Throughout the history of the United States, the fundamental legal principle governing citizenship has been that birth within the United States grants U.S. citizenship; although
enslaved persons and children of enslaved mothers, under the principle of
partus sequitur ventrem, were excluded. Also, until the 20th century, the citizenship status of a married woman generally depended on her husband's status, meaning that a woman born a citizen could lose her citizenship by marrying an alien. After the
American Civil War ended in 1865, the United States did not grant citizenship to former
slaves until the enactment of the
Civil Rights Act of 1866, whose grant of citizenship was subsequently confirmed by the
Fourteenth Amendment. American Indian tribal members are not covered specifically by the constitutional guarantee. Those living in tribes on reservations were generally not considered citizens until passage of the
Indian Citizenship Act of 1924, although by that time nearly two-thirds of American Indians were already citizens.
English common law Birthright citizenship, like much United States law, has its roots in
English common law. ''
Calvin's Case'', 77 Eng. Rep. 377 (1608), was particularly important, because 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". (Since January 1, 1983, under the
British Nationality Act 1981, people born in the British Isles, including the UK, receive citizenship at birth only if at least one of their parents is a British citizen or holds
settled status.) This same principle was well-established in the antebellum United States. Justice
Joseph Story described the rule in ''Inglis v. Trustees of Sailor's Snug Harbor'': Justice Story described as exceptions to the rule the children of ambassadors and the children of occupying enemy soldiers. As these exceptions were narrow, the rule was quite generous in scope. As one antebellum American treatise put it: In the 1844 New York case of
Lynch v. Clarke, the court held that the common law rule applied in the United States and that a child born in United States of a temporary visitor to the country was a natural-born citizen of the United States under this rule. Chancellor James Kent, in his influential
Commentaries on American Law, framed the rule in terms similar to what would become the citizenship clause of the Fourteenth Amendment: "Natives", he said, "are all persons born within the jurisdiction of the United States," while "[a]n alien", conversely, "is a person born out of the jurisdiction of the United States." The Supreme Court stated that the rule was "ancient and fundamental", i.e., well-established common law, in 1898: "the Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes."
United States v. Wong Kim Ark, 169 U.S. 649 (1898).
Federal law The
Naturalization Act of 1790 () provided the first rules to be followed by the
United States in the granting of national
citizenship. While the law did not specifically prevent women from having their own citizenship, the law recognized only the authority of a husband if a woman was married. Under the rule of
coverture, the control of the physical body of married woman, as well as rights to her person or property, were the possession of her husband. Her loyalty to her spouse was deemed more significant than any obligation she might have to the state. Judicial rulings on domestic relations held that infants, slaves, and women were unable to participate in public life, because they lacked sufficient judgement and could not control either their own will or property. Since that time,
laws concerning immigration and naturalization in the United States have undergone a number of revisions. Provisions of the Naturalization Act of 1855 specified that a woman married to a native-born citizen or a naturalized alien, or a child born on foreign soil, but to a citizen father, were citizens, as long as they were white.
Dred Scott v. Sandford Justice
Roger B. Taney in the majority opinion in
Dred Scott v. Sandford, , held that, under the Constitution, African Americans, whether slave or free, had never been and could never become citizens of the United States. The political scientist Stuart Streichler writes that Taney's decision was based on "a skewed reading of history". Justice
Benjamin R. Curtis in his dissent showed that under the
Articles of Confederation, free blacks had already been considered citizens in five states and carried that citizenship forward when the Constitution was ratified. 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 has left to the States the determination what person, born within their respective limits, shall acquire by birth citizenship of the United States ... Justice John McLean, in his dissent, said of Dred Scott himself: "Being born under our Constitution and laws, no naturalization is required, as one of foreign birth, to make him a citizen." In 1856,
Dred Scott v. Sandford was about a slave named Dred Scott. He was living in Illinois at the time, where slavery was prohibited by the Missouri Compromise. Scott sued for his freedom, arguing that, because he lived in a free state, he was a free man. After he lost the case, Scott filed a new case. When it reached the Supreme Court, Chief Justice Taney ruled not only that black people could not be citizens, but that slaves were property, and the Fifth Amendment's provision that no one could be deprived of property without due process meant that any law that would dispossess a slave owner of slave property was unconstitutional.
1862 opinion of the Attorney General of the United States In 1862,
Secretary of the Treasury Salmon P. Chase sent a question 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,..." [italics in original] In the course of that opinion, Bates commented at some length on the nature of citizenship, and wrote,
Civil Rights Act of 1866 The
Civil Rights Act of 1866 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." ("Indians not taxed" referred to
Native American tribal members living on reservations.) Representative James F. Wilson of Iowa, upon introducing the citizenship clause of the Act, stated that it was "merely declaratory of what the law now is," and recounted at length the common law history of birthright citizenship. Representative John Bingham of Ohio affirmed that the clause was "simply declaratory of what is written in the Constitution," with specific reference to the "natural-born citizen" qualification for presidential office.
