Why are GOP candidates questioning birthright citizenship?

The 2016 presidential race has spawned one of the more explosive policy debates in recent times. Last week, Donald Trump said children born in the United States to illegal immigrants should not be granted automatic citizenship.

While politicians and pundits disagree on whether the Constitution grants citizenship to anyoneborn in this country, legal scholars are locking horns over the issue, as well.

The 14th Amendment, ratified just after the Civil War, gave citizenship to freed African-American slaves. It also righted a terrible wrong committed by the Supreme Court in 1857, said Ronald Rotunda, a professor at Chapman University.

“The idea was to overturn Dred Scott v. Sandford, where the Supreme Court said that black people, even freed slaves, could never become citizens,” Rotunda said.

The 14th Amendment grants citizenship to all people born in the United States and “subject to the jurisdiction thereof.” That last phrase is what’s causing friction in the birthright citizenship debate.

In 1898, the Supreme Court weighed in on the question in the case United States v. Wong Kim Ark. Wong was born in the United States to Chinese parents here legally, but the government denied him citizenship.

J. Christian Adams of the Election Law Center said in that case, the high court ruled only on the citizenship of one class of immigrants: “What the court decided back then was that the children of a permanent U.S. legal resident, someone who’s the equivalent of a green-card holder, the children of somebody who’s a green card holder in the United States, is a citizen because those parents have subjected themselves to the jurisdiction of the United States. What wasn’t settled in that case was what happens when somebody is born in the United States to parents who are here improperly.”

But Rotunda said that case drew a clear line between parents who could not be citizens because they were subject to a different sovereign nation and their children, who were citizens because they were born in the U.S.

“If they were not citizens, they wouldn’t have a stake in this country,” he said. “We have other countries, like Japan, where people live there for generations and are citizens of no place—not of Japan because Japan doesn’t recognize birthright citizenship, not of the host country, their home country they don’t recognize people born abroad. This has helped our country assimilate these people. They grow up. They become Americans.”

This latest immigration debate could end up being just another election-season flash in the pan. But if Congress decides to test the language of the 14th Amendment by voting to deny U.S. citizenship to children whose parents are here illegally, the Supreme Court is sure to have another landmark legal case to decide.

Listen to Jim Henry’s report about birthright citizenship on The World and Everything in It.