Preston Terry Damsky, a white nationalist law student at the University of Florida, wrote a paper arguing that the U.S. Constitution only applies to White people. He claimed that the words "we the people" were never meant to apply to any other group. While technically accurate when considering the authors’ intentions, it overlooks the social implications of adopting this perspective. This capstone project was inspired by him taking a legal theory class on "originalism," taught by John L. Badalamenti, a judge appointed by President Donald Trump. Despite the racism embedded in his paper’s central ideas, he received an award for this scholarly work. While conservatives often claim that universities only promote liberal ideas, the warm embrace of a far-right viewpoint in this case challenges their argument. Colleges and universities promote the development of diverse perspectives. Although one could argue that lending credibility to this paper brings our society too close to the sun.
If you’re familiar with Greek mythology, you’ve probably heard the story of Icarus. To help the young man escape the labyrinth of King Minos, his father, Daedalus, crafted him a pair of wings held together with wax. He warned Icarus to be careful, saying that flying too high or too low could come with dire consequences, but as fate would have it, he flew too close to the sun. Perhaps this was due to his excitement or hubris. But regardless of his reasons, flying high caused the wax to melt. As a result, Icarus fell into the sea. Similarly, America must be careful that in its effort to protect free speech on college campuses, it doesn’t give flight to racist and other hateful worldviews. If we want to keep our wax—the social glue that holds this country together—from melting, we need to be cautious. However, some ideas in Damsky’s paper suggest we may have already crossed a line. In fact, he goes further than segregationists. Rather than being satisfied with whites-only water fountains, the paper argues that America should be a whites-only country.
People who talk about the ills of racism are often accused of being divisive. But it’s hard to imagine what could be more alienating than trying to strip citizenship from millions of Americans based on the color of their skin. Let’s briefly consider some of the ideas presented in Damsky’s paper. He cited John Jay, the former President of the Continental Congress, who described Americans in Federalist №2. He claimed they are a "people descended from the same ancestors, speaking the same language, professing the same religion, attached to the same principle of government." If we were to craft society in his image, it would undoubtedly include only White people. But there’s no reason this archaic opinion should dictate our lives. John Jay’s viewpoint is a far cry from democracy. And the Americans he described are not reflective of today's citizens. People who live here come from diverse backgrounds, with varying racial, ethnic, and cultural origins. Secondly, people here do not practice the same religion. Indeed, the very first amendment affirms this freedom and prohibits the government from establishing one above the rest. Lastly, given that Americans are politically diverse, Jay's description of all Americans sharing governing principles is inconsistent with the actual character of our nation, where rigorous debate is considered a healthy part of our political system.
The opinions of slave-owners should be taken with a grain of salt because they had an apparent conflict of interest in determining who should qualify as a citizen. They profited from keeping Black people noncitizens. While it's fair to say that Damsky's paper accurately describes the Founding Fathers' intent, it makes the error of lending credibility to their white nationalism. It's one thing to say, this is how things were — that's history. But it's another matter entirely to suggest we should return to the blatantly racist policies of the past. Originalism puts the worldview of slave owning White men on a pedestal, elevating their viewpoint more than those of living, breathing Americans. It also overlooks the efforts citizens have made to correct the initial flaws in our Constitution. For example, after the Civil War, Congress passed the 13th Amendment to abolish slavery*, the 14th Amendment to establish birthright citizenship and equal legal protection, and the 15th Amendment guaranteed formerly enslaved Black men the right to vote.
This white nationalist paper has been making the rounds in newsrooms because of the controversial nature of the premise, which posits that the U.S. Constitution only applies to White people. However, they have yet to unravel the intersectional significance of this. White nationalists are often clocked for targeting Black people. And rightfully so. But they’re also targeting other racial minorities. While each group has its respective agenda and concerns, Damsky’s paper reveals that they also face a common threat. The paper is entitled National Constitutionalism: An Originalist and Structuralist Analysis of Border Policy, Immigration and Naturalization Law, and the Fourteenth Amendment. Not only does this paper imply that "non-White immigration should never lead to naturalization," but it also blatantly attacks the citizenship status of Black people.
If legal scholars like Damsky controlled the courts and interpreted the Constitution in this way, neither a Black person nor an immigrant of color would be considered a citizen. Simply by virtue of their race, they’d be stripped of citizenship and the rights afforded to them. This highlights the dangers of strict originalist legal analysis. One Black American in Texas, Jermaine Thomas, was recently stripped of his citizenship and sent to Jamaica, a country he’s never been to. Immigration and Customs officials escorted him onto a plane with his wrists and ankles shackled. Now he’s stateless. Thomas, whose father was a naturalized Black citizen, was born in a U.S. Army base in Germany. Immigration officials seem to be interested in finding loopholes that justify stripping the rights of Black people and other non white people.
