“De nigger woman is de mule uh de world so fur as Ah can see.” – Zora Neale Hurston, Their Eyes Were Watching God

In American politics the Black woman voter is both mule and canary. Black women vote at higher rates than most demographics, and overwhelmingly and consistently vote for  Democratic candidates—not because there is anything to gain but because doing so is necessary for the survival of the republic. Yet, two years after commentators declared 2018 to be the year Black women saved the Democratic party, Black women still enjoy very little negotiating power at the polls. Thus, while Black women voters carry the burden of saving the world, their diminished negotiating power signals the end of democracy and the slow creep towards fascism, and continues to remain an afterthought to the powers that be.

The Constitution is a legally binding social contract, bargained for by slaveholding white men, that constructs legal personhood and citizenship in a manner that supports exploitation and extraction—with those raced as white deemed human, political, citizen, shareholder, proprietor, and contractor; and those raced as Black and Indigenous deemed subordinate, subhuman, apolitical, permanent stranger, trespasser, rent-seeker, and the object of the contract. The Black woman serves as both mule and canary—Black women voters consistently fight to keep the party that is least harmful to the republic in power, while signaling to all citizens when a decision is a matter of life or death. The right to vote—literally defined as franchise—is proprietorship, and the Black vote is consistently challenged and suppressed by some at the same time that it is exploited and feted by others. It is simultaneously a breach of the Constitution and its Amendments because full representation of the Black vote was never intended to come to fruition. Its partial performance renders it white capital, which exploits the Black female labor and capital upon which the future of the republic depends.

The Constitution is a public representation of private ordering. White men, in their capacity as full political persons, designed this social contract to delineate the powers the state would have over them in exchange for preservation of a democratic rule of law and protection of capitalism. The amendments to the social contract are designed to protect them from their creation—the state. The state, in turn, designs laws that create and regulate the engines of commerce, continually redefining who is a party to, as opposed to an object of, the contract.

Black people were not parties to the initial social contract that is our Constitution. Instead, they were 3/5ths persons, 2/5ths property, and 100% the personal property of their masters. The Reconstruction Amendments represent a renegotiation of this contract, removing the 3/5ths status in writing and, with the consideration of a war that nearly destroyed the nation, empowering Black Americans with full citizenship rights. Contracts are interpreted first by the four corners of the document, but performance can reform the meaning of the words on the page. As performed, the Constitution and its Reconstruction Amendments have never lived up to the bargain for Black women citizens and voters. Instead, the nation continues to subject Black women to extreme duress that renders them without power and without choice. This lack of capacity makes the Black woman’s vote a property right for the parties to acquire, instead of a contractual right for the women to exercise.

This election cycle is a perfect example. After much lobbying by Black politicians, pundits, and kingmakers, Democratic nominee and former Vice President Joe Biden did indeed select a Black woman as a running mate—but had he not done so, eligible Black voters, particularly Black women, would have felt pressure to vote for him in November just the same. The power of the Black vote as a negotiating tool is significantly diminished in 2020 because the threats posed by the Trump Administration to Black life, liberty, and property are so palpable that Democrats have little incentive to bargain with Black Americans for their votes.

Indeed, the Democratic Party has long exploited the value of nonwhiteness, boasting of the diversity of the Party compared to the overwhelming whiteness of the Republicans. However, this diversity does not translate into meaningful expansions of Black capital, freedom, or power for everyday Black Americans. Rather, outside of the election of Black candidates to public office, the value of the Democratic Black vote has always accrued to a white-dominated, white-led political structure and a liberal white body politic. The labor of Black women voters is relied upon to drive this agenda from the shadows, even as their interests are disregarded and their stereotypical beliefs are used as bargaining chips to signal the unifying message needed to appease white moderate voters—the Black woman is simultaneously a welfare queen, the single and inattentive mother, and the loyal and magical savior of not only the party, but the republic. This is not a failure of democratic progress or its process, but rather the evidence of a contract performing according to its terms.

Thus, the Black woman voter, operating rationally, not passionately, and with full awareness of the consequences of her actions, has no choice but to continue to allow her vote to be a commodity of the Democratic Party, rather than a representation of a constitutionally guaranteed choice. Former-Vice President Biden need only promise an end to the threats to Black life and livelihoods meted out daily by the Trump Administration to maintain the Black female vote.

The Republican Party has sought to appeal to Black voters in 2020, pointing to Democratic complacency concerning the Black vote and mocking the Democrats’ failure to meet Black Americans’ political, economic, and social needs—even though Republican politics and policies consistently deny Black personhood, citizenship, and stake-holding in American society through structural, political, and physical violence. Despite President Trump’s desire for Black electoral support, the Republican Party views the act of Black people voting as a threat to their power. In July 2020, a Mississippi state elections commissioner, Gail Welch, revealed on Facebook that she was “concerned about voter registration in Mississippi . . . . The blacks are having lots [of] events for voter registration. People in Mississippi have to get involved, too.” Her commentary was a candid, full-throated articulation of what the Constitution and Reconstruction Amendments signal in how they have been performed—that Black gain (of franchise and political capital, in this case) is white loss. Welch also revealed that in the invisible, extralegal social order there are “the Blacks,” who are not to be confused with “people.”

This life-or-death binary choice—between voting for Former-Vice President Biden or President Trump and the party that differentiates “Blacks” from “people”—prevents Black women voters from engaging in valid negotiations through the exercise of their right to vote. Such bargaining would require contracting capacity that the United States has withheld from its Black citizens, both structurally and through persistent acts of terror that approach genocide. The Black woman voter negotiates under duress, and a contract entered into under duress is no contract at all. Instead, Black voters, Black women voters, and more pointedly, their votes, are being bargained for as property by major political parties.

Black votes are capital, owned by the political parties. Black voting is largely uncompensated labor, and Black women voters, with their loyalty and rationality, are the mules who carry the burden of ensuring that our social contract—the Constitution—is as revolutionary in action as it is in its words. While they are not parties to the contract, they bear the weight of the performance of its terms on their backs.

Analyzing the vote through the prism of private ordering is helpful at a time when rights do not easily correspond to remedies. The depths of the abuses endured by Black people take on new conspicuousness and dimension when viewed not just as a violation of rights, but as material extraction and exploitation. In the United States, no existing political party has given greater priority to Black lives than to the value of Black votes. Until Black people achieve full personhood in the United States—that is to say, until Black voters become people—Black voting will be exploited labor, and Black votes will remain white property.

Carliss Chatman is an Associate Professor at Washington and Lee University School of Law. Her scholarship focuses on corporate governance, personhood, and ethics. 

Marissa Jackson Sow is a Leadership in Government Fellow with the Open Society Foundations and a Fellow with the Office of the United Nations High Commissioner for Human Rights. Her scholarship focuses on human rights, comparative law, and personhood.