Ali Bey and Nyhiem Way have posted A Historical and Legal Refutation of Damsky’s “National Constitutionalism” on SSRN. Here is the abstract:
Preston Terry Damsky’s “National Constitutionalism” argues that the U.S. Constitution established a racial nation-state with citizenship intended exclusively for white Americans. This Article demonstrates that Damsky’s theory collapses on three fatal foundations: (1) factually incorrect claims of categorical Black exclusion from citizenship; (2) biological essentialism about race contradicted by both the racial prerequisite cases (1878-1952) and modern anthropology; and (3) selective interpretation that ignores centuries of jurisprudence recognizing inclusive citizenship grounded in common law jus soli principles. Through analysis of founding-era voting records, treaty practice, federal recognition doctrines, common law presumptions of freedom, and Supreme Court jurisprudence, this Article proves that the original constitutional order was not racially exclusionary—and that attempts to make it so are anti-originalist, historically false, and legally incoherent.
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