The First Amendment Warning America Is Ignoring

Trump Lost Birthright Citizenship. But That’s Not the Whole Story.

In January 2025, a few days after President Trump signed his executive order attacking birthright citizenship, I wrote one of the first essays [https://israelbalderas.substack.com/p/my-grandmothers-bravery-and-the-battle]on this newsletter. It began with a sentence that was not really about law at all: My grandmother was very brave. I wrote those words because before I could explain the Fourteenth Amendment [https://www.archives.gov/milestone-documents/14th-amendment], before I could talk about United States v. Wong Kim Ark [https://supreme.justia.com/cases/federal/us/169/649/], before I could analyze executive power or constitutional text, I needed readers to understand what this issue meant in human terms. In 1948, my grandparents left Juchipila, Zacatecas, Mexico, and moved to Juárez, just across the border from El Paso, Texas. They opened a small convenience store — an abarrotes — and tried to build something better for their family. My uncle was born in Juárez. But when my grandmother was pregnant with my mother, she made a decision that changed the trajectory of our family. A month before my mother’s birth, she crossed into El Paso and stayed with her sister. In January 1949, my mother was born on American soil. Because of the Fourteenth Amendment, she became an American citizen. That one act of courage set in motion everything that followed. My mother grew up as an American citizen. She later helped her parents gain legal residency. She earned a master’s degree in education while raising my sister and me as a single parent. My sister became an immigration attorney. I became a lawyer, a professor, and someone who teaches students why constitutional words matter. So when President Trump signed an executive order on his first day back in office declaring that some children born in the United States would no longer be treated as citizens, I did not see it as an abstract policy fight. I saw it as a direct challenge to families like mine. Yesterday, the Supreme Court answered that challenge. In Trump v. Barbara, the Court struck down the executive order and held that children born in the United States to parents who are unlawfully or temporarily present are citizens at birth under the Fourteenth Amendment. Chief Justice John Roberts wrote the majority opinion, joined in full by Justices Sonia Sotomayor, Elena Kagan, Amy Coney Barrett, and Ketanji Brown Jackson. Justice Brett Kavanaugh agreed the order was unlawful under federal statute, though he did not join the constitutional holding. Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch dissented. (CBS News [https://www.cbsnews.com/news/supreme-court-birthright-citizenship-trump-decision/]) The headline is simple: Trump lost. But the story underneath the headline is bigger than that. The Supreme Court did not create a new right. It did not invent a new theory of citizenship. It did not hand immigrants some new benefit that had never existed before. It reaffirmed the constitutional promise that has stood since the Fourteenth Amendment: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof,” are citizens. That promise was born out of one of the darkest chapters in American law. The Fourteenth Amendment was written in the shadow of Dred Scott, the 1857 decision that said Black Americans could not be citizens. The Citizenship Clause was a rejection of that world. It rejected the idea that citizenship depends on bloodline, caste, ancestry, or whether those in power believe your family truly belongs. That is why this case matters so much. Trump’s executive order tried to do by presidential command what the Constitution does not permit. The order said citizenship would not automatically extend to a child born in the United States when the mother was unlawfully present and the father was not a citizen or lawful permanent resident, or when the mother was lawfully but temporarily present and the father was not a citizen or lawful permanent resident. (The White House [https://www.whitehouse.gov/presidential-actions/2025/01/protecting-the-meaning-and-value-of-american-citizenship/]) Read that carefully. The executive order did not simply target immigration policy. It tried to make the legal status of the parent determine the constitutional identity of the child. That is the line the Court refused to cross. The mother may still be undocumented. The father may still lack lawful permanent status. Immigration law still applies. Nothing about the ruling erases the government’s power to enforce immigration laws. But the child born here is a citizen. That is the point. The Court protected the child from being made legally homeless because of the parent’s status. Had the Court gone the other way, it would have opened the door to a permanent underclass: children born here, raised here, educated here, subject to American laws, but denied membership in the only country they have ever known. That is not just a legal problem. That is the architecture of caste. And that is why Roberts’ opinion is so important. He does not just recite doctrine. He walks through the history and shows that the anti-birthright-citizenship argument has always depended on the same fear: that some people are too foreign, too different, too culturally alien