Who Were the ‘We the People’ Back in 1787?: Race, Law, & Original Constitutional Sin
Plus the Reconstruction-Era XIV-Amendment redemption. In which I go down a rabbithole of “original public meaning” or whatever. A law student’s white nationalist screed wins a prize, echoing arguments once enshrined by the Supreme Court itself—but not since 1857, and definitely not at all since the XIV Amendment’s 1868 ratification. But were the Founders really such exclusionary white supremacists? And what do we do with Ben Franklin’s prejudices against the swarthy Germans immigrating into his beloved Pennsylvania?
I have a section from my American Economic History lectures this spring on the post-1500 Atlantic-economy racialization of early modern slavery that I want to get into good enough shape to post here. It is not yet there.
And this morning a correspondent who does not especially wish me well this morning with respect to my mental harmony sends something across my screen. He sends me a piece from the New York Times that is relevant to that item on my to-do list, And so I go down a rabbit hole.
The piece:
Richard Fausset: A White Nationalist Wrote a Law School Paper Promoting Racist Views. It Won Him an Award <https://www.nytimes.com/2025/06/21/us/white-supremacist-university-of-florida-paper.html>: ‘The University of Florida student won an academic honor after he argued in a paper that the Constitution applies only to white people. From there, the situation spiraled: Preston Damsky… law student… white nationalist… antisemite. Last fall, he took a seminar taught by a federal judge on “originalism”… argued that the framers had intended for the phrase “We the People,” in the Constitution’s preamble, to refer exclusively to white people. From there, he argued for the removal of voting rights protections for nonwhites, and for the issuance of shoot-to-kill orders against “criminal infiltrators at the border.” Turning over the country to “a nonwhite majority,” Mr. Damsky wrote, would constitute a “terrible crime.”… Mr. Damsky, 29, was given the “book award,” which designated him as the best student in the class. According to the syllabus, the capstone counted the most toward final grades….
The Trump-nominated judge who taught the class, John L. Badalamenti, declined to comment…. The granting of the award set off months of turmoil on the law school campus…. Mr. Damsky’s paper includes… a call to “reconsider” birthright citizenship, and an assertion that “aliens remain second-class persons under the Constitution.” It also argues that courts should challenge the constitutionality of the 14th Amendment, which ensures birthright citizenship, due process and equal protection under the law, and the 15th Amendment, which protects the right to vote for nonwhite citizens.
Mr. Damsky concluded the paper by raising the specter of revolutionary action if the steps he recommended toward forging a white ethno-state were not taken. “The People cannot be expected to meekly swallow this demographic assault on their sovereignty,” he wrote, adding that if the courts did not act to ensure a white country, the matter would be decided “not by the careful balance of Justitia’s scales, but by the gruesome slashing of her sword”…
The New York Times story does not tell us that Damsky has been banned from the campus for various of his other actions, “including a message calling for the elimination of Jews ‘by any means necessary’”. Thus the piece is, I think, not quite fair with respect to the law school administration, which I see as more likely than not doing a pretty good job in handling the situation in its full gestalt, both with respect to maintaining itself as a community and using this troll’s appearance as a teaching moment.
And I do confess that I do not understand how a paper that argues that courts “should challenge the constitutionality of the 14th Amendment, which ensures birthright citizenship, due process and equal protection under the law, and the 15th Amendment, which protects the right to vote for nonwhite citizens”. How can a duly-ratified constitutional amendment be argued unconstitutional? That claim that the XIV Amendment to the Constitution is un-Constitutional seems, to me at least, the leading candidate for MOST JUST WRONG. I cannot see how a paper that does that can be any good. This is especially the case since Damsky appears to draw very strong conclusions for the state of the law today that are totally consistent with the post-XIV Amendment Constitution.
That said, the argument that the original public meaning of “we the people” in the U.S. Constitution was “we the [white] people” seems to me to be intellectually stronger than much of what I see winning majorities in the Roberts court these days.