No Humans Involved: US Constitutionalism and the Permanence of Racism

What, then, is “the view from the bridge”? The outlook is grim. For the black people of the world there is no bright tomorrow. The Blacks may continue to live in their dream of singing, dancing, marching, praying and hoping, because of the deluding signs of what looks like victories, still trusting in the ultimate justice of the white man: but a thousand years hence their descendants will be substantially where the race was a thousand years before. For the white people, still masters of the world, do not have to yield. They have never changed their real attitude toward black people during all the passing centuries, and there is absolutely nothing upon which to base the belief that they will change in the centuries to come (Chanceller Williams in The Destruction of Black Civilization,1971).

This year marks the 250^th anniversary of the founding of the United Snakes of America as a white settler colony rooted in white settler colonialism and chattel slavery. In the last few weeks, the Supreme Court has decided to gut the birthright citizenship and voting rights of black Americans. How should we account for this coincidence? One of the fundamental advantages of historical sociology is that it aids us to trace the origins of contemporary issues plaquing a society to its foundation and the people who created it. This is not crude historicism but an attempt at appreciating the significance of historical imagination in relation to the sociological imagination. The fundamental point of departure is that the rationale and the people behind the establishment of institutions have a very impactful leverage on their development.

This essay provides a critical jurisprudential analysis of the US and its constitution in relation to people of African descent. The underlying argument is that the US was created through white settler colonialism and chattel slavery which seek to negate the humanity of enslaved Africans and their attendant legal subjecthood. As property they could only be legal objects while whites are legal subjects because of the whiteness of humanity in the eyes and minds of whites. This originary ontological void due to the anti-black violence of chattel slavery continues to haunt the ostensible legal subjecthood of black Americans as descendants of enslaved Africans. It is this originary ontological inferiority that undergirds the fragility of their rights. The US is an inherently white supremacist society and that all its other institutions such as constitutions are permeated with white supremacy. In other words, within the US as a white settler colony rooted in land dispossession and chattel slavery racism against blacks and Indigenous people is permanent. The doctrine of white supremacy is the foundational principle of social organization. Because of this racism is permanent but manifests itself in different ways depending on the dominant expression of white supremacy. With Liberal white democrats and Leftists, racism is covert while with white Republicans it is overt. Both the North and the South are rooted in white supremacy. The central premise is that racism is a mode of existence with different modes of expression. This essay attempts to account for the consistent and constant erosion of the rights of black Americans by white settlers in the US since its foundation in 1776. The pendulum swinging between the granting of rights and their negation is the long-standing drama of the relationship between people of African descent and US law. Why is this the case?

At the core of the doctrine of white supremacy is the ontological hierarchy epitomized by the idea of the Great Chain Being. In terms of this white mythology all people of African descent are not human, thus are categorized and treated as inferior beings (not human) and property (no legal subjecthood). The self-appointed Aryan race occupies the tip of the ontological pyramid while African people are confined to its base. The other infamous aspect of the doctrine is the curse of Ham. According to this anti-black racial fiction God cursed Ham for watching Noah’s naked body, thus all African people who are categorized as his descendants ‘inherited’ this curse. The doctrine of white supremacy was created by the ‘best’ philosophical minds of Western civilization and culture. White philosophers such as Hume, Kant and Hegel regarded people of African descent as devoid of reason thus not human. Thus, the color of reason became white. This is how humanity was arrogated to people who categorize themselves as white. The negation of the humanity of people of African descent eventuated in the evisceration of their legal subjecthood. The color of law also became white due to the whiteness of the figure of the human based on white reason. This is because the category of the human is the foundation of the abstract legal subject of Western law. The paucity of ontological density generates a negation of legal subjectivity. It is in this sense that at the core of the making of the US is the question regarding the humanity and legal status of people of African descent. The history of the US from 1776 to 2026 is rooted in the fundamental question of the humanity and legal status of African people. There are several ways to interpret the genealogy of the US. But all different dates such as 1619 which marks the landing of the first group of enslaved Africans or 1776 that is regarded as the founding of the US by white settlers who rebelled against the British Empire are imbricated with the central question of the humanity and legal status of African people. This essay is divided into two sections that discuss the inextricable connection between the doctrine of white supremacy and the US legal system in relation to people of African descent. It is informed by the black radical thought of Sylvia Wynter and Critical race theory as formulated by the black legal philosopher Derick Bell. At the core of this essay is the negative moment in the sense of the idea that within the US racism is permanent and the positive moment that is rooted in the black radical tradition. According to Cedric Robinson the fundamental objective of the black radical tradition is the negation of the inherently racist Western civilization and culture. The US is an epitome of this innately racist Western civilization and culture outside Europe. It is in this sense that this essay is informed by Bell’s permanence of racism thesis and the black radical tradition’s idea succinctly immortalized by Huey Newton and Stokely Carmichael. According to Newton America must die for the world to live. Carmichael complemented this black radical thought by stating that the fundamental objective of black studies in the destruction of America.