to become one of us. In the late nineteenth century, the target was Chinese immigrants. In Wong Kim Ark, the Supreme Court held that a man born in San Francisco to Chinese parents was a citizen under the Fourteenth Amendment. The country had been told then, too, that these families could never truly belong. The Court rejected that argument then. It rejected it again yesterday. Roberts’ most powerful sentence may be this one: “Citizenship, then and now, was the right to have rights — to freely participate in our political community.” (CBS News [https://www.cbsnews.com/news/supreme-court-birthright-citizenship-trump-decision/]) That is what my grandmother understood before she could have put it in constitutional terms. She understood that citizenship is not just paperwork. It is possibility. It is protection. It is the legal foundation on which a family can build a future. And this is where the political reaction becomes revealing. Parts of the right are furious — not because the Court changed the law, but because it refused to change the law for them. Some Republican and conservative figures described the ruling as a betrayal, an attack on sovereignty, or a disaster for the country. (The New Republic [https://newrepublic.com/post/212543/republican-reaction-supreme-court-ruling-birthright-citizenship?utm_source=chatgpt.com]) Vice President J.D. Vance reportedly called the decision “preposterous” while also pointing to a “silver lining” in the closeness of the constitutional vote. (New York Post [https://nypost.com/2026/06/30/us-news/vance-argues-there-is-a-big-silver-lining-in-supreme-courts-preposterous-ruling-in-birthright-citizenship-case/?utm_source=chatgpt.com]) That backlash tells us something important. For years, conservatives have told the country that judges should follow the text, follow the history, and resist the temptation to rewrite the Constitution based on policy preferences. Fine. Then look at this case. The text says “all persons born.” It does not say “all persons born to lawful parents.” It does not say “all persons born to domiciled parents.” It does not say “all persons born to parents the president considers sufficiently attached to the United States.” Those extra words came from the executive order, not from the Constitution. So when Chief Justice Roberts and Justice Barrett followed the text and history to a result that angered the political right, the reaction was immediate. They were not treated as judges applying a conservative legal method. They were treated as traitors to a political cause. That is the real warning sign. A justice is not supposed to be loyal to the president who appointed her. A court is not supposed to serve the movement that celebrates its confirmations. The oath is to the Constitution. That used to be the whole point. To be clear, this ruling does not end the fight. Trump has already urged Congress to act, claiming that no “long and unwieldy Constitutional Amendment” is necessary. But that claim runs into the basic problem created by the Court’s majority: if the Fourteenth Amendment itself guarantees birthright citizenship, Congress cannot erase that guarantee by ordinary legislation. (CBS News [https://www.cbsnews.com/news/supreme-court-birthright-citizenship-trump-decision/]) That is why Kavanaugh’s separate opinion matters. He agreed the executive order violated federal law, but he would have avoided the constitutional question and left Congress more room to act. Roberts, Barrett, and the Court’s three liberal justices went further. They said the Constitution itself protects the citizenship of these children. (CBS News [https://www.cbsnews.com/news/supreme-court-birthright-citizenship-trump-decision/]) So yes, the ruling was 6–3 in judgment. But constitutionally, the center of gravity was 5–4. That should sober everyone up. Birthright citizenship survived. But it survived by a narrower constitutional margin than many Americans probably realize. Three justices would have allowed the executive order to stand at least in significant part. A fourth would have struck it down only under federal statute while leaving Congress room to try again. So this was a victory. But it was also a warning. The question underneath this case is not going away. It is the same question I asked in January 2025 when I wrote about my grandmother. Who counts as American? Is America a place you belong to because of an idea, or because of your bloodline? My grandmother answered that question with her courage. The Fourteenth Amendment answered it after the Civil War. Wong Kim Ark answered it during the era of Chinese exclusion. And yesterday, in Trump v. Barbara, the Supreme Court answered it again. America is not supposed to be a bloodline. It is supposed to be a promise. My grandmother believed in that promise. She crossed a border carrying more than a child. She carried a hope that this country would be large enough, fair enough, and faithful enough to let her family become part of its story. Yesterday, the Supreme Court said that hope still counts. And for families like mine, that is not just constitutional law. That is our life. This is a public episode. If you would like to discuss this with other subscribers or get access to bonus episodes, visit israelbalderas.substack.com [https://israelbalderas.substack.com?utm_medium=podcast&utm_campaign=CTA_1]

