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Excerpted From: Rhonda V. Magee Andrews, Racial Suffering as Human Suffering: An Existentially-grounded Humanity Consciousness as a Guide to a Fourteenth Amendment Reborn, 13 Temple Political & Civil Rights Law Review 891 (Spring 2004) (117 Footnotes) (Full Document)

RhondaMageeIn a recent article entitled The Third Reconstruction: An Alternative to Race Consciousness and Colorblindness in Post-Slavery America, I examined the philosophical underpinnings of the Reconstruction Amendments for guideposts toward their modern-day reinterpretation. I framed the inquiry as fundamentally to be guided by deep jurisprudential questions concerning “what it means to be a constitutionally-protected human being,” and how this meaning should inform interpretation of the Reconstruction Amendments. I argued for a reinterpretation of the Fourteenth Amendment to reflect what I posited to be the central transformative ideas implied by the provision's most progressive progenitors: (1) the notion of universal humanity and post-racialized human dignity, and (2) the notion that dignified human existence must be characterized by particular substantive conditions. This analysis led me to develop and advance what I termed a “Humanity Consciousness” approach to interpreting the Fourteenth Amendment, one aimed at “reconstructing what it means to be a human being in the eyes of the law [in a post-racialized world], and ensuring that the doctrine constantly reaffirms that meaning [ ]”.

In The Third Reconstruction, I considered the moral philosophy of the abolitionists whose constitution-based arguments ultimately led to the Fourteenth Amendment, arguing that at its root was a post-racial conceptualization of the human being and an implicit call for law which protected universal human dignity. At the same time, I acknowledged the twofold nature of human existence in contemporary society--being, at the same time, racialized in the world and non-racialized at its essence. This, I posited, requires a circumstantially-grounded interim gloss on the Humanity Consciousness approach: one that protects individuals from racial oppression so long as people remain racialized, while simultaneously embracing a commitment to a post-racial “Humanity Consciousness” in the law that might deconstruct racialization at its roots.

This essay explores two follow-up questions. First, are there contemporary philosophical sources that support such a reinterpretation of the Reconstruction Amendments? And second, do those contemporary approaches support the proposed interim gloss on the Humanity Consciousness approach, as a guide during the transition from a racist to a post-racialized world?

As developed here, the philosophy of existence, or existentialism, is an alternative source of a liberation-focused Fourteenth Amendment jurisprudence, one that places a “post-subordinationist” notion of human dignity at the center, and simultaneously embodies a commitment to a post-racial approach to law and politics. Hence, existentialism, especially those strains that one might describe as spiritually-informed, provides a solid ground for the Humanity Consciousness approach as jurisprudential method.

In Part II, I outline the philosophy of existence and its relevance to Humanity Consciousness. I demonstrate that the substantive life conditions of the human being, insofar as these conditions bear on his or her liberation, have also been the preoccupation of philosophers of existence focused on the Black experience and political theorists interested in the notion of human freedom.

In Part III, I argue that these concerns are consistent with those reflected in the language of the Fourteenth Amendment. I argue that the Fourteenth Amendment specifically marks a Constitutional response to the abject human suffering and denial of human freedom by which racialized existence in the nineteenth century was characterized, including, primarily, the condition of Blacks under slavery. Accordingly, I argue that philosophies of existence should guide our modern day interpretation of the Fourteenth Amendment.

In Part IV, I apply the philosophy of existence to an analysis of race today, in an effort to glean insights applicable to the development of a Fourteenth Amendment jurisprudence appropriate to guide us toward a post-subordinationist world. I employ existentialism by describing aspects of my own experience of “Blackness,” using the experiential deconstruction method as a means of illuminating some of the existential anxiety and injuries associated with racialization today. In plainer words, I tell a few stories, and then discuss the existential implications of them. In this way I demonstrate the support to be found in the philosophy of Black existence for the Humanity Consciousness approach.

In Part V, I draw on the approach to elaborate on an alternative approach to Fourteenth Amendment jurisprudence.


