Last year a Trump-appointed sitting federal judge, John Badalamenti, awarded a student, Preston Damsky, a law-school prize for an essay written for the judge’s seminar. Damsky argued that the Constitution was originally intended only for white people and therefore even today non-whites could not claim their Constitutional rights and privileges.
Several days ago the NY Times reported that after winning his award Damsky began posting racist messages on X. His posts brayed that non-whites be stripped of their voting rights and given ten years to leave the country; border patrols should shoot to kill anyone attempting to illegally enter the U.S.; and the highly original suggestion that Jews should be “abolished by any means necessary.” He also complained that Germans did not revere Hitler as they ought and that referring to himself as a Nazi “would not be manifestly wrong”. In his defense, Damsky protested “I’m not, like, a psychopathic ax murderer.” No, but he sounds like he might set one loose along the Rio Grande or inside the nearest synagogue. His essay aimed to provide the legal rationale needed to fulfill his fantasies.
So why was his work honored? Judge Badalamenti hasn’t commented. However, when students protested the award to interim law school dean Merritt McAlister, she defended it on the basis of free speech and the “institutional neutrality” defense that professors must not engage in “viewpoint discrimination.”
It is true that Damsky has a right to write his essay and post what he wants on X without being arrested. That is his right to free speech. But members of the University have the right to use free speech to protest a blatantly racist essay winning a law school prize. In fact, the University could even let the award stand while rightfully criticizing Damsky’s racism and Badalamenti’s sanctioning of it. And of course every institution has guidelines for acceptable behavior they can enforce within their own precincts. Hanging a noose on a black student’s dorm room door or drawing a swastika on a Jewish student’s may not be prosecuted as a crime but it could certainly get one expelled from most schools.
As it happened, Brian Kramer, a local prosecutor whose office had offered Damsky a summer internship, rescinded the offer. “You could imagine,” said Kramer, that “having someone in your office who espouses those kinds of beliefs would cause significant mistrust in the fairness of prosecutions.” Kramer’s common sense goes to the heart of the issue: does this person’s views cast doubt on their ability to respect the law and apply it equally to those it is meant to protect? And it leads one to wonder how a view of the law that disqualifies one from practicing It was rewarded by Judge Badalamenti.
Ah, but what about “institutional neutrality” as cited by McAllister and several Florida professors? Shouldn’t it apply to Badalamenti’s membership in the Federalist Society? The Society has waged unremitting war on the integrity of the judiciary, the Supreme Court, and the entire federal government. Social Security, Medicare, voting rights, the Center for Disease Control, and countless other government programs and services have been in the Society’s crosshairs since its founding in 1982 in the wake of Ronald Reagan’s election. Was Badalamanti’s enthusiasm for Damsky’s essay an example of “institutional neutrality”? Or did he recognize that Damsky’s reading of the Constitution supported dismantling virtually all federal programs promoting public health, safety, education, nutrition, and child and worker welfare?
But here’s an ironic twist to U of Florida’s “institutional neutrality”. This past January SMU Professor of Law Carliss Chatman, a black woman, was a visiting scholar at U. of Florida’s law school. She said she found it “fascinating” that when she offered a course at Florida titled “Race, Entrepreneurship, and Inequality,” the law school changed the course name to “Entrepreneurship”, listing it as such in the course catalog. So “Race” and “Inequality” were off-limits; Damsky’s language was rewarded. That’s a very bad look for Florida’s higher ed system that has already descended into book-banning and the recent gutting of New College, one of its most innovative, successful campuses.
The link between Badalamenti and the Federalist Society brings us to the real issue for which Damsky is just a convenient storm trooper. The bogus legal theory of “Originalism” is the linch-pin of the current Supreme Court majority’s deconstruction of the Federal government. Originalism holds that the Constitution should be interpreted as it was intended or understood at the time of its ratification. Set the time machine dial for June 21, 1788.
The idea is nonsense for many reasons but let’s acknowledge a few obvious ones:
1) The nation’s founders are no longer around to explain what they really were thinking. They did, however, leave a lot of writing behind that argues passionately for a view of governance and the law as a living, organic frameworks adaptable to the times.
2) Originalism elevates the Consitution to the status of a divine text which only its high priests, i.e., “Originalists”, can properly interpret. It’s a false sanctity used to stifle the deeper view of citizenship and federal activism suitable to the 21st rather than 18th century.
3) The language of the Constitution and the documents originalists use to support their claim is inadequate for a nation and government exponentially more complex than it was 237 years ago. Language emerges and grows through countless interactions between those who use it and the minutiae of the world they are interacting with. To remain coherent, language has to “expand” via interpretation. That’s why law school libraries exist. Without this interpretive growth, a chasm of disconnect opens between original texts and a world vastly different from the one they were written for. A perfect example of this is the long-standiing conflict over the Executive branch’s impingement on Congress’s right to declare war. If we can’t agree on the “original” meaning of “war”, then what is originalism good for?
The highly educated founders of this nation were aware that the world was changing irrevocably under the impact of science, technology, revolutionary ideas, and challenges to political orthodoxy. The notion that interpretation be frozen now and forever according to alleged “intentions”, ca. 1788, would have likely seemed lunacy to them.
Originalism happens to dovetail with another foundational idea of today’s right wing authoritarianism: biblical literalism. This device serves as a brainwashing/marketing tool for squelching independent thought. Its simplistic approach helps impose obedience and submission upon the faithful by reducing complex spiritual ideas to their feeblest common denominator. It is the engine behind the U.S.’s recently reinvigorated war against science, critical thinking, and dissent. Both originalism and literalism were fabricated to achieve distinct political ends. And just as originalism has no political validity, literalism makes no religious sense. The book of Genesis was never meant to be taken literally by the people who wrote it. And Jesus constantly employed a rich fund of lovely non-literal metaphors to deliver his message. He also was, like Bob Dylan’s John Wesley Harding and unlike the many right wing religious leaders who have flocked to Trump, “a friend to the poor…he was always known to lend a helping hand.”
Some argue that originalism and literalism are two different concepts but that is disingenuous and misleading. “Originalist” interpretations of the Constitution almost always rely upon a literal interpretation of the text and the distinction is often blurred in judicial decisions. “Original intent” requires that language be reduced to its least flexible and nuanced form.
Ironically, an originalist interpretation of the Second Amendment would mean the right to bear arms would apply only to those weapons in use on or before June 21, 1788. If it took a shooter 1 or 2 minutes to reload his rifle after every shot, mass shootings would become almost impossible. That is an originalist interpretation I would gladly welcome.
Update: If case this seems an odd, isolated incident, the New York Times two days ago reported that the “Trump justice department is pressuring the University of Virginia President to resign”. The department threatens withholding “hundreds of millions of dollars in federal funding… because of what the [Justice] department says is the school’s disregard for civil rights law over its diversity practices”. In normal times we’d wonder what discriminatory practices U of V, one of the nation’s most esteemed universities, might have been underhandedly pursuing. But no, not the case! Trump and his deputy assistant attorney general for civil rights Gregory Brown, a U of V alum, have decided that President Ryan’s “disregard for civil rights law” is that “he has not dismantled the school’s diversity, equity and inclusion programs” (emphasis mine).
Badalamenti’s shameful awarding of a prize for Damsky’s essay is far from an isolated incident. In Trump’s America, upholding civil rights becomes a violation of civil rights and education at every level is in the crosshairs. Hopefully those crosshairs belong to a 1770s vintage Brown Bess muzzle-loading smoothbore musket. Whoops, crosshairs weren’t in use until the mid 19th-century. Damn, that originalism is tricky!
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