The Democrats' Two-State Problem

Leading up to the Fall 2026 elections, you will see the Democratic Party try to run two opposite campaigns at the same time. In the end, it won’t work. In Maine, the message is all about the bro culture. Graham Platner, who just won the Democratic Senate nomination [https://www.axios.com/2026/06/10/democrats-graham-platner-maine-senate-primary], is being sold as the party’s answer to Donald Trump—a fighter who can’t (or I should say won’t) be embarrassed. Through primary day, he’s survived a parade of scandals, and thanks to his win, treats those scandals as evidence of his strength. The list of answerables is not exhaustive: sexist online posts, a chest tattoo that resembled a Nazi symbol, sexting while married, and troubling accounts from former partners are just a few of the life choices we know so far. Yes, he disputes some of it and denies the worst. But notably, he hasn’t apologized his way toward the center. Remember, toughness means shrugging it off. After his victory, he was brazen enough to tell a journalist the controversies have only “strengthened” his campaign. Like another supposed tough guy who’s schtick helped him get to the White House twice, Graham happily dismisses any reporting on his character flaws as a politically motivated attack. And his reward: the Senate Democratic leadership lined up behind him the morning after he won. The implicit theory is unmistakable. The answer to Trump, in Maine, is a tougher Trump of the party’s own. Now, the national pundits, the political establishment, they keep looking for that one story, that one headline, that one moment in my life that they can define the campaign by. But in trying so hard to understand me, they fail to understand that this is not about me at all. This is a movement about us. -Graham Platner Now drive south to Texas, and the political message inverts. There, the Democrats’ rising star, State Representative James Talarico, is selling the opposite product. His pitch is that strength has been misdefined—that leadership is not domination or humiliation or the hourly performance of toughness. Republicans have mocked him for it, questioning his masculinity [https://thehill.com/opinion/campaign/5910513-gop-attacks-talarico-masculinity/] and calling him too soft for Texas. [https://19thnews.org/2026/05/texas-senate-race-manliness-testosterone/] His response is that Texans are exhausted by the strongman act and hungry for something gentler: decency, service, a politician who does not need to make voters feel small in order to feel large. So which is it? Are American voters worn out by cruelty and starving for character, that would be the Texas pitch? Or has character stopped mattering, leaving only the question of who hits hardest, the Maine pitch? These are not two flavors of the same argument. They are contradictory accounts of what the electorate wants and what this political moment requires. And the Democratic party is making both, in two states, in the same election cycle, in public. It can’t be both. Here is where I think Democrats have made a deeper error than mere inconsistency, an error about the lesson they believe Trump taught. The Maine theory rests on a reading of the last decade that goes like this: Trump proved that character no longer matters, that a candidate can survive anything, that shamelessness is a kind of superpower. If that is the lesson, then the rational move is to build your own version of him and point it at the other side. But that misreads why Trump won. Trump never asked Americans to believe he was good. He asked them to believe he was theirs; a weapon aimed at people they feared more than they feared him. The voters who chose him were not retiring the idea of character. They were making a threat assessment. Yes, he’s reckless, they concluded, but the other side is worse. That’s not a verdict that character has ceased to matter. It’s a verdict about which danger to run from first. A gesture severed from its purpose was never the living thing to begin with. A Democratic Trump does not inherit Trump’s appeal; it merely hands Republicans the one argument Trump himself never had to answer and surrenders the very high ground the party is trying to claim eighteen hundred miles away in Texas. You can’t credibly campaign as the antidote to cruelty in one state while nominating its mirror image in another and expect voters to grade each race in isolation. They don’t live in isolation. Rather, they watch national news and they compare notes. And this is the part that should worry Democratic strategists most, because it’s not really about Platner, or Talarico, or any single nominee. Every party runs flawed candidates; voters forgive a great deal. You don’t usually lose an election by believing the wrong thing. You lose by believing two opposite things and hoping no one lines them up side by side. That’s the trap. When the Texas voter and the Maine voter finally compare what they were told, the thing they’ll notice is not a difference of regional emphasis. It’s that the party appears to have meant neither sermon—that it was saying whatever the room required. And that’s the one thing a character argument can’t survive, because the entire premise of “we’re better than this” is that you mean it when it is inconvenient. When it costs you a Senate seat. When it’s one of your own. The oldest test of a principle was never whether you apply it to your opponents. It’s whether you apply it to your allies. Over the next five months, Democrats are at risk of failing that test in front of the entire country and calling it strategy. Thanks for reading BEYOND THE TALKING POINTS! Subscribe for free to receive new posts and support my work. This is a public episode. If you would like to discuss this with other subscribers or get access to bonus episodes, visit israelbalderas.substack.com [https://israelbalderas.substack.com?utm_medium=podcast&utm_campaign=CTA_1]

