During Wednesday’s Supreme Court hearing over the scope of birthright citizenship, Justice Samuel Alito drew on an analogy once used by the late Justice Antonin Scalia to illustrate how textualism applies to modern issues. The justices were reviewing whether the 14th Amendment’s citizenship clause extends to children born in the United States to illegal immigrants—a question central to President Donald Trump’s effort to restrict automatic citizenship. According to Fox News, Alito explained that Scalia’s teaching offered guidance for interpreting constitutional language in light of developments unforeseen by the framers.
“Justice Scalia had an example that dealt with this situation,” Alito recalled. “He imagined an old theft statute that was enacted well before anybody conceived of a microwave oven. And then, afterwards, someone is charged with the crime of stealing a microwave oven. And this fellow says, ‘Well, I can’t be convicted under this because the microwave oven didn’t exist at that time.’ And he dismissed that. There’s a general rule there, and you apply it to future applications.”
Alito said the same principle could apply to birthright citizenship: the amendment must be interpreted according to its text, not limited by conditions that existed in 1868.
Expanding on that point, Alito noted that large-scale illegal immigration “was basically unknown at the time when the 14th Amendment was adopted.” According to the outlet, “Alito acknowledged historical exceptions to the amendment, including children born to foreign diplomats and certain Native Americans, and he questioned whether illegal immigrants’ children could be considered a comparable modern-day exception.”
Solicitor General John Sauer, representing the Trump administration, supported the analogy. “I strongly agree with the way you framed it—that there is a general principle,” he told Alito, defending Trump’s executive order that sought to end automatic citizenship for children born to illegal immigrants or temporary visitors.
However, most justices expressed skepticism toward the administration’s arguments. Justice Elena Kagan challenged the solicitor general, saying his reasoning strayed from Alito’s line of thought. “Your whole theory of the case is built on that group … so you can’t really be going with Justice Alito’s theory,” Kagan said. “You must be saying that there is a principle that was there at the time of the 14th Amendment.”
According to Fox News, although Sauer’s views seemed to align with Alito’s, the majority of justices showed doubt toward Trump’s arguments, with Alito and Justice Clarence Thomas emerging as the two most inclined to support his stance.