Chattel Slavery and the White Supremacy of Jurisprudence

“For slavery was recognized in the organic structure of the Constitution” (Richard Hofstadter in The American Political Tradition And The Men Who Made It, 1989).

At the core of jurisprudence is the whiteness of legal subjecthood. Jurisprudence is rooted in the racist Western philosophical tradition that became predominant during the Enlightenment era. While the white man as the prototypical legal subject can be traced to the ontological intervention by Rene Descartes, its genealogy goes back to Aristotle. The Greek philosopher famously postulated that ‘man is a rational animal’. Thus, rationality was established as the quintessential trait of humanity. As we know in terms of the history of Greek civilization Aristotle excluded slaves and women from the formulation of man as a rational animal. The idea and practice of citizenship was premised on the backs of slaves and women who were excluded from both humanity and citizenship. It is in this sense that ontological density determines legal subjecthood. Because slaves and women were not regarded as man (human), they could not be citizens (legal category). The male supremacy of Greek men permeated the core of the Greek legal system and its everyday practices and social relations. This marks the origin of the idea of citizenship as a category and status that is parasitic on exclusion and slavery within Western civilization and culture. Athenian democracy was founded on this parasitical relation between citizenship and slavery. The ideas of freedom and citizenship are not just abstract universal categories but are actualized in history through violence and exclusion. Because Western civilization and culture trace their origins to Greek civilization and culture it is not surprising that the US is replicating this logic of man and citizenship (ontology and law) that are anchored in slavery and exclusion.

Rene Descartes is regarded as one of the founding fathers of modern Western philosophy foundational to Western civilization and culture. He is credited for having established the ontological postulation “I think therefore I am”. This is said by many Eurocentric philosophers to mark the commencement of the transcendental subject in Western thought. The Cartesian cogito is rooted in its exclusion of exteriority (the body and nature). This is the mark of its transcendence. But a violent one through wresting itself from the whole of reality to assume autonomy and domination. Of course, the Cartesian cogito that establishes the ‘transcendental I’ as self-consciousness in Western philosophy is imbricated with whiteness and maleness. Thus, the phenomenology of the ‘transcendental I’ at the core of legal subjecthood entails the centering of the white man. This is a brief archaeology of ‘the overrepresentation of Man as the human’ that Sylvia Wynter underscores in her work. At the same time as the Cartesian cogito was being formulated the ‘journeys of discovery’ were in full force to establish the so-called New World. This is how the Cartesian cogito is central to the horrible date of 1492.The ‘journeys of discovery’ were initiated by Catholic popes (white men) through papal bulls. Papal bulls such as Romanus Pontifex of 1455 were documents with legal effect that authorized the enslavement and conquest of African people and Indigenous people.

