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...

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?

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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.

Cast yourself back to 1857 and Chief Justice Roger B. Taney writing the decision in Dred Scott v. Sanford. Taney’s argument is:

As I recall, Roger B. Taney's principal argument was that:

• (a) if back in 1775 white Englishmen had regarded Black Africans as capable of becoming citizens,

• (b) they would not have been able to indulge in the Atlantic slavery economy as they did,

• (c) hence those enslaved and their progeny were not citizens of the several states in 1787,

• (d) did not become citizens of the United States upon the adoption of the Constitution,

• (e) have not been made citizens of the United States by congressional naturalization since, thus

• (g) while Dred Scott is indubitably a citizen of the state of Illinois,

• (h) he is not a citizen of the United States, and

• (i) has no standing to be a plaintiff before the federal courts.¹

My suspicion is that back in his day our good Jacksonian Chief Justice Taney regarded this argument of his as Solomonic baby-splitting. He was trying to give each section's powerbrokers what they wanted most: Illinois could free slaves brought into it and make them citizens, but no federal court could poke its nose into the status of blacks in Missouri, or in the territories. And I would note that the infamous "black men have no rights..." Taney quote is, in context, not put forward as his opinion in 1857, but rather as an opinion underpinning the original public meaning or whatever of the words of the U.S. Constitution in 1787.

(Of course, Taney then goes on to write that if Scott had standing, he would still lose because (j) Congress has no power to prohibit slavery in the territories, and (k) slave property is in any event protected by the V Amendment.)

I do think that there is some evidence that this argument of Taney’s was seen to have some force in 1865. The framing of the 14thAamendment suggests that, at least to me: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside..."

Taney’s (and Damsky’s) argument about how racist white Americans were in the late 1700s seems to me to be not weak.

Consider Benjamin Franklin, writing in 1751 about the swarthy German immigrants polluting his beloved Pennsylvania:

Benjamin Franklin: Observations Concerning the Increase of Mankind, Peopling of Countries, & c.<https://founders.archives.gov/documents/Franklin/01-04-02-0107>: ‘Why should the Palatine Boors be suffered to swarm into our Settlements, and by herding together establish their Language and Manners to the Exclusion of ours? Why should Pennsylvania, founded by the English, become a Colony of Aliens, who will shortly be so numerous as to Germanize us instead of our Anglifying them, and will never adopt our Language or Customs, any more than they can acquire our Complexion.

Which leads me to add one Remark: That the Number of purely white People in the World is proportionably very small. All Africa is black or tawny. Asia chiefly tawny. America (exclusive of the new Comers) wholly so. And in Europe, the Spaniards, Italians, French, Russians and Swedes, are generally of what we call a swarthy Complexion; as are the Germans also, the Saxons only excepted, who with the English, make the principal Body of White People on the Face of the Earth.

I could wish their Numbers were increased. And while we are, as I may call it, Scouring our Planet, by clearing America of Woods, and so making this Side of our Globe reflect a brighter Light to the Eyes of Inhabitants in Mars or Venus, why should we in the Sight of Superior Beings, darken its People? why increase the Sons of Africa, by Planting them in America, where we have so fair an Opportunity, by excluding all Blacks and Tawneys, of increasing the lovely White and Red?

But perhaps I am partial to the Complexion of my Country, for such Kind of Partiality is natural to Mankind…

The only semi-saving grace I can find for Franklin here is the claim that Amerindians belong, and that the aim of “excluding all Blacks and Tawneys” is to get the benefit of “increasing the lovely White and Red”.

Thus the only potential successful rebuttal I see to the argument that the “we the people” acting to establish the Constitution in 1787 were the white people would, I think, require that you inquire and establish that freed slaves and their descendants were part of the ratifying electorate back at the establishment of the Constitution. Looking at the history as of 1787, we find:

• Vermont: Its 1777 constitution was the first in the U.S. to ban slavery outright and did not restrict voting by race. Free Black men who met the property requirements could vote, and there is some evidence that a few did.