Fourteenth Amendment to the United States Constitution Since the adoption of the
Fourteenth Amendment to the
Constitution on July 9, 1868, citizenship of persons born 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." The law allowed Americans to voluntarily give up their citizenship. Though it did not provide specific requirements to do that, subsequent court cases, such as that of
Nellie Grant Sartoris, ruled that marriage to an alien was a voluntary expatriation. Further clarifications from rulings maintained that a married woman could lose her citizenship if she lived abroad with her alien spouse or if her marriage automatically bestowed upon her the nationality of her husband. The Expatriation Act of 1868 led President
Ulysses S. Grant to write in 1873, that the United States had "led the way in the overthrow of the feudal doctrine of perpetual allegiance". Edward J. Erler of
California State University, San Bernardino, and Brook Thomas of the
University of California at Irvine, have argued that this Act was an explicit rejection of birth-right citizenship as the ground for American citizenship, basing that argument on the debate that surrounded the passage of this act. Professor
Garrett Epps of the
University of Baltimore disagrees: "The Expatriation Act is not, as Erler imagines, 'a necessary companion piece to the citizenship clause.' In fact, there is no relationship at all between the two. The act was written in a different year, by different authors, on a different subject, and in a different Congress, than the Fourteenth Amendment." American courts had long recognized that the rule of perpetual allegiance "does not stand upon the same reason or principle as the common law doctrine of allegiance by birth, and does not follow from the adoption of the latter.", concluding in 1844 that, "A diversity of opinion and of practice on the subject of perpetual allegiance prevailed in the colonies and in the states, under the old Confederation. [...] [I]n the national government, the common law rule of perpetual allegiance did not prevail; while the universal prevalence of the rule of allegiance by birth in all the colonies and states up to [1789], would be a convincing argument that such rule became the national law. The Attorney General clarified this remark as follows: The child born of alien parents in the United States is held to be a citizen thereof, and to be subject to duties with regard to this country which do not attach to the father. The same principle on which such children are held by us to be citizens of the United States, and to be subject to duties to this country, applies to the children of American fathers born without the jurisdiction of the United States, and entitles the country within whose jurisdiction they are born to claim them as citizen and to subject them to duties to it. Such children are born to a double character: the citizenship of the father is that of the child so far as the laws of the country of which the father is a citizen are concerned, and within the jurisdiction of that country; but the child, from the circumstances of his birth, may acquire rights and owes another fealty besides that which attaches to the father. That same year, the
trial of Susan B. Anthony resulted in a ruling by
Associate Justice of the Supreme Court of the United States Ward Hunt, in the U.S. Circuit Court for the Northern District of New York. He held that neither the Fourteenth Amendment, which prohibited states from abridging the rights and privileges of citizens, nor the Fifteenth Amendment, which granted citizens the right to vote, applied to Anthony, because voting rights and conditions were defined by the state and not the national government. Since denying the vote on the basis of sex was not prohibited by the Fifteenth Amendment and sanctions for violating the second section of the Fourteenth Amendment only defined breaches to male citizens' rights, Hunt determined that a state could define unequal rights to different people.
Expatriation Act of 1907 The
Expatriation Act of 1907 codified that women lost their citizenship upon marriage to a non-citizen. It did not matter if they resided in the United States or abroad It also prevented immigrant women from being able to obtain their own US nationality, if their spouse was not or could not be naturalized, because he was racially excluded, was an anarchist, or was a practitioner of
polygamy. If her husband later was able to acquire US citizenship, a wife automatically gained his new nationality. Women did not have their own nationality papers, instead they were required to provide a copy of their marriage record and husband's proof of citizenship. provided "That all noncitizen Indians born within the territorial limits of the United States be, and they are hereby, declared to be citizens of the United States". This same provision (slightly reworded) is contained in present-day law as section 301(b) of the
Immigration and Nationality Act of 1965 (). This legislation was necessary to grant citizenship to members of U.S. tribal nations due to the ruling of the Supreme Court of the United States in
Elk v. Wilkins (1884), holding that Indian tribal members born under the jurisdiction of their respective tribes were not citizens of the United States by the Citizenship Clause of the Fourteenth Amendment. By conferring citizenship on all U.S. tribal members by statute, the legislation guaranteed that all U.S. tribal nation members and their posterity would thereafter be U.S. citizens.
The Equal Nationality Act of 1934 The Equal Nationality Act of 1934 allowed a married woman with children who had been born abroad to transmit her citizenship to her children, provided the mother had resided in the United States before the child was born. The law was not retroactive, thus children born before 1934 had difficulty in proving claims to derivative citizenship from their mother. The maternal derivative citizenship for children born abroad before 1934 was not confirmed until 1989. The 1940 law allowed all women who lost their citizenship because of marriage to repatriate without regard to their marital status upon swearing the
oath of allegiance. It provided that children born outside of the United States had derivative citizenship if at least one of its unmarried parents was a citizen of the United States and had resided in the country for one year prior to the child's birth. If the parents were married, the citizen parent had to have lived five years in the United States after attaining age 14 and cumulatively have resided for ten years in the United States. Exception was made for active duty military personnel's service to be considered residence in the United States. The residency requirement in the United States meant that if a citizen parent, who was not in the military, was under the age of 19 when the child was born abroad, their child could not derive citizenship from the citizen parent. Though amended in 1978 and 1984, the discrimination based upon marital status and age remained unchanged until 1986. At that time, the law was amended to shorten the parent's residency time in the United States to five years, with at least 2 of those years being after the 14th birthday of the parent. ==U.S. Supreme Court case law==