John Badalamenti, a federal judge appointed by President Donald Trump in 2020, co-taught a seminar on originalism at University of Florida Law last fall. At the end of the term, he bestowed the best-in-class award to Preston Terry Damsky, a law student who in his capstone paper argued that the Constitution only applies to white people.
Proponents of originalism, including the Republican justices on the Supreme Court, contend that the Constitution must be understood today as it was originally understood at the time of ratification. And in his paper, Damsky insisted that the framers clearly used “we the people” to mean white people, and that courts have a duty to maintain nonwhite people’s constitutional exclusion. “The idea of permitting non-White immigration (aside from within the hulls of slave ships), much less permitting non-White naturalization, does not to [sic] appear to have been countenanced by any of the Founders,” said Damsky. This essentially rehashes Chief Justice Roger Taney’s ignominious 1857 decision Dred Scott v. Sandford, which held that Black people were not and could never become citizens and, relatedly, helped kick-start the Civil War.
Unlike Taney, Damsky wrote his racist screed after Congress adopted the post-Civil War Reconstruction Amendments, which established that rights would no longer be based on race. Damsky got around this by saying those provisions don’t count, and urging courts to repudiate their protections. “Given that the United States was founded as a race-based nation-state for the preservation and betterment of White Americans (the People), as clearly laid out in the Preamble and revealed by our history, it is difficult to see how these amendments (or at least the way they have been interpreted in the post-World War II era) do not amount to unconstitutional, revolutionary usurpations by the constituted government power,” said Damsky. According to this up-and-coming originalist scholar, constitutional amendments that stymie white supremacy are themselves unconstitutional.
After some good old-fashioned fearmongering about white people becoming a minority in their own country, Damsky concluded by asserting that courts have and must use the power to end the “dispossession of White America” and “demographic assault on their sovereignty,” lest white people violently overthrow the government. Badalamenti, who records show was given a judicial robe in 2020 and not a Klan robe in 1920, apparently deemed this argument worthy of academic honors.
Damsky’s paper is disturbing, and not simply because it recycles stale and slipshod racist reasoning. The real horror is the cachet it apparently won with a sitting federal judge, and its exposure of the rotten core of conservative legal thought.
Badalamenti at his 2020 confirmation hearing (Screencap via SJC website)
The idea that a purported original meaning is the sole proper basis for constitutional interpretation developed as a direct backlash against Brown v. Board of Education. When the Supreme Court struck down segregated schools as unconstitutional in 1954, members of Congress who represented states in the former Confederacy invoked the framers in efforts to ground their resistance to the ruling in law: The founding generation didn’t think the Fourteenth Amendment prevented states from racially segregating schools, they argued, so the Court could not now say otherwise. This became the conservative legal movement’s go-to constitutional rationale for maintaining systems of oppression. In other words, originalism was designed to be used exactly as Damsky is using it: to preserve and promote white supremacy.
Damsky’s arguments are also not so different from other arguments modern originalists have tried to push into the legal mainstream. Fifth Circuit Court of Appeals Judge James Ho, for instance, said immigrants are perpetrating an “invasion” and called for a reconsideration of birthright citizenship. So did Damsky, who called on courts to “categorically” prevent grants of citizenship “if those children are non-Whites.” As a law professor at Notre Dame in 2016, Justice Amy Coney Barrett described the Fourteenth Amendment as “possibly illegitimate.” So did Damsky, who called on courts to “begin to question the constitutionality of the Fourteenth and Fifteenth amendments.”
Right-wing reactionaries have spent the past few decades insisting that the Constitution’s meaning is fixed in time so that they can turn back the clock and undo civil rights gains while maintaining a semblance of respectability. And Damsky’s paper turned their subtext into text.
Perhaps it is because Damsky’s 20-page ode to white nationalism overlaps so much with standard Trump-judge thinking that Judge Badalamenti didn’t catch himself before engaging in nationally newsworthy racism. It’s normal for Trump appointees to voice their devotion to history and tradition without regard for the quality of that history or tradition or basic common sense. That voice can drown out the one that chimes in with advice like, “Don’t endorse judges declaring the Constitution unconstitutional.”
In town halls and emails to the law school community, Florida Law’s Interim Dean Merritt McAlister has emphasized the need for “institutional neutrality” and the absence of an “ideological litmus test” for grading. “Our job as a community is to have dialogue and discussion and debate on these issues and let the marketplace of ideas drown out a particularly odious idea,” she said. This ignores the fact that Badalamenti did not treat the idea as odious, but instead gave it an award.
At the Volokh Conspiracy, South Texas College of Law Houston Professor Josh Blackman, renowned friend to terrible conservative arguments and foe to good writing, admitted unbidden that he would have given the paper an A, too, and criticized the New York Times reporter who broke the story for sullying a good judge’s name “in service of an attack on originalism.” But originalism doesn’t need any outside help to look bad. Originalists do that all by themselves.
