Many legal scholars believe the issue was settled by an 1898 decision of the U.S. Supreme Court involving a man born in the United States to Chinese parents who lived here legally.
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After a trip abroad, Wong Kim Ark was blocked from re-entering the country on the grounds that he was not a citizen. He fought back and won. By a 6-2 vote, the court said the 14th Amendment applied to virtually everyone born here, except for children of enemies of the U.S. or of foreign diplomats, or children born on Native American reservations, which were considered sovereign entities.
“The amendment, in clear words and in manifest intent, includes the children born within the territory of the United States of all other persons, of whatever race or color, domiciled within the United States,” the court concluded.
Nearly 100 years later, in 1982, the Supreme Court used language that seemed to indicate the protection applied to children of illegal immigrants as well.
In ruling that Texas must provide a free public education to undocumented children, the court said in a footnote that “no plausible distinction with respect to Fourteenth Amendment ‘jurisdiction’ can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful.”
But because the statement was made in a footnote, it does not count as binding precedent.
Even so, to many legal scholars, the Supreme Court has settled the issue. “I think it’s straightforward,” says Prof. David Martin a former general counsel of the Immigration and Naturalization Service, now at the University of Virginia law school.
But some conservatives argue that the court has never explicitly answered thequestion and that citizenship should be based on mutual consent, applying in cases when parents agree to submit themselves to US law in return for the privilege of having their children declared citizens.
“In reality, birthright citizenship is incompatible not only with the text of the citizenship clause but, more fundamentally, with the principle of consent -- one of the bedrocks of republican government,” according to Prof. Edward Erler of California State University, San Bernardino.
Proposals to limit birthright citizenship, or to state specifically who should benefit, have been introduced in past sessions of Congress but have never gotten very far.
And legal experts caution that restricting citizenship could produce a backlash.
“There is a certain illogic to the very broad birthright citizenship rule we have,” says the University of Virginia’s David Martin. “But it has served society well by helping the younger generation identify with this country instead of remaining alienated.”
In some European nations that do not have a similar law, “second-and-third generation children are very disaffected, and it’s a big social problem in those countries,” Martin said.
Even some supporters of ending birthright citizenship warn that ending it abruptly would have negative consequences.
“The citizenship change would best be packaged with an amnesty for long-term settled illegals, so as to avoid the immediate growth of a U.S.-born illegal alien population that would result if we were to change the birthright rule without first reducing the number of illegal aliens,” according to Mark Krikorian of the Center for Immigration Studies.
Pete Williams is an NBC News correspondent who covers the Justice Department and the Supreme Court, based in Washington.