Constitutional Sankofa

• Pages: 1437-1468
• Date: 01 June 2024
• Published date: 01 June 2024
• Author: Paul Gowder
• Subject Matter: Derecho Civil

Constitutional Sankofa

PAUL GOWDER*

In one of Afrofuturist musician Sun Ra’s songs, June Tyson chants:

“When the Black man ruled this land, Pharaoh was sitting on his throne.”

This illustrates a common theme in Afrofuturist work, often denoted using

the Twi word Sankofa, of recovering from the past in order to build the

future. Afrofuturist artists frequently draw on the cultural legacy of, inter

alia, Egypt, Ethiopia, and Haitian Vodou as historical starting points for

re-envisioning the present and future.

But actually, “when the Black man ruled this land,” at least as a

f‌irst-order approximation (and with apologies for the gendered quota-

tion), was Reconstruction—when the Constitution was reshaped by the

self-assertion of the freed.

This Essay offers a Sankofa approach to recovering the Constitution

from the forces of white supremacy and reaction which have long betrayed

the legacy of Reconstruction. Drawing on Peggy Cooper Davis’s Neglected

Stories, and bringing her call to reclaim the experiences of the freed in our

understanding of the meaning of the Reconstruction Amendments together

with constitutional and democratic theory, this Essay argues that the route

to the Constitution’s future—a future that envisions the empowerment and

inclusion of subordinated and excluded and minoritized groups—goes

through an aggressive reinterpretation of the past, one which is inspired by

the common law tradition as well as Black intellectual history. Ultimately,

it defends what I call constitutional Sankofa, a Black-centric interpretation

of the constitutional past that chooses its historical material, within the

realm of permissible historical interpretation, in order to pursue liberatory

ends.

TABLE OF CONTENTS

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1438

I. RECLAIMING AND REINVENTING HISTORY . . . . . . . . . . . . . . . . . . . . 1442

A. FREDERICK DOUGLASS’S SANKOFA CONSTITUTIONALISM . . . . . . . . . . 1443

1. Two Kinds of Sankofa............................... 1447

* Professor of Law, Northwestern University Pritzker School of Law. © 2024, Paul Gowder. Thanks

to the Editors of The Georgetown Law Journal and the participants in the Journal’s 2023 Symposium, as

well as to participants in the Public Law Workshop at Yale Law School, for feedback and fruitful

critique; thanks to Maggie Franz for fantastic research assistance.

1437

B. THE GAP BETWEEN LEGAL TRUTH AND HISTORICAL TRUTH . . . . . . . . 1449

1. Three Propositions about Law and History ............. 1450

2. Law as Practical and Normative....................... 1453

a. In Defense of Modern Lawyers’ Reliance on

Normatively Inf‌lected History. . . . . . . . . . . . . . . . . . 1454

b. In Defense of Coke’s (and Douglass’s) Historical

Normativity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1456

II. WHEN THE BLACK MAN RULED THIS LAND? . . . . . . . . . . . . . . . . . . . . 1459

A. NOW WITH 60% LESS PATRIARCHY! . . . . . . . . . . . . . . . . . . . . . . . . . . . 1460

B. OF AFRO-FEMINIST CYBORGS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1461

CONCLUSION: ON THE REAL-LIFE DATA THIEVES . . . . . . . . . . . . . . . . . . 1464

INTRODUCTION

Afrofuturism as the inspiration for a methodological approach may seem like a

poor match for a constitutional lawyer. After all, constitutional law is downright

averse to anything with “future” in the name. Its major challenges come in the form

of worries about the zombie-like “dead hand” of the past ruling the present (less sci-

ence f‌iction, more horror).

1

The currently dominant methodology, “originalism,” is

more associated with Justice Scalia’s infamous collection of eighteenth-century

dictionaries than anything forward-looking.

2

Yet Afrofuturist artists have famously drawn on symbols of the past—

particularly, the cultural and scientif‌ic achievements of Africa throughout

history—to ground their leaps into the future. Thus, Ytasha L. Womack opens

her book on Afrofuturism by pointing the reader to:

[K]ey archetypes that anchor the imagination on this spaceship ride dubbed

“freedom”: the Dogon’s Sirius star, the fabled mermaid, the sky ark, a DJ

1. One rather odd political scientist has outright analogized originalism to a zombie f‌lick. See John

Brigham, Original Intent and Other Cult Classics, 11 GOOD SOC’Y 13, 13 (2002). For a more serious

though equally evocative engagement with the issue, see Jed Rubenfeld, The Moment and the

Millennium, 66 GEO. WASH. L. REV. 1085, 1102–06 (1998) (arguing that the solution to dead-hand

problems in constitutional law is to privilege neither the will of long-dead founders nor the untrammeled

political will of present majorities, but to carry out a “struggle to lay down temporally extended

commitments and to honor those commitments over time”).

