapple with the impact of “twin pandemics”—the COVID-19 pandemic, which has devastated Black communities in the United States, and the scourge of structural and physical state violence against Black people—upon American society. As atrocious acts of anti-Black violence and harassment by law enforcement officers and white civilians are captured on recording devices, the gap between the human and civil rights to which Black people are entitled and their living conditions is readily apparent. Less visible human rights abuses, too, camouflaged as private commercial matters, and thus out of the reach of the state, are also increasingly exposed as social and financial inequalities have become ever starker. These abuses are not effectively reached by antidiscrimination law, leaving Black people with rights, but no remedies, as they are forced to navigate a degraded existence suspended somewhere citizen and foreigner, and more importantly, between life and death. 

This Article proposes a departure from reliance upon the extant antidiscrimination legal frameworks in the United States, offering up a theory of whiteness as contract as a new prism of analysis for the structural and physical violence that those raced as Black endure at the express direction of the state. Despite federal law establishing formal racial equality with respect to citizenship, and with citizenship, the rights to contract and to property, the terms of America’s social contract set forth that Black people lack contractual capacity with the state, the white body politic, and its individual members. Under the terms of this contract for whiteness for which those raced as white have bargained, Black people lack capacity to negotiate, occupy, or exercise a reliable authority over property. Moreover, whenever Black people are found to be in trespass on white property, they have no expectation of physical integrity, liberty, or life—or of remedies for breaches thereof. 

An end to anti-Black state violence requires the revocation of the terms of whiteness and the institution of a new social contract in which Black people are accorded full political personhood, and full citizenship, complete with full contracting capacity and authority and full protection of their contracts and proprietorship. Scholars and advocates committed to ending structural and physical anti-Black brutality may use the new framework proposed in this Article to explore new advocacy strategies and to consider meaningful racial justice remedies.