Become a Patreon!


Excerpted From: Marissa Jackson Sow, Whiteness as Guilt: Attacking Critical Race Theory to Redeem the Racial Contract, 69 UCLA Law Review Discourse 20 (2022) (51 Footnotes) (Full Document)


MarissaJacksonSowPresident Joe Biden did something extraordinary in his inaugural address on January 20, 2021, naming and denouncing white supremacy from the steps of Capitol Hill, where a mob comprised primarily of fascists, white nationalists, and their angry right-wing populist sympathizers had attempted to overthrow the government and overturn Biden's election just two weeks prior. That President Biden does not hold particularly progressive views on racial justice or any other political issue made the moment all the more stunning. Indeed, the admission by a white American president that white supremacy was a major force requiring denunciation, disavowal, and a promise of disinvestment therefrom was not only remarkable, but also controversial. President Biden had admitted, on behalf of the entire nation, to the guilt of the nation for relying upon white supremacy for its power--guilt that President Barack Obama had taken great lengths to deny in his own inaugural address twelve years earlier.

The moment stood in stark contrast to the images of the January 6, 2021 Capitol Hill Riot: The rioters hoped that their violent raid of the Capitol would embolden fascists and ethnonationalists in their crusade against a multicultural America that had been contemplating the dismantlement not only of Confederate monuments, but of the legal and economic order that those monuments represented. Biden's speech on the steps of the Capitol also served as a discursive and symbolic rejection of the image of his predecessor's endorsement of white supremacist violence. In June 2020, President Donald Trump notoriously stood in front of St. John's Church in Washington, D.C. after ordering the spraying of tear gas on activists peacefully protesting George Floyd's murder, silently holding a Bible in his hands to communicate to his supporters that his use of his extreme white male privilege to engage in unjustifiable acts of violence against the American citizenry was the establishment of a new norm--a resilient and universal innocence and immunity for white people committing violence, expressly on the basis of their whiteness.

President Biden's denunciation of white supremacy led conservative activists and pundits to announce that his words offended them. By merely acknowledging the existence of white supremacy, Biden was interfering with a system of whiteness that had been negotiated and constructed for their collective benefit, and which always received more than the benefit of the doubt. As a result, conservative pundits labeled the speech divisive, accusing Biden of wrongfully accusing them of being racists. In a society that has been educated to believe that racism would die out over time, the reaction of conservatives and the far right to basic acknowledgments of the role that racism has played in American society even after the Trump presidency has been shocking; after all, how could anyone but an overt racist absorb a rejection of racism as a personal affront? Only a hit dog will hotter.

It is possible that those conservative and alt-right commentators who took offense to President Biden's speech did not realize that they were revealing their own commitments to white supremacy, though their protestations of and concerted attacks on critical accounts of American history reveal their explicit investments in white supremacy and their defenses and celebrations of white nationalism. The ever-escalating attacks on Critical Race Theory and works authored by nonwhite people (and Black people specifically) are an American manifestation of a global resurgence in authoritarian white nationalism and a highly organized alt-right movement that is organizing to secure global white domination throughout the Americas and Europe. Academic and political movements such as Critical Race Theory (CRT), Critical Legal Studies, ethnic studies, postcolonial theory, and Négritude have, for decades, enhanced students' understandings of white supremacy's role as the root of evil systems such as colonialism, caste, and race- and color-based systems of slavery.

After George Floyd's murder, longstanding global condemnations of racism transformed into efforts to eradicate white supremacy in all of its forms--posing a severe threat to those most deeply invested in the power and privileges of whiteness. No longer satisfied with operating in the shadows, the signatories to the whiteness contract have decided that white supremacy, condemned as guilty, must be redeemed.

Progressive scholars of criminal law question the assumptions of guilt attaching to criminal convictions within a justice system that pushes people of color to enter guilty pleas regardless of whether they have committed an offense in violation of criminal laws. This Essay advances my exploration of whiteness as contract by questioning assumptions of innocence attaching to people raced as white, whether within a criminal law context or beyond. A feature of whiteness is the presumption, and even a guarantee, of innocence for those raced as or perceived to be white in courts of law and in public opinion, even in the face of incontrovertible evidence of their culpability. Viewed within the contractual context, innocence is a term of whiteness--it is very literally part of whiteness's bargain, a key element of the negotiated package. Conversely, a guilty Blackness is also part of the whiteness contract, and this helps to understand the structuring of the American criminal justice system to disproportionately prosecute and convict Black people, the psychological associations that people make with Blackness and guilt, and the popularity of the idea that CRT and Black thought generally are guilty of being un-American, and thus, immoral. The assumption of white innocence must be revoked, along with the entirety of that racial contract, in order to dismantle white supremacy and achieve a just society. This Essay thus considers the attacks of the white right on CRT not just as a defense of white people as innocent, but also as a redemption of a right for white people to be guilty when the appearance of innocence is impossible or politically disadvantageous.