The doctrine of discovery as a principle of international law was established by white men (Catholic popes and white judges) to bless and legalize land dispossession and chattel slavery. It is in this sense that the Cartesian cogito is complicit in the global system of white supremacy. The actual or political manifestation of “I think therefore, I am” is “I conquer therefore, I am”. Columbus was merely actualizing the Western philosophical tradition of the best minds of the then emerging Western civilization as a self-conscious entity in world history. The fundamental condition of the self-conscious I as a transcendental subject is the positing of the other. In the history of the ‘journeys of discovery’ (white man’s criminal enterprises) the other is not just an abstract category such as nature or the body but people of African descent and Indigenous people. The Cartesian cogito is the scientific mind behind the abundant literature of scientific racism. It is the Cartesian cogito that invents racial categories such as the Caucasian and Negro. This is because the Cartesian cogito is the organon that can classify the world to control it. This transcendental subject creates a classificatory system to measure and control exteriority in this case nature and the racialized other. The Cartesian cogito was reformulated by Kant as part of the Enlightenment tradition. The Kantian transcendental I created categories such as the Negro with a thick skin (feeling less pain). This is how the Critique of Pure Reason is foundational to Kant’s Physical Anthropology in which he formulates the racist idea of the Negro as racially different from the white man. Hegel then decided to historize and actualize the Kantian transcendental I by reformulating it as Spirit (white). The Spirit is the core subject of world history. According to Hegel in his Lectures on the Philosophy of World History, Africa is not part of world history and that slavery enlightens African people. The progress of African people is rooted in their enslavement by whites. Thus, the universal categories of law and freedom do not apply to African people. Africans become animals without reason. This is the racialization of the Aristotelian idea of man as a rational animal. The ‘irrational animal’ becomes property under chattel slavery.

What does all this history of philosophy and philosophy of history have to do with African people and US constitutionalism? Well, fundamental to the founding of the US is the case of Somerset and Stewart of 1772. In this case an enslaved African, James Somerset was transported from a white settler colony called Virginia to England. In this case judge Lord Mansfield ruled that Somerset should be freed and his status as property annulled by common law. White settlers in the thirteen colonies rejected the idea of the common law freeing an enslaved African. For them, Somerset was just an animal without reason to be owned and sold. White settlers just like their founding fathers and framers of the US constitution were slave masters and landowners. It is in this sense that white settler colonialism characterized by land dispossession and chattel slavery are foundational to the establishment of the US as a society rooted in white supremacy. When England decided to ‘abolish’ slavery in the colonies that later constituted the US, the white supremacist rebels waged a counterrevolutionary war to reinforce chattel slavery and white settler colonialism. This is one of the main points Gerald Horne advances in his seminal text titled The Counter-Revolution of 1776. It is important to note that enslaved Africans and Indigenous people have been waging a revolution to prevent the establishment of the US. Thus, at the core of the 1776 moment is the dialectic between the revolution by Indigenous people and enslaved Africans to negate the creation of the US premised on land dispossession and chattel slavery and the counterrevolution of the white supremacist white settlers to establish the US as we know it. The Indigenous people have been waging a revolution against white settler colonialism since its inception in 1492. The enslaved Africans in relation to the US have been waging a revolution against the founding of the US centuries before 1776. The black radical tradition is a resistance tradition that was created by the enslaved Africans to revolt against chattel slavery and the existence of the US. Some enslaved Africans even joined the British army to fight against the establishment of the US. Thus, Newton and Carmichael were drawing from a long-standing revolutionary heritage of the black radical tradition when they called for the destruction of America as the only way blacks in America can be liberated from white supremacy.

The significance of 1619 lies in the fact that it registers the historical moment before the founding of the US when African people were categorized as not human like whites and reduced to property. The importance of 1776 on the other hand for white settlers lies in the fact that the founding of the US was rooted in the violent rejection of their property being elevated to the status of the human with abstract liberal rights such as freedom and equality as whites (like the case of Somerset). It is in this sense that the condition of possibility for the founding of the US is African people being categorized and treated as slaves. The immense antiblack violence of the middle-passage central to the transatlantic ‘slave trade’ was regarded by the founding fathers and framers of the US and its constitution as having stripped African people of their humanity. The middle-passage merely actualized and historized the Enlightenment’s racist idea that blacks are not human. Western philosophers created the racist ideas that all whites applied in history. Hegel and Columbus are good bedfellows. For white settlers the enslaved Africans lacked ontological density in their eyes thus incapable of acquiring universal rights such as liberty and equality. For the white supremacist white settlers Somerset as an enslaved African is not the legal subject of the English common law. And this is how African people like him became property in terms of the US constitution. The only legitimate legal subject of the common law was a white man. All enslaved Africans including Somerset were objects of common law while white men were the subjects of the same law. This is the ontological dialectic of white supremacy at the core of US jurisprudence to this day. This is one of the central reasons why chattel slavery is organic to the structure of the US constitution. The first founding of the US was based on the legalization of the ontological violation of the enslaved Africans. This ontological violation is the condition of possibility for the vitiation of their rights. The only way white freedom could be enjoyed by the founding fathers and their fellow white settlers was by owning the enslaved Africans and the land of the Indigenous people. In other words, white settlers were free legal subjects because Africans and Indigenous people were not (enslaved and conquered).

