The current social contract in America is not an expression of our deepest values, greatest hopes and highest ideals. Quite the contrary: it is the result of a centuries-long series of compromises with white supremacists.
In his original draft of the Declaration of Independence, Thomas Jefferson included a forceful denunciation of slavery and the slave trade, condemning the “execrable commerce” as “cruel war against human nature itself”. The leaders of the states engaged in the buying and selling of Black bodies balked at the offending passage, and Jefferson explained the decision to compromise, writing, “The clause … was struck out in complaisance to South Carolina & Georgia who had never attempted to restrain the importation of slaves, and who on the contrary still wished to continue it. Our northern brethren also I believe felt a little tender under those censures; for tho’ their people have very few slaves themselves yet they had been pretty considerable carriers of them to others.”
The constitution itself, the governing document seeking to “establish justice” and “secure the blessings of liberty”, is replete with compromises with white supremacists’ demands that the nascent nation codify the inferior status of Black people. The “Fugitive Slave Clause” – article IV, section 2, clause 3 of the constitution – made it illegal for anyone to interfere with slave owners who were tracking “drapetomaniacs” fleeing slavery.
And, of course, there was article I, section 2, clause 3, which contains the quintessential compromise on how to enumerate the country’s Black population, resulting in the decision to count individual human beings – the Black human beings – as three-fifths of a whole person.
The whites-first mindset about citizenship and immigration policy that still roils American politics to this day is not even really the result of compromise. It is in essence a complete capitulation to the concept that America is and should primarily be a white country. The 1790 Naturalization Act – one of the country’s very first laws – declared that to be a citizen one had to be a “free white person.” That belief was sufficiently uncontroversial that no compromise was necessary, and the provision was quickly adopted.
In a unanimous opinion in the 1922 Ozawa v United States case, the supreme court ruled firmly and unapologetically that US law restricted citizenship to white people because “the words ‘white person’ means a Caucasian”, and Ozawa “is clearly of a race which is not Caucasian, and therefore belongs entirely outside the zone” of citizenship. The racial restriction was official law until 1952, and standard practice until adoption of the 1965 Immigration and Nationality Act. This centuries-long, whites-first framework for immigration policy was most recently articulated by Donald John Trump – the man for whom 74 million Americans voted in 2020 – when he asked in 2018, “Why are we having all these people from shithole countries come here?”
The sweeping social programs of the New Deal were the result of compromises with Confederate congressmen working to preserve white power. In a Congress that prized seniority, many of the most senior and influential members came from the states that barred Black folks from voting. In his book When Affirmative Action Was White, Ira Katznelson breaks down how “the South used its legislative powers to transfer its priorities about race to Washington. Its leaders imposed them, with little resistance, on New Deal policies.”
Social Security is perhaps the signature policy of the New Deal era, but in deference to white Southerners, the program explicitly excluded farmworkers and domestic workers. As Katznelson explains, “These groups – constituting more than 60 percent of the black labor force in the 1930s and nearly 75 percent of those who were employed in the South – were excluded from the legislation that created modern unions, from laws that set minimum wages and regulated the hours of work, and from Social Security until the 1950s.”
Even the cornerstone of democracy – the right to vote – remains to this day the result of a creaky compromise with white nationalists. Most constitutional rights don’t require regular legislation to be renewed. There are no Freedom of Speech or Right to Privacy or Right to Bear Arms acts. We don’t revisit those fundamental rights every 10 or 20 years. When it comes to the fifteenth amendment, however, the right to vote has necessitated further legislation to guarantee enforcement, and the opposition has been so intractable and longstanding that the Voting Rights Act has to be regularly renewed by Congress, necessitating negotiation and compromise with those who fear the power-shifting implications of letting everyone of all races actually cast ballots.
Even after extracting a cavalcade of compromises over the centuries, Confederates have consistently demonstrated that they do not feel obligated to honor any agreements or democratic institutions if those agreements or institutions fail to adequately protect whiteness. From the civil war itself to the January 2021 insurrection, the white nationalist response to democratic defeat has been to attempt to destroy American institutions and shred our national agreements.
In contract law, a contract becomes null and void if one party did not enter into it in good faith, or if one party breaches the agreement and walks away from its mutual commitments. Given the clear bad faith and contempt for any allegiance to the common good, why do we have to cling to the old frameworks?
The answer is we don’t. We do not have to stifle our dreams and surrender our principles. We can now craft a new, fundamentally different social contract.
Steve Phillips is the founder of Democracy in Color and a Guardian US columnist. This is an extract from his latest book, How We Win the Civil War: Securing a Multiracial Democracy and Ending White Supremacy for Good (New Press, October 2022)