Any close examination of prevailing Fourteenth Amendment law in historical context provides support for the conclusion that we have failed to interpret the doctrine in ways which capture its existentialist underpinnings, and that the recognition of these failures point, in definite directions, toward the need for a reformed Fourteenth Amendment jurisprudence. Critical race theorists and reconstruction theorists have long relied, implicitly and explicitly, on existentialist insights and methodologies. This essay explicitly links important theoretical and methodological impulses of critical race theory (e.g., the use of narrative, the relentless focus on “lived experience” and contextualized analysis and the appeal to the law as a means of facilitating human freedom and the existential conditions necessary thereto) to the philosophy of existence and a liberation-focused Humanity Consciousness. In this sense, the project described here is a jurisprudential project, with distinct substantive, socially transformative aims. As applied here, the philosophy of Black existence underscores the links between Critical Race Theory and Critical Legal Theory, refining critical jurisprudence to bring about an understanding of both the concrete and the abstract aims of reconstruction as Black existential imperatives, and hence, fundamentally, as human existential imperatives, and demands that these be politically framed and addressed using the language of Constitutional, or human, rights.

For example, from an existentialist perspective, the voices of victims matter not just because they are the voices of society's traditionally disadvantaged, the marginalization of whom must be arrested somehow. From an existentially-grounded Humanity Consciousness, experience matters because it is only through careful analysis of experience that we have any hope of getting at what is essentially human, and what is, therefore, most “true” about humanity-- again, the only true starting point for a normative philosophy of any kind. Thus, existentialism helps us understand and explain the project of racial justice in universal terms, as a fundamentally human ontological project with fundamental implications for all of us. When filtered through the methodology of a liberation-focused Humanity Consciousness, new interpretations of the Amendment are not merely possible, but become societal imperatives.

Official society has never sought to repair the harm done to all of us by centuries of racialist social policy, and an important factor in explaining society's failure to seek to repair the harms of racialization is our failure to view those harms in existentialist terms. That is, we have not been able to see that the injuries of race and racialization not only affect the racially subjugated, but leave wounds that reverberate, at varying frequencies and intensities, through us all. Without this re- envisioning of the nature of the harm to all of us that is implicit in racialization and white supremacy, we have been limited in our visions of ourselves, which remain too-much determined by racialist assumptions. And we have been limited in the interpretive framework for post-slavery Constitutional theory generally, and Fourteenth Amendment theory in particular. An existentially-grounded, and hence liberation-riveted, Humanity Consciousness urges each of us toward a concrete program for repairing this harm by supporting us in seeing, feeling, ethically evaluating, and doing the work of transforming the conditions of the world which undermine human potential.

DuBois struggled to articulate the special gift to humanity to be bestowed upon the human race by Blacks, and concluded that it would be the great musical contribution of the Negro spiritual. I do not deny the cultural force and genius of the Negro Spiritual--I, too, lifted my voice as a little girl in my church's “Beams of Hope” choir and sang “Why Don't You Steal Away,” a song that, like much of Black music from gospel to rap, continues to help Blacks express their innate dignity, and endure oppression, just as it has done for centuries. Still, I believe that the true gift of Blacks and the experience of Blackness to humanity will be the birth of the free and fully revered human being.

“Black” people are born into a situation that compels extraordinary efforts at transcendence. We are fated by history to struggle with the question of the true meaning of humanity. The central point of departure that we have inherited for this task, as respects the core institutions of this country, is the supreme law of the land, the post-slavery Constitution, including its influential Fourteenth Amendment. Philosophies of existence can assist us in reinterpreting the Fourteenth Amendment and other important provisions of the Constitution to provide greater attention to and redress of the existential injuries of slavery, giving us a basis for claiming a Constitutional commitment to ensuring to The People the conditions that enable The People's uplift - housing, healthcare and the opportunity for self-development. Perhaps more importantly, through an existentially-inspired, liberation-riveted Humanity Consciousness we can experience the Fourteenth Amendment as a bridge between our own work at deconstructing the limits of race and racialization, and the reconstruction, and humanization, of humanity itself.

Professor of Law, University of San Francisco, Visiting Professor of Law, William and Mary College. B.A. (1989), M.A. (Sociology) (1993), J.D. (1993), University of Virginia.