• New Hampshire: The 1784 constitution did not specify race as a barrier to voting. The franchise was limited by property and taxpaying requirements, but there is no evidence of a formal racial bar. Some historians believe free Black men could and did vote.

• Massachusetts: The 1780 Massachusetts Constitution did not restrict voting by race. Theoretically, any free man meeting property requirements could vote. In practice, some free Black men did vote in the late 18th and early 19th centuries, though the numbers were small and local officials sometimes found ways to discourage or ignore their participation.

• Rhode Island: The property-based franchise did not explicitly bar Black men. There are scattered references to free Black property owners, but no clear evidence of Black voting before the 1840s, when the state’s Dorr Rebellion and new constitution clarified the issue.

• Connecticut: The 1662 colonial charter, still in effect in 1787, limited voting to “freemen,” and in practice, this meant white men. There is no evidence that free Black men voted in Connecticut at this time, and later laws explicitly excluded them.

• Pennsylvania: The state did not explicitly bar free Black men from voting, and some did vote, especially in Philadelphia, as long as they met property and taxpaying requirements.

• New York: Free Black men who met property requirements could vote in New York. This right was later restricted in 1821, but in 1787, Black property owners could participate in elections.

• New Jersey: Its 1776 constitution allowed “all inhabitants” worth at least £50 to vote, which included women and free Black men. This was rolled back in 1807.

• Delaware, Maryland, Virginia, North Carolina, South Carolina, Georgia?: No way.

Is that enough Black voting in the ratification elections to have made it “we the people” rather than “we the white people” back in the day? Maybe. Maybe not. Do recall the slogan of the South African Communist Party during the Rand Rebellion of 1922: “Workers of the world, unite and fight for a white South Africa”.

But Roger Taney in Dred Scott could easily have decided the standing issue the other way, noting that in eight states in 1787 sufficiently well-off freedmen were, potentially at least, in the body politic that established the Constitution, and hence that Illinois's recognition of his state citizenship carried federal citizenship with it.

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References:

• Bujold, Lois McMaster. Brothers in Arms. Baen Books, 1989. https://www.baen.com/brothers-in-arms.html

• DeLong, J. Bradford. “I Have Yet Another Problem with Mark Graber…” (2008). Grasping Reality. https://delong.typepad.com/sdj/2008/08/i-have-yet-anot.html ↗008/08/i-have-yet-anot.html

• DeLong, J. Bradford. “Law Professor Mark Graber Strikes Again” (2007). Grasping Reality. https://delong.typepad.com/sdj/2007/08/law-professor-m.html

• DeLong, J. Bradford. “What Did People Expect When the Constitution Was Ratified?” (2007). Grasping Reality. https://www.bradford-delong.com/2007/01/what_did_people.html

• Fausset, Richard. “A White Nationalist Wrote a Law School Paper Promoting Racist Views. It Won Him an Award.” New York Times, June 21, 2025. https://www.nytimes.com/2025/06/21/us/white-supremacist-university-of-florida-paper.html

• Finkelman, Paul. The Origins of the Dred Scott Case: Jacksonian Jurisprudence and the Supreme Court, 1815–1859. University of Georgia Press, 1997. https://ugapress.org/book/9780820318871/the-origins-of-the-dred-scott-case/

• Foner, Eric. The Fiery Trial: Abraham Lincoln and American Slavery. W.W. Norton, 2010. https://wwnorton.com/books/9780393340662

• Franklin, Benjamin. “Observations Concerning the Increase of Mankind, Peopling of Countries, &c.” (1751). Founders Online. https://founders.archives.gov/documents/Franklin/01-04-02-0107

• Graber, Mark. Dred Scott and the Problem of Constitutional Evil. Cambridge University Press, 2006. https://www.cambridge.org/us/academic/subjects/law/constitutional-and-administrative-law/dred-scott-and-problem-constitutional-evil

• Litwack, Leon F. North of Slavery: The Negro in the Free States, 1790–1860. University of Chicago Press, 1961. https://press.uchicago.edu/ucp/books/book/chicago/N/bo3646184.html