2. See, e.g., District of Columbia v. Heller, 554 U.S. 570, 581–84 (2008) (Scalia, J.) (citing a

collection of eighteenth-century dictionaries). This Essay does not aim to serve as a direct critique of

originalism. Although it occasionally uses originalism as a source of examples of alternative uses of the

past, it is self-consciously agnostic as to whether there is a version of originalism that is correct or

compatible with the approach to the past described here.

1438 THE GEORGETOWN LAW JOURNAL [Vol. 112:1437

scratch that blares like a Miles Davis horn, an ankh, a Yoruba deity, an

Egyptian god, a body of water, a dancing robot, an Outkast ATLien.

3

In the quoted passage, Womack seems to be simultaneously describing and

performing an Afrofuturist approach to time which replaces the diachronic with

the synchronic and situates dancing robots and Yoruba religious traditions to-

gether.

4

In contemporary Afrofuturist art, Janelle Mona

´e’s cyborg alter ego Cindi

Mayweather likewise lives out of chronological time—literary theorist Kristen

Lillvis describes how Mona

´e attributes a “Digital Auction Code” and “manumis-

sion papers” to Mayweather while spanning history and the future in her musical

allusions.

5

For Lillvis, this represents “subjective” and “temporal” “liminality,”

through which “boundary crossings enable black subjects to connect to black his-

tory in the present and also f‌ind authority in the potentiality of the future.”

6

I, following several scholars of Afrofuturist art, use the word Sankofa to denote

this practice.

7

Sankofa is a Twi word from the Akan people (associated with the

modern nation of Ghana) which translates as “go back and fetch it,”

8

and captures

the idea of recovering from the past in order to build the future.

9

The word has

been identif‌ied as part of a proverb translated more fully as “it is not taboo to

return into history to reclaim the past in order to move forward.”

10

One function of Afrofuturist Sankofa is to resist hegemonic white/European

conceptions of the future as inevitably built on assumed (and hence invisible)

European cultural traditions. For example, the Black Panther f‌ilm shows a vision

of a high-technology society with futuristic buildings based on traditional

African architectural forms, unsettling the assumption that the technological

future descends naturally and inevitably from European styles of building.

11

Afrofuturism as a whole is, in part, a response to the exclusion (or, more

3. YTASHA L. WOMACK, AFROFUTURISM: THE WORLD OF BLACK SCI-FI AND FANTASY CULTURE 1

(1st ed. 2013).

4. See id.

5. KRISTEN LILLVIS, POSTHUMAN BLACKNESS AND THE BLACK FEMALE IMAGINATION 58 (2017). On

the body as property and the feminist/Afrofuturist f‌igure of the cyborg, see infra Section II.A.

6. LILLVIS, supra note 5, at 58.

7. For examples of Afrofuturist scholars using the term, see Elisabeth Abena Osei, Wakanda Africa

Do You See? Reading Black Panther as a Decolonial Film Through the Lens of the Sankofa Theory, 37

CRITICAL STUD. MEDIA COMMC’N 378, 378 (2020); Emanuelle K. F. Oliveira-Monte, Lu Ain-Zaila’s

Sankofa and Brazilian Afrofuturism: Akan Philosophy and Black Utopia in a Postapocalyptic World,

7 J. LUSOPHONE STUD. 31, 31 (2022).

8. Angi Porter, Africana Legal Studies: A New Theoretical Approach to Law & Protocol, 27 MICH. J.

RACE & L. 249, 261 (2022).

9. According to Odamtten and Getz: “Sankofa, the artistic embodiment of the mythical Akan bird

with its splayed feet facing forward to the future and its head looking back to the past, with ‘food’ or

knowledge nestled in its mouth, has come to represent in many ways a Ghanaian philosophy of history

and national development.” Harry Odamtten & Trevor R. Getz, Sankofa and the Nation-State, 5 J. W.

AFR. HIST. v, v (2019).

10. Osei, supra note 7, at 382.

11. See id. at 385–86.

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