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Behind ‘We the People,’ a ‘Racial Contract’ Written in Invisible Ink


This week on democracy-ish, Danielle and Toure welcome a special guest: The Atlantic staff writer Adam Serwer. He takes us to school on the philosophies that underpin racial divides in America.


  • Our society is governed by (mostly) agreed-upon laws. But underneath the statutes, argues Adam, is a ‘racial contract’ that suggests they don’t apply equally to everyone. It’s at the foundation of our republic itself.

  • Is the Trump administration’s pandemic response malicious, indifferent or just unconscious to its racial biases?

  • Has our country really changed much since the days of Dred Scott … or Jim Crow? Adam says we’ve only been a democracy –– on paper –– since 1965. (Then as now, it’s just democracy-ish for people of color.)


Trump changes his mind a lot, about a lot of things. But his mercurial response to the global pandemic has been especially infuriating.


First, he called it a hoax. Then he seemed to take it somewhat seriously. But soon afterward, he tweeted that “the cure cannot be worse than the problem,” and urged Americans to return to work and business as usual.

That final shift happened right around the time we started to realize that statistics show Black and Brown people are suffering and dying from COVID-19 at far greater rates than white people.


Coincidence? Of course not.


Toure and Danielle invited Adam to discuss his latest essay, which analyzes the historical forces that wrought both Ahmaud Arbery’s murder and the disproportionate impact of COVID-19 on Black and Brown communities.


“Adam's piece really nails that down in a more intelligent way than anything else I've seen,” says Touré.


Adam sees his work at The Atlantic as “an attempt to create a historical record of the precedents –– ideological, political and intellectual –– for Donald Trump.”


One of the things that struck him after Trump’s election, he adds, was how many people said, this isn't America. This isn't our country.


“I was like, no, actually, this is a part of us. This is a part of what we've always been. My responsibility is documenting these things as they're happening, as clearly as possible.”



Episode Highlights –– Repubs Don’t Care About Black People



The racial contract

At the root of racial inequality in America, Adam explains, is philosopher Charles Mills’ concept of the “racial contract.”


We live in a society governed by laws –– a set of explicit, written-down rules. But underneath those rules, he says in his Atlantic essay, is “a codicil rendered in invisible ink, one stating that the rules as written do not apply to nonwhite people in the same way.”


Consider the Declaration of Independence itself: “All men are created equal has been interpreted by subsequent generations to mean “man” as humanity –– all people are created equal,” says Adam.


“But at the time … it really meant white men with property. That's an example of something that is superficially universal, but actually has a tacit underlying racial meaning”.



The white privilege of ‘stand your ground’ and police brutality

We see the racial contract in modern society all the time. Take "stand your ground" laws. Statistically, white people are much more likely to use those laws to successfully claim self-defense if they've killed a Black person. The racial contract was at work when Cleveland police shot Tamir Rice on sight, even though he was a 12-year-old with a toy gun.


“But you can have a semi-automatic rifle on your back and walk into a state legislature, quote-unquote protesting,” Adam adds.


“The terms of the racial contract are pretty much there for everyone to see. But it exists almost unspoken and unacknowledged. Because that's the only way you can have a society where everybody is supposed to be equal –– but everybody knows that certain people are not, and they treat certain people differently, based on who they are.”



Trump isn’t the only white supremacist in the West Wing

Was there a conscious shift in the White House when statistics began to emerge from hotspots like New York and Detroit –– telling us that COVID-19 is hitting Black and Brown citizens hardest?


Toure asks Adam: “Do you envision Stephen Miller running down the hall with a piece of paper, like, boss, send us back to work, because it's just the Negroes who are dying. We're okay!?


Adam thinks Miller has “obviously been shaped by white supremacist ideology.”


That's been apparent for a while, he adds, particularly in light of the leaked emails he exchanged with Breitbart in the run-up to the 2016 election. Southern Poverty Law Center’s Hatewatch reviewed more than 900 of Miller’s emails and published a damning expose.


But the racial contract isn’t always so conspicuous.


“It doesn't need you to think about it to work,” says Adam.



Unconscious bias is way ingrained

The Trump administration might not be making an explicit decision about the racial inequality of its pandemic response.


“When issues become racialized, people act in that way, even if they don't consciously think about it,” he adds.


In Wisconsin, the state Supreme Court recently heard a case over the legality of the governor's stay at home order. When the state's attorney brought up an outbreak in Brown County, which is home to a meatpacking plant, the Chief Justice interrupted him:


“Due to the meatpacking, though, that’s where Brown County got the flare,” she said. “It wasn’t just the regular folks in Brown County.”


Maybe she simply meant that meatpacking workers have a high-risk job, and not that they aren’t “regular folks.”


“Oh, she meant it,” says Danielle.


“But either way, she's separating out these people who are at high risk of contracting the disease and saying they don't really count for the purposes of this law that is supposed to protect everybody,” Adam points out.


“That reflects a particular calculus that says [because] this emergency is only affecting certain people … it doesn't really require the extraordinary measures we're taking in order to combat the spread of the virus — particularly since it's inconveniencing me, a regular person who is not at risk in the same way,” he notes.


“I don't think that there's necessarily conscious malice involved.”



The Trump administration on COVID-19: ‘Malice or indifference’?

Danielle sees a throughline between today’s anti-lockdown protests and Dred Scott v. Sandford, the 1857 case in which the U.S. Supreme Court decided that people of African descent (both free and enslaved) were not citizens –– and never could be.


