Marissa Jackson Sow’s brilliant article Whiteness as Contract pushes contracts scholars and critical race theorists to think about old topics in new ways by revealing connections between seemingly separate areas. It builds on Cheryl Harris’ Whiteness as Property, 106 Harv. L. Rev. 1709 (1993), to show the deep synergy between contract and white supremacy the way that Harris connected the private law of property to public law regulating racial subordination. Like Harris, Jackson Sow marshals high theory – here social contract theory — to explain persistent structural, economic, and physical harms to African Americans and in doing so prescribes a fix to those injustices. Jackson Sow’s “whiteness as contract” theory could and should shape many if not most future scholars’ writing about law and inequality.
We’re on the Contracts Jotwell page, so I focus on Jackson Sow’s Washington & Lee Law Review article. But you may already know about the breadth and ambition of Jackson Sow’s theory from the wide range of contexts to which she’s applied it: police brutality in Protect and Serve, 110 Cal. L. Rev. 743 (2022); enfranchisement in (Re)Building the Master’s House: Dismantling America’s Colonial Politics of Extraction and Exclusion, 121 Mich. L Rev. 113 (2023); and to defend critical race theory in Whiteness as Guilt: Attacking Critical Race Theory to Redeem the Racial Contract, 69 UCLA L. Rev. Disc. 20 (2022).
Together these articles offer the best answer I have encountered to persistent racial injustices. In a legal and social environment that trumpets its commitments to equal treatment, why do police continue to harass and brutalize African Americans, schools to shunt black youth down the prison pipeline, health care providers to deprive black patients of equal treatment, lenders to exploit black borrowers, to name just a few racial injustices? Because, Jackson Sow explains, our core commitment is to white supremacy, not equality. She asserts that the U.S’s “primary social contract – the U.S. Constitution – established the centrality of property ownership, and necessarily the right of contract” and formally excluded Black people from these rights via provisions such as the Three-Fifths Clause. (1820) In this view post-Civil War Reconstruction reforms such as the 13th, 14th & 15th Amendments and derivative legislation failed to “revoke the racist social contract.” (1821) Even after the reforms of the mid-20th century civil rights movement, racial injustices continue because, she explains, “[t]he signatories to the white supremacist racial contract viewed antiracist legal reforms as breaches to the contract and always sought to remedy those breaches via legal, illegal, and extralegal means.” (1822)
In other words, racial subordination is the rule, rather than an exceptional departure from a norm of race equality. Whiteness as Contract lays the theoretical foundation to reveal this truth and suggest interventions to remedy this deep defect in our justice system. The first of her two theoretical touchstones – Cheryl Harris’ notion of whiteness as property – is familiar to law professors. But one of the major contributions of Whiteness as Contract is Jackson Sow’s dexterous use of philosopher Charles Mills’ book The Racial Contract (1997) to expose connective tissue between the metaphysical social contract and commercial contracts.
Social contract theory à la Rawls imagines a primordial exchange in which our distant ancestors swapped the freedom enjoyed in a mythical state of nature for the so-called “civil freedom” of civilized society. In this view people chose in their self-interest to relinquish some freedoms to the state for their own good and the community’s greater good. Government – and thus law — is for everyone and by everyone. Mills critiques the idealism embedded in this model, in particular Rawls’ imagined “veil of ignorance” that prevents hypothetical designers of law and society from knowing their race, sex, level of wealth, or other social and physical characteristics. According to this widely used heuristic, that blindness allows us to imagine and create an ideal society in which legal and social rules would not allow – let alone facilitate — any one group to systemically dominate the others. Mills points out that Rawls’ forward‑looking approach conveniently ignores past harms and baked-in hierarchies that continue to distribute wealth and power to white men and away from white women and people of color.
A growing number of contracts scholars such as Mehrsa Baradaran likewise situate systemic racism as a breach of the social contract, and propose reforms as necessary remedies to that breach.1 Those proposals seek to reform what Mills calls “the Racial Contract” to make it live up to its liberal promise. Yet often legal scholars elide over the difficult matter of connecting the terms of the idealized social contract and the actual Racial Contract to commercial contracts. Whiteness as Contract fills this gap by clearly identifying the social contract terms that the Racial Contract breaches, thus creating a framework for doctrinal reforms to repair that harm.
Whiteness as Contract begins by detailing white vigilantes’ near-lynching of a black man who supposedly trespassing on private land with some white friends to watch a lunar eclipse, and water shutoffs in Detroit because the city charged (largely Black) residents more for the water in the vast reservoir under the city than whites who abandoned the city for suburbs. Jackson Sow marshals “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, . . . is regularly met with brutal resistance.” (1810) Her “theory of personhood “maps ways that Black people are stripped of contractual capacity and the rights to political, commercial, or personal proprietorship” (1810).
Of course, formal law has long enabled Blacks to exercise economic citizenship. But Jackson Sow looks behind the surface of black letter to explain how and why “proximity to whiteness comes with greater access to rights,” and “proximity to Blackness comes with greater exclusion from them.” (1812) Whiteness as Property argues that these relentless abuses persist because “whiteness is a 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.” (1810-1811) In short, “the terms of whiteness are written in an ‘invisible ink’” to maintain “a sociopolitical 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.” (1811)
Space constraints prevent detailed analysis of Jackson Sow’s convincing link between social contract theory and persistent racial bias in actual, commercial contracts. Her case study of the Detroit water crisis reveals that largely-black Detroit residents subsidize the water delivery to the more monied and more white suburban residents. (1855). Another contractual injustice that contributed to the sky-high Detroit foreclosure rates of 25% between 2011 and 2015 involved the city inflating Detroit real property taxes, tacking on inflated water bills to the taxes, and having those debts run with the property so that new owners enter already behind in their payments (1864-1865). She contends that formal rules such as property ownership get treated as mere tenancy under the Racial Contract, because “[w]hiteness is only valuable property when it is exclusive and exclusionary,” leaving African Americans “dependent upon the whims of the landlords” and white citizens “exercising their lay policing authority.” (1868) Think of New Yorker Amy Cooper calling the police on black bird watcher Christian Cooper in Central Park for the “crime” of telling Ms. Cooper to leash her dog.
Whiteness as Contract concludes that contract theory helpfully locates “the motivations of government to prey on Black and Indigenous people, extracting resources they enjoy, possess, and manage, and expropriating them for the benefit of white individuals, the state, and corporations.” (1881) Once we see this expropriation as a breach, the question of damages arises. Jackson Sow supports “antiracist racial contracting” (1833) in the form of, for example, supporting Black-owned and Indigenous-owned businesses (1844), ending extractive practices such as the Detroit water policies by charging affordable, flat rates for all regional consumers, and providing reparations for Detroit and Flint victims of water policies with tax credits to recognize and offset some of those losses. (1886)
Finally, Jackson Sow calls on her white readers to “recognize their individual and collective guilt” as either “signatories to or beneficiaries of an ongoing series of negotiations over the benefits and spoils of white supremacy.” (1888) It’s a perfect end to an extraordinary scholarly contribution that addresses a seemingly intractable social and legal problem, beautifully highlighting the role of high theory such as social contract analysis to our obligations to one another in the everyday matters of mortgages, grocery bills, student loans, and other contracts that shape our lives and life chances.
Editor’s note: For a previous review that discusses this article see Ezra Young, Trumpism and Critical Contract Theory, JOTWELL (Dec. 7, 2021).
- Mehrsa Baradaran, The Color of Money 281-283 (2017). For a full discussion of social contract theory in American legal doctrine, see Anita L. Allen, Social Contract Theory in American Case Law, 51 Fla. L. Rev. 1 (1999)
