A constitutional amendment passed nearly 150 years ago to give U.S. citizenship to freed slaves has become a hot-button issue in the 2016 presidential campaign.
Last week, leading Republican presidential contender Donald Trump unveiled his campaign’s immigration plan, including a controversial proposal to end granting “birthright citizenship” – automatic citizenship to any child born on U.S. soil.
After the Civil War ended in 1865, the U.S. Congress passed, and the states later ratified, the , which was designed to grant citizenship to, and protect the civil liberties of, newly emancipated slaves.
Trump, and several other Republican candidates, takes issue with the automatic granting of citizenship to children born to undocumented migrants.
Trump said he doesn’t believe the amendment grants American citizenship to such children, whom he calls “anchor babies,” a term many consider to be derogatory.
He has said “it would take too long” to amend the constitution but would seek a court review of the amendment as president.
"This [birthright citizenship] remains the biggest magnet for illegal immigration," Trump’s .
Suzanna Sherry, professor of law at Vanderbilt Law School in Nashville, Tennessee, said Trump has only two options to address the 14th Amendment: amend it or persuade the Supreme Court that previous interpretations of the law are incorrect.
Amending the U.S. Constitution is an arduous process, requiring a two-thirds majority vote in both the Senate and House of Representatives, and then approval by three-fourths of U.S. states.
“The Supreme Court has never explicitly ruled on whether people who are born here [in the United States] of undocumented parents are citizens, but the language of the amendment is pretty clear,” Sherry said.
She cited the first line of the 14th Amendment: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the state wherein they reside.
Pointing to history, Sherry said the 14th Amendment’s intent was to ensure that African-Americans were considered citizens of both the United States and the state in which they lived.
The 1857 Dred Scott case had ruled that African-Americans were not citizens of a state.
In general, “Congress is permitted to give citizenship to anybody it wants, but it is not permitted to take citizenship away from somebody the constitution gives it to,” she said.
“Of all the amendments to the constitution that have to do with rights, all but one expanded rights,” Sherry said. “The only one that contracted rights was Prohibition – the 18th Amendment that banned alcohol. But it was repealed 25 years later.
“That history tells us something,” she said, “about whether we should be amending the constitution that contracts rights.”
Polly J. Price, a law professor at Emory University School of Law in Atlanta, said most scholars believe you have to amend the constitution to take away the automatic award of citizenship at birth.
Price added that most people don’t understand the that would be created by repealing the 14th Amendment.
Repeal would affect everyone, Price said, adding that anyone in the U.S. needing to prove their citizenship – when applying for a driver’s license or a Social Security number, for example – would be required to prove their parentage.
“Under the proposal, if you repeal it [the amendment], then I have to prove that one of my parents” was a U.S. citizen or permanent resident, she said.
To prove that status, someone would need their parent’s birth certificate, and “the farther back you go, the harder it is to prove that,” Price said.
Many countries have poor record-keeping, meaning birth records may be hard to produce. Also, someone may not know much about their parent’s background, she said.
Getting rid of the amendment would also create for both long-term undocumented migrants and their children born in the U.S., Price said.
In terms of deportation, a country of origin may not claim an undocumented migrant who has lived in the U.S. for a long time, she said, and a parent’s country of origin may not deem a child born in the U.S. as a citizen of their country.
“There are a lot of problems with being stateless,” she said.
In recent days, Trump and fellow Republican candidate Jeb Bush have been criticized for using the term “anchor baby.”
Migrants' rights groups say the term is offensive and used by anti-immigration activists to describe U.S.-born children of undocumented migrants, usually from Latin America.