The conceptual coherence of ontological whiteness and white legal subjecthood is premised on the violent negation of the ontological density of the enslaved Africans and their reduction to legal objects in terms of white law. This ontological and legal antagonism is central to the founding of the US. This antagonism cannot be reconciled without at the same time dissolving the US as we know it. In other words, for the sustenance of the US as a stable and coherent entity whites must be superior human beings with legal subjecthood while Africans must be inferior beings without real legal subjecthood. The US is after all not a democracy based on liberty, but a white settler colony based on the intersection of liberty and property. This property is of course the land of the Indigenous people and the bodies of the enslaved Africans. It is important to note that at the core of the founding of the US is the historical process of settler colonialism as a global project of white supremacy.

White settler colonialism was rooted in the idea of solving the imminent civil wars in Europe due to the privatization of the commons through the enclosures. The reduction of many Europeans to stark penury impelled them to leave Europe. Thus, the historical process of the displacement of poor Europeans to avoid civil wars and their dispersal to colonies is central to formation of the US. The resolution of European problems is parasitic on the enslavement of Africans and the dispossession of the land of the Indigenous people. This historical material reality is foundational to the psyche of whites in settler colonies such as the US. Whites always deem it logical to solve their problems at the expense of black Americans and Indigenous people. Quotidian instances of white privilege and sense of entitlement are indicative of this libidinal economy undergirding the political economy of the US as a white settler colony. The foundation of the US is rooted in this logic of white supremacy in the sense of advancing the interests of whites to the detriment of those who were historically owned as property and those whose land was dispossessed from them. The ancestors of black Americans enter the US as not human but property of whites. This originary ontological void still haunts all black Americans. This is the specter of a wounded ontological position. The gutting of their civil rights in different times in the history of the US is based on this foundational logic of white supremacy. Only whites are human and they can be human because blacks are not. Whites are also human because they are not black. It is in this sense that this political ontology of white supremacy permeates the US legal system. In other words, what is fundamental is not the legal rights of black Americans but their lack of ontological density in the eyes of all whites and their anti-black nonwhites. It is this originary ontological abyss that engulfs all rights that they are endowed with by white settlers in the US. Whiteness is what endows settlers with ontological density that buttresses their legal subjecthood.

It is important to note that the fundamental problem is not whether or not black Americans are human but that in the eyes and minds of white settlers they should never be human. Thus, even if they are not owned as property like their ancestors they are still not regarded and treated as human. This is because the figure of the human is white and its conceptual coherence and entitlements depend on violating its opposite. This is the violent materiality of parasitic semiotics. This is why all economic and legal accoutrements such as wealth and voting rights can never negate the originary ontological void. For instance, the Harvard black professor Henry Louis Gates was categorized as not owning property in the form of his house by white neighbors. They called the police (usually other whites) to arrest him. In terms of the logic of white supremacy the violation of blackness serves as way to bond whites across class. This is the core of white settler colonialism. All whites could own property in the form of the bodies of enslaved Africans and indigenous land. The violation of Indigenous people through land dispossession and genocide helped to bond all white settlers across class. Whites knew that they can never be like blacks because they could own them as property and that they are not Indigenous people because they conquered them and dispossessed them of their land. It is important to comprehend the historical reality of settler colonialism and chattel slavery as the foundation for the coherence of abstract ideas such as whiteness, humanity, freedom, equality and citizenship. It is this historical reality that accounts for their objective impact as opposed to their ‘inherent’ meaning. It is in this sense that the founding fathers of the US could postulate the universality and innate nature of abstract rights while owning both the enslaved Africans and the land of the conquered Indigenous people. Indigenous people understood this when they stated that whites speak with a forked tongue. Conquest and slavery are the condition of possibility for the formulation and actualization of these ‘abstract universal rights’. This is why Jefferson did not find it odd to promote these rights while owning enslaved Africans and the land of the Indigenous people. He was probably watching this property while thinking and writing about these rights. For instance, think about the relationship between Sally Hemmings and The Notes on the State of Virginia…

The Jurisprudence of White Supremacy and the Afterlife of Slavery

“African Americans have no rights which the white man is bound to respect” Chief Justice Taney in Dred Scott vs Sanford, 1857).

