Enjoyed By White Citizens

Abstract

Whiteness is largely invisible in American law. The United States Constitution never mentions white people. Indeed, the entirety of constitutional and statutory law, at both the federal and state level, includes only two antidiscrimination statutes that refer explicitly to white people. These Reconstruction-era statutes—42 U.S.C § 1981 and § 1982—declare that all people shall have the “same right” regarding contracts and property as “enjoyed by white citizens.”

This Article argues that the unique visibility of whiteness in § 1981 and § 1982 presents an opportunity. The plain language of these statutes exposes whiteness and requires explicit analysis of the contract and property rights that white people enjoy. To remain faithful to the statutory text, courts must consider why white people serve as a statutory benchmark in the first place—a task that forces a reckoning with America’s long history of white supremacy. Further, courts must examine the nature of the contract and property rights that white people “enjoy”—a task that requires them to examine how these rights affirmatively provide pleasure and satisfaction.

The contract and property rights enjoyed by white and non-white people remain profoundly unequal, but § 1981 and § 1982 offer a powerful tool for reform. The two statutes provide not only an important avenue for litigation, but also a valuable model for legislation and a catalyst for public discourse that openly examines whiteness and the benefits it confers.

Keywords: constitution, civil rights, reconstruction, statutory interpretation, contract, property, enjoyment, race, whiteness, civil rights act of 1866