“That presumption has been ingrained in our culture,” she says, adding that the insistence of white protestors on their right to rally with zero concern for social distancing or respect for authority, “seems to be about the right to oppress.”


Danielle wonders what the Trump administration would do if their base was suffering from COVID-19 in the same numbers as “blue states.” She finds it troubling when we don't call out the intentional malice.


“I recently have gone after several cable news anchors for insinuating that the Trump administration isn’t evil –– it's just that the policies it puts forth don’t benefit all people.”


That kind of forced neutrality strains credulity. “Words are important and they matter,” she says.


“It almost doesn't matter whether it's malice or indifference,” Adam notes. “The devastation is the same.”



‘Racial citizenship’ is older than America itself

The idea of racial citizenship crystallized in the Dred Scott case predates the republic, says Adam.


“Even during the Revolutionary War, people in the north were looking at these principles of liberty and they're also saying slavery is wrong … other people were making the point that American colonists were slaves to Great Britain, but ... African slavery, that's okay.


“At that point, we had to come up with a framework for why Britain enslaving the colonists is bad, but the colonists enslaving Black people is good. In that, we had the birth of the idea of racial citizenship, which is completely antithetical to the word of the American creed, but inseparable from the way it has actually been executed.”


Adam argues that the United States has really only been “a full democracy –– on paper –– since 1965. That’s the first time the right to vote is guaranteed on paper. And I emphasize on paper because there are lots of different ways to disenfranchise people.”


Our attempt to build a genuine, multiracial republic is a project that’s “actually pretty fragile,” he adds. “It's not as old as people think it is. And it's vulnerable ... to the kinds of forces that we see being empowered right now.”



‘Negative partisanship’ and acceptable risk

Touré thinks the red-blue pandemic divide is exacerbated by a “relatively modern right-wing GOP obsession: Everything the media says is wrong and everything that the left says is wrong.


“The media and the left are saying [the outbreak] is very serious … [the right] is stuck in a position of, nope, it's not a big deal ... They're the tough guys who say, go back to work. Doesn't matter if some people die. It's incredibly corrosive.”


Adam explains that political scientists have a term for what Touré describes: negative partisanship.


“It’s a genuine problem,” he says –– and you can’t separate race from the conversation.


When we talk about admitting Syrian refugees, or stop and frisk policies, or immigration at the Southern border, “there's always this sense that any level of risk is unacceptable,” he says.

“If we have to waterboard people … never let it in another refugee again, if every Black man in New York has to get stopped and frisked in his own neighborhood, then that is an acceptable risk [for those who believe their] freedoms are inviolable, even in times of pandemic. Even in times when it's a minor inconvenience. Even when it's an optional civic obligation thing, like wearing a mask.”



‘America is a handshake deal’

The racial construct is pernicious and nonpartisan. It says “your freedoms are not as inviolable as my freedoms,” Adam says.


“It’s not liberal or conservative. It’s the foundational conversation of American history, unfortunately. And it's one that I think everybody sort of instinctively understood ––-or at least people of color instinctively understood –– that the pandemic was not going to alter that dynamic.”


Danielle has been arguing for weeks that “one of the biggest misnomers about this pandemic was the idea, initially, that it would be ‘the great equalizer.’ That was akin to saying that the election of Barack Obama would make America ‘post-racial.’ All of it was steeped in bullshit.”


Trump, his administration and the Republicans have gutted the American ideals –– “everything I thought was ingrained … our values and our morals and our compassion and this dream that everybody has the opportunity to get,” she says. “I didn't realize it was just a handshake deal.”


This pandemic requires us to have “a level of compassion that I don't believe that white people in America have ever had,” she adds. “Everything is foundational to the selfishness that I believe is inherent in white folks … You should do for me, you should build for me. Breaking your body down for the building of this country, and this economy, is useful … and when you are not of use, you are expendable.”



Glimmers of hope in the resistance

It’s easy to look at Donald Trump and think things are as bad as they've ever been, says Adam. But in 1876 –– at the end of Reconstruction, our first, early experiment with multiracial democracy –– there weren’t as many white people protesting its end as there are white voters today who are extremely resistant to Trump.


“It's easy to get pessimistic, but in some ways white Americans today are more racially progressive than they've ever been in history … That doesn't mean that this idea of racial citizenship … isn’t obviously shaping our politics. But I don't want people to get the impression that these things are immovable. I think they've moved quite a bit.”


Danielle agrees that a lot has changed. But Ahmaud Arbery’s murder suggests there are plenty of people who believe their whiteness provides some kind of immunity.


“We are still living in a world where someone can make that assumption,” Adam argues. “On the other hand, it is not a safe assumption.”



Pray about it –– for real

Adam is working on two books right now. One is a history of the Black vote since emancipation. The other is an essay collection called "The Cruelty Is the Point," –– the title of his seminal 2018 Atlantic essay. Danielle and Touré already want to book him again to discuss that one.


Meanwhile, democracy-ish will continue to unpack the cruelty –– and the idiocy –– as it unfolds.


“Continue to pray, folks,” says Danielle. “Literally, seriously. I don't care if you're an atheist. Just pray.”


Touré concurs: “Pray to the gods of democracy.”


“Yeah, I don't know who they are,” Danielle replies.



Get your weekly rundown of the presidential election from a Black progressive point of view on democracy-ish. Consider Danielle Moodie and Toure as your tour guides, flight attendants and/or therapists as we move through this dumpster fire of an election cycle — together!



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