Washington and Lee Law Review
2020 forced scholars, policymakers, and activists alike to grapple with the impact of “twin pandemics”—the COVID-19 pandemic, which has devastated Black and Indigenous communities, and the scourge of structural and physical state violence against those same communities—on 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 Black people’s human and civil rights and their living conditions has become readily apparent. Less visible human rights abuses 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 and Indigenous people with rights, but no remedies, as they are forced to navigate a degraded existence suspended somewhere between citizen and foreigner, and more importantly, between life and death.
In analyzing the persistence, resilience, and agility of white supremacy in the United States, this Article proposes a departure from reliance on the extant antidiscrimination legal frameworks in the United States. The Article offers a theory of whiteness as contract, providing scholars, activists, and movement lawyers with 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 formally establishing racial equality with respect to citizenship—and with citizenship, the rights to contract and to property—an invisible common law sets forth that Black people are not in privity with the state and lack contractual capacity with the white body politic or 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 revoking the terms of whiteness and instituting a new social contract that accords Black people 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 analytical prism proposed in this Article to explore new advocacy strategies and to consider meaningful racial justice remedies.