ContractsProf Blog

Editor: Jeremy Telman
Oklahoma City University
School of Law

Tuesday, April 27, 2021

Guest Blogger Marissa Jackson Sow on Whiteness as Contract and the Police, Part I

Whiteness as Contract as a Framework for Understanding America’s Police Problem

Marissa Jackson Sow

Part One: Police as Guardians of the American Racial Contract

Policing in the United States has never been a more controversial issue than it is right now. In what has been described by some commentators as an apparent revenge spree, at least six police killings immediately accompanied or followed the conviction of Derek Chauvin for his gruesome murder of George Floyd—a conviction preceded by the police killings of Adam Toledo and Daunte Wright. Police in Columbus, Ohio shot teenaged Ma’Khia Bryant to death just before the Chauvin verdict was announced, and her killing was followed almost immediately by the fatal police shooting of Andrew Brown, Jr. in North Carolina, and the non-fatal shooting of Isaiah Brown in Virginia.

Jackson SowThe first iteration of policing in the Southern states was established to help white slaveowners to protect and secure their property—most notably, enslaved Africans. As slavecatchers, slave patrolmen were responsible for catching escaped slaves. Enslaved Africans were also collateral assets, and a landowner who owed debts, say, to a bank, could lose his slaves to a banking institution. Law enforcement officers enforced the repossession of the enslaved when mortgage contracts entered into default, much as sheriffs and marshals continue, today, to enforce the foreclosure of real property. Judicial enforcement of foreclosure by police is codified in Article 9 of the Uniform Commercial Code: while humans may no longer be legally bought, sold, and mortgaged in the United States, the history of policing in the antebellum South exemplifies the clear links between commercial contracting, American racial capitalism, and the legal and political contracting of whiteness.

Understanding that policing’s history is not quite past allows for the definition of police as the guardians and enforcers of America’s Whiteness contract. Once so defined, the disparities in police’s responses to Kyle Rittenhouse and Dylan Roof versus their responses to Ma’Khia Bryant, Walter Scott, Philando Castile, Alton Sterling, Eric Garner, Breonna Taylor, Botham Jean, and Atatiana Jefferson must then be understood not as the result of implicit bias and inadequate training, but as systematic and intentional acts meant to protect the contracting of whiteness and serve the contractors.

Whiteness is not inherently biological, though it is biologized over time, so long as the terms of whiteness remain stable. Whiteness is, rather, a matter of law and policy—both formal and informal. I define whiteness as “a political status continuously, and collectively, negotiated by those who possess the status of whiteness and recognize it as an asset. This asset is bargained-for via a system of separate yet interrelated and coordinated commercial (and legally enforceable) contracts and social contracting, which is often tacit though given force through the law.”

Gabriel Nicolas de la Reynie, founder of the first uniformed police force in the world.

The most common critique of the theory whiteness as contract is that it describes a social contract, and that social contracts are not “real” contracts. However, and as I have written elsewhere, the social contract which creates and perpetuates whiteness in the United States is wholly dependent upon interrelated systems of government policy and commercial contracting; as such, the rejection of social contracting as irrelevant to private contract theory is ahistorical at best, and otherwise disingenuous. Policing is one such institution that highlights the way in which private contracting supports social contracting; locating policing within the history of American racial capitalism provides still more insight into the role of policing in preserving white supremacy today.

Because the domination of capital and the power to exercise commercial and political proprietorship are central to whiteness, and because such proprietorship has also historically been definitive of masculinity, the ability to manage and guard property became a way for poor white men to secure their statuses as both men and as persons deserving of the status of whiteness. Professor Teri McMurtry-Chubb has recently written about how overseers’ employment contracts gave working-class overseers access to whiteness and masculinity via the acquisition of middle-class property management positions and salaries. The overseers’ material benefits and the social status could be curtailed by their aristocratic bosses, the planters, who judged overseers on their ability to create wealth for the planter by effective, efficient management of land and (human) chattel. McMurtry-Chubb’s research revealed that planters sued overseers for loss of property if, for example, an overseer beat an enslaved person to death. Such lawsuits were among the factors that worked to keep overseers in positions of social and financial vulnerability.

Police occupy a very similar role in American society today. They are working-class laborers for whom promotions can provide access to a middle-class salary and lifestyle. Their success as members of America’s white body politic hinges upon their ability to protect white property (including from racial justice-focused “riots”) and to guard, more generally, against threats to white proprietorship and authority. They are thus required to contain and suppress Black and Indigenous populations as necessary, using the threat of violence as a mechanism to keep Black and Indigenous communities humble, subdued, and submissive to the terms of whiteness. But, as Derek Chauvin has proven to the police, they must not go too far in so doing, lest they be punished via “pro-police prosecution” so that the institution of policing—and whiteness—can be publicly absolved and allowed to persevere.

A system of racial capitalism, which premises whiteness upon its ability to exclude, exploit, and extract capital from Black and Indigenous people, necessarily relies upon necropolitical force in order to maintain a position of dominance and power. Policing is necessary to enforce this system, and policing that protects racial capitalism is thus both inherently American, and necessarily racist. It is for this reason that critiques of policing are often characterized as anti-patriotic, anarchist, and anti-white: because policing protects whiteness, abolishing the police is rightly viewed as an attempt to abolish whiteness, and perhaps even white people. Derek Chauvin’s termination from his post after George Floyd’s death, and his recent criminal convictions for Floyd’s murder represent a rare, but potent breach of the racial contract, and in the eyes of police and right-wing commentators, a betrayal of the contract’s enforcers. American history shows that no breach of the racial contract is ever left unpunished.

Perhaps the campaign of vengeance has already begun. Video of Ma’Khia Bryant’s shooting death appears to capture a police officer yelling “Blue Lives Matter” at Black neighbors who gathered at the scene of the killing. Analysis of the officers’ statements through the lens of whiteness as contract lends support to the idea that the police are seeking to remedy breaches to the racial contract; viewed otherwise, the comments are inexplicable.

Why would a uniformed, on-duty police officer feel comfortable yelling racially provocative statements at Black people, even though such actions directly violate the terms of their employment contracts? Police have long relied upon another contract, one that is tacit and invisible to the public, but palpable to those targeted by policing for containment, detention, and elimination. Stopping the phenomenon of police killings of Black and Indigenous people in the United States requires a clean break with the racial contract; considering the role of police in enforcing the terms of that contract forces us to consider whether we can do so without also breaking with the institution of policing, too.

In the subsequent post, I will use contract theory to analyze the gaps between our expectations of police behaviors and the behaviors police actually exhibit within Black and Indigenous communities. To do so, I will discuss policing using the concepts of mutual assent, unconscionability, and reliance. 

This post is part of a continuing series on introducing critical perspectives, including critical race theory, into the teaching of first-year contracts.  Other posts in the series include:

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