Once when Jacob was cooking stew, Esau came in from the field, and he was exhausted. And Esau said to Jacob, “Let me eat some of that red stew, for I am exhausted!” (Therefore his name was called Edom.) Jacob said, “Sell me your birthright now.” Esau said, “I am about to die; of what use is a birthright to me?” Jacob said, “Swear to me now.” So he swore to him and sold his birthright to Jacob. Then Jacob gave Esau bread and lentil stew, and he ate and drank and rose and went his way. Thus Esau despised his birthright.
The Old Testament, Genesis 29-34.
What price would you put on your birthright? A bowl of soup? Something more? How about less? It seems the answer depends on 1) what the birthright is, and 2) whether it has any real or perceived value. For Esau, soup did the trick. Of course, the lesson in that story was that Esau was neither taking a realistic view of his need nor appreciating the value of the birthright - and it cost him everything.
On the heels of the Supreme Court’s Trump v. CASA, Inc., the ‘Birthright Citizenship Case',’ the value of birthrights and our inclination to overvalue need and undervalue worth weighs heavy.
Here is the general rundown: The Constitution made clear that being born in the United States carried a degree of privilege. In setting out the qualifications for the Presidency, the Constitution has three requirements - that an individual be over thirty-five, that they be natural born, and that they reside in the United States for 14 years.1 In setting out the requirements, the Constitution clearly originally recognized both naturalized citizens and birthright citizens (Jus Sanguinis and Jus Soli). There was, of course, an enormous problem. African Americans and Native Populations were excluded - and even though women and non-property-owning white males were ‘citizens', their citizenship was … how should we put it … less. Still, to be born in the United States was to be a natural born citizen.
Apart from that basic idea of naturalized and birthright citizenship (holdovers from the Common Law in England where peoples born in areas of British control were considered natural-born subjects and afforded the protection of the Crown), the Constitution did not say much about ‘citizenship’ and States made their own laws regarding the subject.
That became very problematic after the Civil War. After the 13th Amendment abolished slavery, former Southern States tried to treat the abolition of slavery as a mere technicality and maintain white supremacy through law. Those laws, ‘Black Codes’ as they were known, limited property ownership, limited employment, banned interracial marriage, and created a maze of activities (such as ‘vagrancy’) which resulted in harsh punishments.2 Three years after the abolition of slavery, the 14th Amendment was ratified as a direct response to those state efforts to maintain slavery through law enforcement. That Amendment removed any doubts that ‘birthright’ citizenship applied to all - making it clear to all that:
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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Twenty-seven years later, San Francisco-born Wong Kim Ark, the son of Chinese (non-citizen) immigrants, was stopped from re-entering the Country after a trip to China. The government argued it could keep him out because his parents were not citizens, so neither was he (sound familiar?). He sued and, eventually, the Supreme Court ruled that the status of his parents was immaterial because he had been born in the United States, and thus was a citizen.
Since Wong Kim Ark (in 1898), 414 cases have cited the decision and followed it. 127 years of precedent with all clear that birthright citizenship is a thing. This year, President Donald Trump decided it was not.
On January 20, 2025, among a flurry of Executive Orders, right alongside bringing back Mount McKinley and creating the Gulf of America, the President said that the Supreme Court and 150 years of history was wrong.3
On January 21, 2025, refugee advocacy organizations challenged the Order in Court, arguing that it was facially unconstitutional and asking the Court to enjoin (block) enforcement of the Order pending the outcome of the lawsuit. That request to the Court is for a ‘preliminary injunction’ - it is ‘preliminary’ because you are asking the Court to do something (in this case ‘enjoin’ or stop something) before there is a full trial about the issue. It is a big deal, because our default is that you need to prove your case before anyone is punished or told that they cannot take action — the exception is where you can show a Court that allowing the other side to act will cause you irreparable harm, that you are likely to win the case when the Court hears it fully (that you are likely to ‘succeed on the merits’), that when you balance out the interests of the two sides (yours in stopping the action and the other side’s in taking action), your interests are stronger, and that enjoining the action is in the public interest.
Additional lawsuits (in other parts of the Country) followed, all asking Courts to temporarily enjoin enforcement of the Order until the merits could be heard. In every case, Courts agreed that the Order was obviously unconstitutional, the harms irreparable, the equities in the Plaintiffs’ (the ones bring the lawsuit) favor, and stopping things until the case was heard in the public interest. In the CASA case, the Court ordered that the Administration could not enforce the Executive Order anywhere in the United States.
The Administration appealed, and the cases moved up from the District Courts to the Courts of Appeal. In each case, the Administration lost. The Administration appealed again, and the cases (joined together because they were about the same thing) went from the Courts of Appeal to the Supreme Court.
At the Supreme Court, the Administration argued that the Executive Order was not unconstitutional, but they did not ask the Supreme Court to find otherwise — instead, the Administration asked the Supreme Court to rule that Judges should not be allowed to enjoin action throughout the Country, they should only be able to stop activity (through an injunction) in the specific case they are hearing.
What does that mean?
Well, it means that in the CASA case, Judge Boardman (the Judge who heard the case in the federal courthouse in Greenbelt, Maryland) could find that the Order was clearly unconstitutional, but she would only be able to tell the Government that they could not enforce the Order in her Court’s District in Maryland. It is not clear whether the Administration thinks she would have the ability to stop enforcement of the Order throughout the Maryland Court’s ‘Circuit,’ the Fourth Circuit Court of Appeals. But the bottom line is that the Administration argues that no matter how obviously unconstitutional an Executive Order might appear, they should be allowed to enforce it everywhere else (until a Court there has a lawsuit where they also enjoin enforcement).
