Throughout much of the history of the United States, the fundamental legal principle governing citizenship has been that birth within the territorial limits of the United States confers United States citizenship,[12] although the United States did not grant citizenship to all black former slaves until the passage of the Civil Rights Act of 1866, which was subsequently confirmed by the Fourteenth Amendment. American Indian tribal members are not covered specifically by the constitutional guarantee, but they were made citizens automatically by the Indian Citizenship Act of 1924.
[edit] English common law
Birthright citizenship, as with much United States law, has its roots in English common law.[13] Calvin’s Case, 77 Eng. Rep. 377 (1608), was particularly important as it established that under English common law “a person's status was vested at birth, and based upon place of birth--a person born within the king's dominion owed allegiance to the sovereign, and in turn, was entitled to the king's protection."[14] This same principle was adopted by the newly formed United States, as stated by Supreme Court Justice Noah Haynes Swayne: "All persons born in the allegiance of the king are natural- born subjects, and all persons born in the allegiance of the United States are natural-born citizens. Birth and allegiance go together. Such is the rule of the common law, and it is the common law of this country…since as before the Revolution." United States v. Rhodes, 27 Fed. Cas. 785 (1866).
[edit] Federal law
The Naturalization Act of 1790 (1 Stat. 103) provided the first rules to be followed by the United States in the granting of national citizenship. Since that time, laws concerning immigration and naturalization in the United States have undergone a number of revisions.
[edit] 1857 opinion of Supreme Court Justice Benjamin R. Curtis
In his opinion dissenting from the decision in Dred Scott v. Sanford 60 U.S. (How. 19) 393 (1857) Justice Benjamin R. Curtis wrote in considerable detail on this topic. His writing there is too lengthy to requote here in entirety; partially requoted, Justice Curtis wrote,
The first section of the second article of the Constitution uses the language "a natural-born citizen." It thus assumes that citizenship may be acquired by birth. Undoubtedly, this language of the Constitution was used in reference to that principle of public law, well understood in the history of this country at the time of the adoption of the Constitution, which referred Citizenship to the place of birth. At the Declaration of Independence, and ever since, the received general doctrine has been, in conformity with the common law, that free persons born within either of the colonies, were the subjects of the King; that by the Declaration of independence, and the consequent acquisition of sovereignty by the several States, all such persons ceased to be subjects, and became citizens of the several States, [...] .
The Constitution having recognized that persons born within the several States are citizens of the United States, one of four things must be true:
First. That the constitution itself has described what native-born persons shall or shall not be citizens of such State, and thereby be citizens of the United States; or,
Second:. That it has empowered Congress to do so; or,
Third. That all free persons, born within the several States, are citizens of the United States; or,
Fourth. That it is left to each State to determine what free persons, born within its limits, shall be citizens of such State, and thereby be citizens of the United States.
If there is such a thing as Citizenship of the United States acquired by birth within the States, which the Constitution expressly recognizes, and no one denies, then those four alternatives embrace the entire subject, and it only remains to select that one which is true.
[...]
The answer is obvious. The Constitution has left to the States the determination what person, born within their respective limits, shall acquire by birth citizenship of the United States; [...] [15][italics in original]
[edit] 1862 opinion of the U.S. Attorney General
In 1862, Secretary of the Treasury Salmon P. Chase sent a query to Attorney General Edward Bates asking whether or not "colored men" can be citizens of the United States. Attorney General Bates responded on November 29, 1862, with a 27 page opinion concluding, "I conclude that the free man of color, mentioned in your letter, if born in the United States, is a citizen of the United States, ... .[16][italics in original]" In the course of that opinion, Bates commented at some length on the nature of citizenship, and wrote,
... our constitution, in speaking of natural born citizens, uses no affirmative language to make them such, but only recognizes and reaffirms the universal principle, common to all nations, and as old as political society, that the people born in a country do constitute the nation, and, as individuals, are natural members of the body politic.
If this be a true principle, and I do not doubt it, it follows that every person born in a country is, at the moment of birth, prima facie a citizen; and who would deny it must take upon himself the burden of proving some great disfranchisement strong enough to override the natural born right as recognized by the Constitution in terms the most simple and comprehensive, and without any reference to race or color, or any other accidental circumstance.[17][italics in original]
[edit] Civil Rights Act of 1866
This act declared, "all persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States."[18]
[edit] Fourteenth Amendment to the United States Constitution
Since the adoption of the Fourteenth Amendment to the Constitution on July 9, 1868, birthright citizenship in the United States has been controlled by its Citizenship Clause, which states:
"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.[3]"