• Oakes, James. The Radical & the Republican: Frederick Douglass, Abraham Lincoln, & the Triumph of Antislavery Politics. W.W. Norton, 2007. https://wwnorton.com/books/9780393061949

• Ratcliffe, Donald. “The Right to Vote and the Rise of Democracy, 1787–1828.” Journal of the Early Republic, Vol. 33, No. 2 (Summer, 2013), pp. 219–254. https://www.jstor.org/stable/10.1353/jer.2013.0040

• Taney, Roger B. Opinion in Dred Scott v. Sandford, 60 U.S. 393 (1857). https://www.oyez.org/cases/1850-1900/60us393

• Tomlins, Christopher. Freedom Bound: Law, Labor, & Civic Identity in Colonizing English America, 1580–1865. Cambridge University Press, 2010. https://www.cambridge.org/core/books/freedom-bound/6E4F9D7DDAF3B6E84A2A6B6E2B9C2C6B

• Waldstreicher, David. Slavery’s Constitution: From Revolution to Ratification. Hill and Wang, 2009. https://us.macmillan.com/books/9780809072354/slaverysconstitution

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1. Taney: The question to be decided is whether the facts stated in the plea are sufficient to show that the plaintiff is not entitled to sue as a citizen in a court of the United States.... The question is simply this: can a negro whose ancestors were imported into this country and sold as slaves become a member of the political community formed and brought into existence by the Constitution of the United States, and as such become entitled to all the rights, and privileges, and immunities, guarantied by that instrument to the citizen, one of which rights is the privilege of suing in a court of the United States in the cases specified in the Constitution?... Are [they] citizens of a State in the sense in which the word "citizen" is used in the Constitution of the United States[?]... On the contrary, they were at that time [of the writing of the Constitution] considered as a subordinate and inferior class of beings who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those who held the power and the Government might choose to grant them....

In discussing this question, we must not confound the rights of citizenship which a State may confer within its own limits and the rights of citizenship as a member of the Union. It does not by any means follow, because he has all the rights and privileges of a citizen of a State, that he must be a citizen of the United States.... Each State may still confer them upon an alien, or anyone it thinks proper, or upon any class or description of persons, yet he would not be a citizen in the sense in which that word is used in the Constitution of the United States, nor entitled to sue as such in one of its courts, nor to the privileges and immunities of a citizen in the other States.... The Constitution has conferred on Congress the right to establish an uniform rule of naturalization, and this right is evidently exclusive, and has always been held by this court to be so. Consequently, no State... ca... invest him with the rights and privileges secured to a citizen... under the Federal Government, although, so far as the State alone was concerned, he would undoubtedly be entitled to the rights of a citizen and clothed with all the rights and immunities which the Constitution and laws of the State attached to that character....

It becomes necessary, therefore, to determine who were citizens of the several States when the Constitution was adopted. And in order to do this, we must recur to the Governments and institutions of the thirteen colonies when they separated from Great Britai.... We must inquire who, at that time, were recognised as the people or citizens of a State whose rights and liberties had been outraged by the English Government, and who declared their independence and assumed the powers of Government to defend their rights by force of arms....

In relation to that unfortunate race... the public history of every European nation displays it in a manner too plain to be mistaken. They had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race either in social or political relations, and so far inferior that they had no rights which the white man was bound to respect, and that the negro might justly and lawfully be reduced to slavery for his benefit. He was bought and sold, and treated as an ordinary article of merchandise and traffic whenever a profit could be made by it. This opinion was at that time fixed and universal in the civilized portion of the white race. It was regarded as an axiom in morals as well as in politics which no one thought of disputing or supposed to be open to dispute, and men in every grade and position in society daily and habitually acted upon it in their private pursuits, as well as in matters of public concern, without doubting for a moment the correctness of this opinion.

And in no nation was this opinion more firmly fixed or more uniformly acted upon than by the English Government and English people. They not only seized them on the coast of Africa and sold them or held them in slavery for their own use, but they took them as ordinary articles of merchandise to every country where they could make a profit on them, and were far more extensively engaged in this commerce than any other nation in the world...