Within the text, Damsky reveals what many of us have been shouting from our digital mountaintops — that Black people and other racial minorities are positioned as perpetual outsiders by many on the far right. That was also the undercurrent for the anti-DEI movement, driven by the assumption that only White people can be fully qualified. While the ideas central to the paper remain an extremist position, we should err on the side of caution and pay attention. Damsky argued that the "courts should also begin to question the constitutionality of the Fourteenth and Fifteenth amendments." To justify this position, he cited legal scholar Richard Albert, who suggested they "represent a constitutional dismemberment," which was purportedly "incompatible with the existing framework of the constitution." To be clear, without these amendments, we’d be right back to where we started at the end of the Civil War — with uncertainty. It would, once again, be a matter of debate as to whether Black people were citizens or not. Before the war, in Dred Scott v. Sandford, supreme court justices argued that "a free negro of the African race, whose ancestors were brought to this country and sold as slaves, is not a ‘citizen’ within the meaning of the Constitution of the United States."
In endorsing a legal interpretation of the U.S. Constitution that would melt away protections for Black people as citizens as well as immigrants of color, the white nationalist paper flies too close to the sun. Embracing an originalist framework deprives citizens in the present day of the power to ensure the law reflects their values. Instead, it confines us to the Founding Fathers' ideas, even those that are abhorrent. Malcolm X once said, "you're not to be so blind with patriotism that you can't face reality. Wrong is wrong, no matter who says it." We should acknowledge, for the good of the country, that America's constitution was not perfect when it was written, which is why legislators pass amendments, which, once a president signs them, become law. This enables our laws to reflect the will of the people, at least in theory. While Black people have endured generations of voter suppression, and many believe they are poorly represented within this system, the dream of fair, multiracial democracy rests upon the sturdiness of the 14th and 15th Amendments. If they're deemed unconstitutional, then it would delegitimize Black Americans' citizenship. It wouldn't be the first time. During the chattel slavery era, when the laws of this country offered no protection for Black people, White citizens abused them. They condemned them to a hereditary form of chattel slavery, deprived them of pay, and forced them to labor in inhumane working conditions. Needless to say, this is a shameful past, not one worth idolizing.
In addition to originalism, numerous other legal theories are employed by legal analysts to interpret the U.S. Constitution. For instance, the theory of the living constitution views the document as a dynamic and ever-changing document. Thus, when scholars apply this lens, they consider the modern-day values of Americans, as well as the societal changes that have occurred. On the other hand, pragmatism emphasizes the consequences of judicial legal interpretations, something sorely lacking in originalism. Another, perhaps controversial example would be critical race theory, which posits that race has and continues to impact laws, policies, and outcomes for Black people and racial minorities. There are many legal theories used to interpret the Constitution, but originalism, or even textualism, which focuses on analyzing the text based on the context in which it was written, presents a risk, because enslavers were among the authors. We're a nation that has overcome chattel slavery. To confine our society to the viewpoints of enslavers betrays how far we've come since then. Our liberty is jeopardized by this viewpoint, not so much by its existence, but because of its appeal to the far-right.
There is no mention of White people in the U.S. Constitution. There are, however, a few references in anti-discrimination federal statutes. According to Nancy Leong, "Reconstruction-era statutes — 42 U.S.C. § 1981 and § 1982 — declared that all people shall have the ‘same right’ regarding contracts and property as that ‘enjoyed by white citizens." Stemming from the Civil Rights Act of 1866, these statutes sought to expand the promise of equal rights to citizens, regardless of their race. Since the founders initially intended for the Constitution to apply only to White people, they became a privileged racial group. Thus, legislators used them as a benchmark to determine whether others were being treated fairly. In doing so, they also exposed the initial structure of American society, a racial hierarchy where white people were at the top, and Black people and other racial minorities were below them. The civil rights movement was born out of necessity, to expand rights.
Damsky isn't telling us something new by saying that many of the founding fathers who wrote the U.S. Constitution never meant for them to apply to Black people and other racial minorities. Not for those of us well-versed in history. Yet, he is making an argument that they were right — and there lies the danger. It's not purely academic to consider whether or not you believe the 14th and 15th Amendments are valid. There are demonstrable consequences to claiming Reconstruction-era amendments are unconstitutional. The author of the paper has been known for espousing prejudice online. For example, Damsky claimed in social media posts that Jewish people should be "abolished" and that Guatemalan immigrants should be "done away with by any means." This ethnic cleansing rhetoric is reminiscent of the language used by World War II era Nazis, who sought to cause harm. Although Damsky faced suspension for making racist and antisemitic statements online, the white nationalist viewpoint expressed in his paper was embraced with open arms.
It seems America is flying too close to the sun in embracing white nationalism as a legitimate scholarly discourse. Hopefully, the nation will learn from Icarus in that respect and consider the risks of flying too high or too low. While colleges and universities should welcome diverging ideas, they should not lend aid and comfort to racism or hatred of any kind. If they do, they risk turning our institutions of higher learning into vessels for a dangerous political movement, one that's openly hostile to Black and brown people. Awarding someone for writing a paper that, if embraced by more legal scholars, would upend the citizenship and legal protections for millions of citizens seems to incentivize such behavior, to applaud it. By avoiding a pragmatic lens, they're evading a scholarly discussion about the impact of legal analysis. And thus, avoiding the heavy lifting of justifying the implications.
This post originally appeared on Medium and is edited and republished with author's permission. Read more of Allison Gaines' work on Medium.