We have thus far established the philosophical foundation of the whiteness of the idea and figure of the human rooted in reason. The central objective of this is to account for the whiteness of the legal subjecthood of Western law. This genealogy of the whiteness of Western law is rooted in material reality in the sense of the history of settler colonialism and chattel slavery. The founding fathers and framers of the US constitution were informed by this long tradition of the whiteness of Western law. For instance, the liberal white philosopher John Locke contributed to the writing of the constitution of Carolina. Locke’s writings also influenced the framing of the US constitution. This is the actualization of the abstract ideas of the Enlightenment tradition through settler colonialism and chattel slavery. Western law is not just philosophically white in the sense of the ontological whiteness of the legal subject but politically in the sense of how this law is weaponized to advance the collective interests of all people categorized and treated as white. The so-called journeys of discovery epitomized by Columbus were based on the doctrine of discovery, a principle of international law still operative today in white settler colonies. This doctrine justified the conquest and enslavement of people outside Europe. Thus, people who were not classified as white by the white man, as a rational being (Cartesian cogito/transcendental I) were regarded as outside the parameters of Western law. In other words, they occupied the Hobbesian ‘state of nature’ in which the law of the civilized white man did not apply. This accounts for the savagery of whites when waging wars against Indigenous people and people of African descent. Thus, as Sylvia Wynter famously stated in her letter, no humans involved. It is in this sense that this white law was weaponized against them. Only the white man had the law as a rational being while they had customs as primitive beings devoid of humanity. White law protected white life by externalizing internal white violence to Indigenous people and African people through conquest and enslavement.

In the case of the US legal epistemic violence against people of African descent has taken two interwoven forms. The first is the violence of exclusion while the second is the violence of ostensible inclusion. When African people were kidnapped in Africa, they were regarded as primitive thus, in a state of nature. As already stated, Hegel argued, Africa is not part of world history and that the Negro spirit is stagnant. When the white men spearheaded the industry of kidnapping and reducing captured people of African descent to commodities in terms of the racist logic of racial capitalism, the law of civilization (whiteness) was suspended. It is in this sense that the African people’s originary encounter with white law was one of violent exclusion. They were confined to the permanent zone of nonbeing and interminable state of exception. They were not human; thus, the law did not apply to them. The white men as the ‘the lords of all the world’ exercised the right to suspend the law of civilized people (whites) in relation to uncivilized people (Africans according to whites). But once they were violently inserted into the registers of racial capitalism as commodities they were subjected to white law. But their subjection reduced them to objects of the white law. As captive bodies or flesh they were reduced to the property of whites (both white men and women) thus subjected to the white law of property and law of contract. The racist law of profit rooted in racial capitalism reduced them to units in the bills of sale. This is the violence of inclusion into white law (the law of things but not the law of persons). This is how the historical condition of being enslaved was formalized into an ontological and legal status. This is the structural position of the enslaved Africans at the first founding of the US in 1776. It is important to note that in line with the black radical tradition, this essay does not conflate the historical accident and condition of slavery with the ontological nature of people of African descent. In other words, African people were enslaved but are not slaves.

This accounts for the reason why the structural position did not strip them of their revolutionary agency. It is in this sense that they became a ‘troublesome property’. As ‘person-property’ for other humans (whites) they fought against the first founding of the US. It is this troublesome property that undermined the coming into being of the same US that hates them and wants to deport them to this day. For this ‘person-property’ the first founding of the US was not a great leap forward for humanity. Their revolutionary record in the form of the black radical tradition demonstrates the historical fact that the founding and existence of the US was not inevitable and is not necessary. White Reconstruction as a white supremacist project to affirm and reinforce the continuity of Western civilization and culture rooted in innate racism was created to lay the foundation for the existence of the US. White settlers embarked on the process of White Reconstruction to suppress the black radical tradition in the form of slave revolts in order to launch the first founding of the US. Because of their political history of rebellion and revolution the enslaved Africans enter the US constitution during its first founding as property thus not human.