[. . .]

The war on Critical Race Theory is not an attack on the theory of interest convergence or any other specific concept in the CRT canon; it is a war on Black history, Black thought, Black culture, and Black life in the United States. It is also a recent manifestation of a centuries-long struggle over who has the legal, political, economic, social, and cultural authority to be innocent--and human--in America. This fact is of critical importance, particularly for those legislators, policymakers, and participants in the American educational system who may too easily be tempted to compartmentalize and minimize the attacks as fringe, absurd, and relatively inconsequential. Within the legal academy, faculty, administrators, students, and boards of governors alike must realize that Critical Race Theory, Critical Legal Theory, and Feminist Legal Theory emerged within the legal academy precisely because core law school curricula, faculty hiring and promotion practices, and grading and evaluation conventions also wage war on Black people and other marginalized communities.

The whiteness contract is negotiated by its signatories, but it is sustained by its beneficiaries. Black resistance to the whiteness contract will always be met with violent, ridiculous, vengeful backlash, as it always has been. And if they are acting alone, white people who stand against white supremacy will also be treated as if liable for tortious interference of the contract. Ultimately, while the Ida B. Wellses, Derrick Bells, Ella Bakers, Charles Millses, Lani Guiniers, Kimberly Crenshaws, Patricia Williamses, Gerald Homes, Stacey Abramses, and Kara Walkers of the world can and will call attention to the racial contract and beseech us to recognize it as the enemy of justice, those peoples whom the contract excludes can only resist the contract. The power of rescission and revocation lie with those for whom it was negotiated. In terms of policy, this means that Black people must recognize that many of their white friends are doing their enemies' work--that they, too, are engaged in gaslighting and ideological violence against Black voters, telling them that they should be grateful as they melt, slowly, under impossible living conditions, like a molasses subtlety.

Within legal academia, perhaps it is time to recognize that there is a wide gulf between diversity, equity, and inclusion (DEI) and racial justice--and that while racial justice is what students have been demanding, DEI is what schools have been offering them in return. Hiring Black faculty to teach “civil rights courses” with no movement on transforming (or abolishing) the student evaluation process and no procedure to make sure that Black faculty are not abused by students or their colleagues is the equivalent of gawking at beautiful molasses structures of enslaved Black children as if one is staring at gorillas at the Bronx Zoo, admiring how interesting and intelligent they are while they writhe in agony, screaming for help, before crumbling into the floor. It does not mean hiring a Black woman as DEI dean and making her responsible for fixing problems the administration has already decided it will do nothing about. It does not necessarily mean that the top cited scholars should not all be white, and that a community that still believes that the best scholars still can only be white men (some of whom publish bigoted violence) is a white supremacist one. It means that many institutions that claim to be striving to be antiracist are guilty, guilty, guilty.

The desire for redemption is understandable, and thoroughly human. But redemption is not relative or dependent: One's innocence is not premised upon the guilt of another. The attacks on Critical Race Theory spring from a desire for whiteness to be associated with innocence and valor, coupled with a desire for whiteness to be perpetually privileged with impunity. That is to say, whiteness wants the pleasures of guilt and the appearance of innocence. And in a profoundly subtle irony, whiteness desires the appearance of innocence vis-a-vis the Black people it has substantively and procedurally condemned, placing Black people in a most interesting and precarious position of indispensability while also condemned to a cultural death row of sorts--much like the Sugar Sphinx and her babies. But this is madness; and it is for this reason that white supremacy is ultimately a murder-suicide. Because whiteness exists only in relationship to nonwhiteness, the destruction of the nonwhite necessarily leads to the destruction of the white. The erasure of Black history, Black culture, Black ideas, and Black life is the erasure of Americana. It is the destruction of the American labor force and every cultural export that makes America formidable worldwide. Instead of seeking self-preservation via innocence, America's best chance at survival--at redemption--will come via confession, atonement, and repentance.

Marissa Jackson Sow is an Assistant Professor of Law at the St. John's University School of Law.

Become a Patreon!