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The Supreme Court’s recent return to the birthright-citizenship debate has put a living question of law squarely back in the national spotlight, and conservatives are right to ask a simple, pointed question: what would Justice Scalia have done? The Court will have to reckon with decades of precedent and with the plain language of the Fourteenth Amendment, and every conservative who values textualism should pay attention to how originalist reasoning is wielded in this fight.
Any honest conversation about birthright citizenship must begin with United States v. Wong Kim Ark, the 1898 decision that settled for more than a century that most people born on American soil are citizens regardless of their parents’ status. That precedent is not some random liberal invention; it is the legal foundation that anchors the Citizenship Clause and frames every argument for or against changing the rule.
Justice Scalia’s judicial philosophy was fierce about giving words their ordinary meaning and about stopping judges from sneaking policy preferences into constitutional interpretation, and that methodological fidelity complicates any attempt to predict his vote. To textualists, the phrase “born … in the United States” reads plainly and broadly, and Scalia often insisted that the text — not speculative legislative aims or modern policy anxieties — should carry the day. Conservatives who respect limits on judicial lawmaking should remember that commitment when judging how to frame their legal arguments.
But reasonable, serious originalists have fought one another over the narrow clause “and subject to the jurisdiction thereof,” arguing for a narrower original meaning that might exclude children of temporary or unlawful visitors. That scholarly debate has practical consequences: the recent litigation pressing to narrow birthright citizenship leans heavily on historical scholarship and contested readings of the 1866 debates — a project that some conservatives back and others fear will blow up the rule of law. The constitutional question cannot be settled by political fury alone; it turns on careful historical and textual work.
Watching the Court’s proceedings, attentive Americans witnessed justices — sometimes even those normally labeled “liberal” — engage in the kind of textual and historical questioning Scalia prized, which shows how messy and unpredictable contests over originalism can be in practice. The media loves to reduce this to partisan theater, but the stakes are real: whether the nation retains a clear, administrable rule or adopts a murky, retroactive standard that sows chaos in millions of lives. Conservatives should demand clarity, not cleverness, from judges.
Patriots who revere Scalia’s legacy must hold two truths at once: defend principled textualism and resist judicial activism that substitutes policy preferences for the Constitution’s plain words. If conservatives want a different citizenship rule, the right avenue is legislative reform or a constitutional amendment — not judicial micromanagement done in the shadow of politics. In the meantime, fight smart, defend borders, and insist that judges apply law, not ideology, when deciding who is and who is not American.