The founding fathers and framers of the constitution included the enslaved Africans as property but excluded them as not human. This is the violence of legal exclusion and inclusion at the core of white law. White Reconstruction as an ongoing process of the consolidation of white settler colonialism framed the enslaved Africans as property devoid of legal subjecthood thus citizenship. The idea and practice of citizenship was confined to ‘free white persons’ during the first founding of the US. At the core of this white freedom is the ownership of property. This is how Africanness and blackness negated citizenship to this day. According to Locke self-possession is foundational to liberal humanity and the ability to own property. Only whites could own themselves because they could own others. This is how whiteness becomes property. What is the intersection between property, citizenship and the US constitution? It is important to note that this essay is also influenced by the black nationalist tradition of Martin Delany who was skeptical of the ability of white settlers to accept blacks as fellow human beings and citizens. It is in this sense that it rejects the black assimilationist tradition of Fredrick Douglass who embraced the US constitution as ‘a glorious liberty document’. While the white settler abolitionist William Garrison was correct in claiming that the US constitution is a ‘covenant with death’ we reject his tactic of moral persuasion as futile and absurd. White supremacy and racism are not based on ignorance and moral mistakes but are premised on collective self-interest, power, selfishness of survival and prosperity of the people who categorize and treat themselves as white. All these elements of white supremacy and racism are legalized through constitution-making. While there are several ways to interpret constitutions, this essay will focus on two dominant forms within the context of the US.

In terms of Originalism as a mode of constitutional hermeneutics, the spirit and the letter of the framers of the first founding of the US do not change. The original meaning of the text must be retained over the passage of time. This is a conservative form of legal hermeneutics. Thus, in terms of Originalism the founding fathers and framers of the constitution of the first founding of the US never intended for people of African descent both free and enslaved to be citizens of the US. Even though the founding fathers and framers of the constitution were not monolithic, they were all white supremacists. They were white settlers invested some literally in land dispossession and the ownership of enslaved people as property. It is in this sense that they were all white racists immersed in racism as a mode of existence in a white settler colony but merely different in their modes of expression. For instance, some like Jefferson and Lincoln wanted to deport enslaved Africans while others wanted to continue to own them as property. This implies that they all agreed that people of African descent can never be US citizens. When Justice Taney in the Dred Scott case stated that African Americans had no rights a white man is bound to respect, he in essence postulated that people of African descent are not human (legal subject) thus not worthy of being American. Chief Justice Taney’s legal opinion was in line with the jurisprudential paradigm of Originalism. However, the most important thing to note is that Justice Taney was merely giving legal expression to a common white supremacist feeling among white settlers both in the North and South. African Americans such as Dred Scott and contemporary black Americans were never envisioned as US citizens by the founding fathers and mothers of the US and the framers of the constitution during the first founding moment. They either had to be deported or remain enslaved. This is the nature of the long-standing issue of the humanity and legal status of people of African descent.

Did anything change with the second founding through constitutional amendments? In other words, did the ‘abolition’ of slavery, the granting of the right to vote and birthright citizenship by constitutional amendments change the essence of US constitutionalism in relation to people of African descent? At the core of the question is whether or not the law can trump political ontology. Can the same people who categorize and treat people of African descent as not human amend their ontological status in the eyes of white settlers through words in a legal document? Douglass was optimistic but mistaken while Delany was pessimistic and right. The simple answer from the perspective of the black radical tradition is no. This is because one can draw a straight line from the emergence of the Ku Klux Klan after the constitutional amendments to the recent Supreme Court judgments that are gutting the voting rights and birthright citizenship of black Americans. The second founding has eventuated in another process of White Reconstruction that sought to negate the legal subjecthood of black Americans to restore white supremacy. The lynching of black Americans was the crudest reenactment of the negation of the humanity and legal status of people of African descent. White Reconstruction sought to negate Black Reconstruction.