As Justice Jackson said during the oral argument in the case, that sets up a ‘catch me if you can’ scenario where an Administration can do anything it wants, no matter how unconstitutional, until Courts in each jurisdiction put a stop to it. But that is not all - what is going on is more nefarious. When asked by Justice Barrett (who seemed rather incredulous at the answer), General Sauer (the individual who argues Supreme Court cases on behalf of the government is called the Solicitor General) actually said that the Administration ‘generally’ follows decisions of Courts under the Supreme Court, but not always. Given that astounding reveal, a decision that an Executive Order was unconstitutional would have to come from the Supreme Court in order to guarantee that the Administration would stop trying to enforce it nationwide (provided that General Sauer was accurate in saying that the Administration would follow Supreme Court decisions).
The problem, as Justices Sotomayor and Kagan pointed out, is that the Supreme Court would never be in a position to render a decision on those unconstitutional Executive Orders - because those opposing the Orders would win their cases and would never appeal (the party losing the case appeals, not the winner) and the Administration could choose to just not appeal an order to avoid a ‘nationwide’ decision it did not like - they could keep taking Court by Court losses with decisions they chose to follow or not. There would, in effect, be no curb on Administration action writ large.
Say an Administration decides to issue an Executive Order stating that all firearms will be confiscated, or saying that Baptist churches need to immediately close, or saying that no protests regarding tax policy will be allowed … all would be blatantly unconstitutional, but a Federal Judge would not be able to say that the Orders could not be enforced throughout the Country - only in their District. In other Districts, the Government could keep on collecting guns, closing churches, and punishing speech — at least until someone there could get a lawsuit filed and have it heard. Such a situation would be ridiculous … at least in cases where there is a blatant violation of a constitutional right.
The Administration is arguing for a system where it just needs to stay a step ahead of the Courts - those it chooses to listen to - even where it means violating the explicit language of the Constitution. Sadly, many seem ok with that approach. Dislike of differing political views is so strong that many seem inclined to allow the Administration to take any action so long as that action is directed at the ‘other.’ Other skin colors, other gender identities, other native languages, other loves, other lifestyles — action against the other is tolerated, even celebrated. Like Esau and his hunger, many are so consumed by their cravings - their anger, jealousy, and fear of the other - that they are wiling to sell their birthright on the cheap. They satisfy their cravings with their children’s and grandchildren’s rights.
In accepting this two-America worldview where fundamental rights in one place do not equal fundamental rights in others, many do not recognize the true value of their birthright. As we have seen throughout the past 250 years - our fundamental rights as Americans have no worth if they are extended to all. The freedom of speech has no value unless that freedom protects speech we dislike (or even despise). Our ‘citizenship’ has no value unless everyone’s citizenship has value. We have no protection from arbitrary government action unless everyone (even those suspected of crimes) has the right to force the government to prove its case. Habeus Corpus offers nothing to me if it offers nothing to you.4
That is the fundamental misunderstanding many make in this polarized climate. If you imagine our fundamental rights as sticks in a bundle, some seem to think that different ‘groups’ each have separate bundles. They even assume that you can take sticks out of someone else’s bundle one while keeping your own (maybe even adding to it). That is not the way it works, even though it might seem that way in the short term. When you remove the sticks from someone else’s bundle, you have really also taken them from your own. You just have not realized that they are gone yet.
The truth is that if the Administration’s argument would carry the day, it would just seem like there were two Americas for a while. The fact that someone might not be born a citizen in Texas but be born a citizen in New Jersey, the fact that someone in California might not be able to own a gun while someone in Georgia could, or the fact that freedom of association, freedom of religion, and freedom of speech might mean one thing for me in Maryland and something else as I drive forty minutes away all might make it seem like we live in two separate countries … for a while.
Eventually, we all would realize that we live in one America, just one in which we have traded our birthright for a bowl of soup when we only thought we were hungry.
https://constitution.congress.gov/browse/essay/artII-S1-C5-1/ALDE_00013692/#essay-5
Vagrancy laws criminalized unemployment or idleness with a penalty of being placed into forced labor. African Americans were required to sign annual labor contracts with white plantation owners with any refusal penalized with, you guessed it, being placed into forced labor. As would continue for generations, the slavery system was replaced with a forced labor system based on enforcement of laws targeting the newly ‘freed’ slaves.
The text of the Order reads, in part:
Among the categories of individuals born in the United States and not subject to the jurisdiction thereof, the privilege of United States citizenship does not automatically extend to persons born in the United States: (1) when that person’s mother was unlawfully present in the United States and the father was not a United States citizen or lawful permanent resident at the time of said person’s birth, or (2) when that person’s mother’s presence in the United States at the time of said person’s birth was lawful but temporary (such as, but not limited to, visiting the United States under the auspices of the Visa Waiver Program or visiting on a student, work, or tourist visa) and the father was not a United States citizen or lawful permanent resident at the time of said person’s birth.
Casa, Inc. v. Trump, No. DLB-25-201, 2025 U.S. Dist. LEXIS 20921, at *5-6 (D. Md. Feb. 5, 2025)
Habeus Corpus, Latin for ‘you have the body,’ is known as the Great Writ, what allows all persons to challenge the Government to prove to a Court why they should be imprisoned (detained, deported, etc.). The writ is detailed in Article I of the Constitution, which spells out the powers of the Legislature (Congress). Habeus Corpus has its foundation in the Magna Carta - the watershed document in British History protecting the rights of the People from the King (the Executive). From the time of the Magna Carta, Habeus Corpus was only able to be suspended by the Parliament as it was a protection against the King’s power and thus it would not have made sense for the King to be able to suspend that protection against his own power. The exception in United States history to the Legislature being the only body able to suspend the writ occurred during the Civil War when Congress was out of session and President Lincoln suspended the writ - an action which was then ratified by Congress when it was back in session.