'The Claw' on the White House Lawn

When President Donald J. Trump was asked recently about the UFC arena rising on the South Lawn of the White House, he reached for an unexpected historical comparison [https://www.pbs.org/newshour/politics/trump-compares-white-house-ufc-cage-to-eiffel-tower-says-maybe-well-never-ever-take-it-down]. The Eiffel Tower, he noted, was originally intended to be temporary. Built for the 1889 World’s Fair in Paris, the structure was supposed to be dismantled after the exposition ended. Instead, it remained, eventually becoming perhaps the most recognizable symbol of France itself. Then Trump turned to the arena being constructed outside the Executive Mansion. “Maybe we’ll never ever take it down, [https://www.theguardian.com/sport/2026/jun/03/donald-trump-ufc-arena-white-house-permanent]” he said. Whether the remark was serious, sarcastic, or simply another improvisational Trumpian riff hardly matters. What matters is that his mind instinctively connected a temporary UFC arena nicknamed “The Claw” to one of the world’s great national monuments. Such comparison is absolutely absurd. Strangely, it’s also revealing. “…you know we’re building something in front of the White House that’s quite attractive to a lot of people….and I’m looking at it and maybe we’ll never ever take it down.” President Donald Trump likening “The Claw” to the Eiffel Tower. [https://www.tiktok.com/@realdonaldtrump/video/7646865974712470815?lang=en] The Eiffel Tower was built to showcase French engineering, industrial achievement, and national ambition at the height of the nineteenth century. The structure rising on the White House lawn was designed by UFC CEO Dana White to host a cage fight. Yet both, in Trump’s telling, belonged to the same category: spectacles that attract attention. [https://www.hollywoodreporter.com/business/business-news/inside-ufc-white-house-fight-dana-white-details-1236611686/] That distinction may explain why the image of a UFC cage standing beside the White House has generated such strong reactions. The fight itself is almost beside the point. The more interesting question is what Americans believe the White House is supposed to represent. I found myself thinking about that question after making what I assumed was an innocuous joke on Facebook. News reports about the UFC event had already saturated social media, and the story seemed almost impossible to parody. There would be thousands of spectators, military guests, enormous television audiences, and enough staging equipment to transform one of the country’s most recognizable civic spaces into something resembling a championship fight venue. So I wondered aloud whether we should simply embrace the concept. Why Stop At UFC? “Honestly,” I posted on Facebook, “there’s a lot of untapped potential here. If we’re going all in, why stop at UFC?” Why not stock the newly renovated Reflecting Pool [https://apnews.com/photo-gallery/lincoln-memorial-reflecting-pool-renovation-photo-gallery-ad66a11c12cd17d2a92deb6a312585ac] with bass and allow Bass Pro Shops to sponsor a fishing tournament. Or maybe, we can hold a monster-truck rally near the Rose Garden. “What other events should we turn the White House into?” I asked my Facebook audience. The first responses arrived exactly as intended. Friends offered increasingly ridiculous suggestions. Someone proposed sprint-car races around the Washington Monument. Another transformed the White House into a carnival midway through a digitally altered image. For a brief moment, Americans were doing what Americans have traditionally done best: laughing at themselves. Then the mood changed. As evidenced by the screen grab posted above from my Facebook page, ,ore than one hundred people responded to the post, with a surprising number of them quite furious. Not about the UFC fight itself but about the joke. The comments quickly migrated from fishing tournaments and monster trucks to drag queens, Joe Biden, cultural elites, patriotism, and the grievances of the past decade. One commenter informed me that my post was the dumbest thing he had read all day. Another suggested that liberals should die. What fascinated me was not the caustic anger directed at what appeared to be a humorous post. Rather, tt was the target of the anger. Almost nobody wanted to discuss the UFC event. The cage was everywhere in the conversation and nowhere in it at the same time. The real argument over “The Claw” concerned identity. For some Americans, the White House hosting a UFC fight represents the democratization of an institution long associated with elite culture. For others, it represents the conversion of a civic symbol into entertainment. What appeared at first to be a debate about a sporting event quickly revealed itself to be a debate about belonging, status, and who gets to define American culture. The UFC fight is not the story. The story is what Americans see when they look at it. Some see a celebration, while others see a warning, and still others see a joke. What almost everyone sees is themselves. That may be why Trump’s Eiffel Tower comparison lingered in my mind long after I first read it. Monuments tell us something about the societies that build them. They reveal what a culture admires, what it values, and what it hopes future generations will remember. The Eiffel Tower became a monument because France wanted the world to see its ingenuity. The question raised by “The Claw” on the South Lawn of White House is simpler and more unsettling. What does America want the world to see now? Thanks for reading BEYOND THE TALKING POINTS! Subscribe for free to receive new posts and support my work. This is a public episode. If you would like to discuss this with other subscribers or get access to bonus episodes, visit israelbalderas.substack.com [https://israelbalderas.substack.com?utm_medium=podcast&utm_campaign=CTA_1]