In addition to Originalism as a jurisprudential paradigm, there is Contextualism. According to Contextualism constitutions are living texts that change over time. In other words, constitutions are living legal documents that should be interpreted in the light of the changing legal and political situation. Thus, for Contextualists such as black thinkers within the black liberal tradition (like Douglass) the three constitutional amendments have changed the constitution of the first founding of the US in 1776. The second founding in the 1860s marked a new era in the history of US democracy in relation to black Americans. Black Americans were finally recognized as US human (not enslaved on plantations) and citizen (not to be deported) through the amendment of the original constitution that excluded them. One of the tenets of the black liberal tradition is that the US is redeemable and that black Americans have waged struggles for civil rights to make America a true democracy. This to a certain extent is the spirit of the 1619 project under Nicole Hanah Jones. So, it is not surprising to witness its embrace of the second founding through constitutional amendments.

For the black liberal tradition, the second founding implies a transition from slavery to freedom. This why Michell Alexendre decided to foreground Jim Crow in her book titled The New Jim Crow instead of slavery as underscored by thinkers within the black radical tradition such as George Jackson. For the black radical tradition, the second founding merely implies the transformation of chattel slavery on the plantations to neo-slavery in prisons and US society. This transformation was effected through the criminalization of the ‘troublesome property’ through the carceralization of their existence within the US. While black Americans are not owned as chattel by white settlers they are still regarded and treated as not human but criminal (inferior and dangerous). They are now included in white law as criminals and death-bound animals to be murdered on the streets and exploited in prisons. This is the nature of the afterlife of slavery. The framers of the 13^th amendment created a loophole that retained slavery through criminal conviction. White law is advancing the economic interests of racial capitalism at the core of white settler colonialism and chattel slavery. Black Americans are overrepresented in the US prison industrial complex. The same gang chain labor system that was used on plantations is utilized in prisons in the form of convict labor system. The State of California which is regarded as a liberal State even though it is rooted in chattel slavery has embraced through its constitution the loophole in the 13^th amendment. More than 50 percent of Californians have voted no against Proposition 6 which sought to abolish the prison labor system rooted in the loophole in the 13^th amendment. The State of California is replete with prisons which are embedded in the phenomenon of mass incarceration. It is in this sense that US constitutionalism is rooted in slavery and the permanence of racism.

Concluding Black Awakening in Racist America

“I am Fulani. You are in America now. This is not…. Africa. You are black. We do not like blacks. They say that America is the land of white supremacy. It is not just that we will not hire you. You help us create a bond among white Americans” (Denise Ferreira Da Silva in Towards A Global Idea of Race,2007).

Whither blacks in America? An elderly black American woman at a workshop in Merced on mass incarceration and the California Model was sitting across a table staring at me. This was a couple of months after a ‘primal scene’ in which as an African immigrant I was criminalized by police officers (I should say pigs) on campus who accused me of being black on campus (suspicious black man). My crime? A student taking an afternoon walk on campus ‘while black’. Anyway, her face was replete with hieroglyphics of old age in a country and State rooted in white supremacy. I was facing an embodied archive of the trials and tribulations of blackness in what Fanon called ‘a country of lynchers’. In my militant clothes, black beret and green shirt, I must have taken her back to the 1960s. I looked green, intrepid and bullish. She did not know that I am not a black American, but ‘the fact of blackness’ created an immediate bond. I was her ‘black boy’ even though I am a ‘native son’ of Azania (South Africa). For a long while her visage was a facial register of nihilism and nostalgia. With delicate diffidence she raised her hand. With our ‘faces at the bottom of the well’ she postulated the Bell thesis by stating that ‘all the gains of the Civil Rights Movement seem to be in vain under the current Trump Administration’. This was long before the Supreme Court commenced with the gutting of the voting right and birthright citizenship. This essay is an attempt at providing a jurisprudential analysis of this Sisyphean eternal recurrence of the same rooted in the pendulum intermittently swinging back and forth between black Reconstruction (relaxation of white supremacy) and white Redemption (intensification of white supremacy).

Masilo Lepuru
African philosopher and founding director of the Institute for Kemetic and Marcus Garvey Studies (IKMGS)