The First Amendment Warning America Is Ignoring

At first glance, this may look like a conversation about religion and politics. I think it’s actually a much bigger conversation about democracy itself and what happens when political power starts sounding sacred. I’ve been thinking a lot about the role of religion in public life, especially in a free society that cherishes freedom of expression. Not because I’m uncomfortable with religion in public life. I’m not. In fact, I think the First Amendment strongly protects religious expression, and I think the Supreme Court has often been right to push back when governments become openly hostile to faith. But I do think there’s a dangerous line democracies can cross when political leaders begin sounding spiritually untouchable; when criticizing politicians starts feeling almost immoral, disloyal or dare I say, blasphemous. That’s very different from religious freedom. And historically, free societies get into trouble when political power starts wrapping itself too tightly in sacred language and imagery. The First Amendment protects freedom of religion. But it also protects the freedom to question power, disagree openly, and live as equal citizens even when we believe radically different things. That tension—between faith, freedom, and political power—may be one of the most important conversations America needs to have right now. Thanks for reading BEYOND THE TALKING POINTS! Subscribe for free to receive new posts and support my work. This is a public episode. If you would like to discuss this with other subscribers or get access to bonus episodes, visit israelbalderas.substack.com [https://israelbalderas.substack.com?utm_medium=podcast&utm_campaign=CTA_1]

TikTok, Porn-gating and the First Amendment: How 2025 Rewired Free Speech

Beyond the First Podcast, with First Amendment scholar Chris Terry. I’m going to say something that sounds dramatic, but I mean it plainly: 2025 is the year the internet’s First Amendment footing started to shift. It’s not because speech disappeared or because the government passed one giant “censorship law.” But because the Supreme Court signaled - quietly and almost politely - that the internet may no longer get the kind of “newspaper-level” protection many of us have assumed since the late 1990s. And once that protection starts wobbling, everything else gets easier to regulate. If you felt this year like free speech became less “a right” and more “terms and conditions apply,” you’re not crazy. What you’re noticing is a structural change. In my latest Beyond the First podcast episode, I talk with my friend, and University of Minnesota media law scholar, Chris Terry about why the Supreme Court’s decision in Free Speech Coalition v. Paxton is being mis-sold to the public. Most people hear: “Oh, that’s the porn case.” Texas passed an age verification law so kids can’t access adult sites. End of story, right? Common sense. Protect children. Move on. But that’s not what makes this case consequential. So if you want to understand what actually changed in 2025, and what’s about to get tested in 2026, sit down and listen. This episode will give you the framework, not just the headlines. And I promise: you’ll walk away with better questions. This is a public episode. If you would like to discuss this with other subscribers or get access to bonus episodes, visit israelbalderas.substack.com [https://israelbalderas.substack.com?utm_medium=podcast&utm_campaign=CTA_1]