The Civil Rights Act of 1866 granted U.S. citizenship to all persons born in the United States "not subject to any foreign power".
[1][2] The framers of the Fourteenth Amendment sought to entrench the principle in the Constitution in order to prevent its being struck down by the Supreme Court or repealed by a future Congress.
Before the adoption of the Fourteenth Amendment, the antebellum United States generally embraced the common-law doctrine of citizenship by birth within the country.
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.
"[12] And Justice Benjamin Curtis, in his dissent, stated, "[I]t is a principle of public law, recognized by the Constitution itself, that birth on the soil of a country both creates the duties and confers the rights of citizenship.”[13]
During the American Civil War, Attorney General Edward Bates addressed an opinion letter to Treasury Secretary Salmon P. Chase, affirming the principle of birthright citizenship under the common law and touting its usefulness in the cause of racial equality:As far as I know, Mr. Secretary, you and I have no better title to the citizenship which we enjoy than the "accident of birth"-the fact that we happened to be born in the United States.
If this be a true principle, and I do not doubt it, it follows that every person born in the country is, at the moment of birth, prima facie a citizen; and he 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.
[14]After the Civil War, the U.S. Congress moved to grant citizenship to freed slaves, and to overrule the Dred Scott decision.
[15] 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.
In particular, the two exceptions to citizenship by birth for everyone born in the United States mentioned in the Act, namely, that they had to be "not subject to any foreign power" and not "Indians not taxed", were combined into a single qualification, that they be "subject to the jurisdiction" of the United States, and while Howard and others, such as Senate Judiciary Committee Chairman Lyman Trumbull of Illinois, the author of the Civil Rights Act, believed that the formulations were equivalent, others, such as Senator James R. Doolittle from Wisconsin, disagreed, and pushed for an alternative wording.
"[33] Senator Reverdy Johnson of Maryland commented that subject to the jurisdiction thereof in the proposed amendment undoubtedly meant the same thing as "not subject to some foreign power",[34] and Trumbull asserted that this was already true prior to the passage of the Civil Rights Act, but Senator Edgar Cowan of Pennsylvania disagreed, arguing that this was only true for the children of European immigrants.
[30] Senator John Conness of California expressed support for the Amendment for giving a constitutional basis for birthright citizenship to all children born in the United States to any parentage (including Chinese noncitizen residents who do not intend to reside permanently in the United States), even though he (and others) thought it had already been guaranteed by the Act,[35] whereas Cowan opposed the Amendment (and Act), arguing that it would have the undesirable outcome of extending citizenship to the children of Chinese and Romani immigrants.
[36] Most of the debate on this section of the Amendment centered on whether the wording in the Civil Rights Act or Howard's proposal more effectively excluded Indians on reservations and in U.S. territories from citizenship.
[39] The Citizenship Clause has been interpreted to the effect that children born on United States soil, with very few exceptions, are U.S. citizens.
Birthright citizenship for children born abroad to US citizen parents (jus sanguinis or "right of blood") is defined separately in federal law.
[41] In 1870, the Senate Judiciary Committee also had expressed the proposition, saying: "the 14th amendment to the Constitution has no effect whatever upon the status of the Indian tribes within the limits of the United States".
More broadly, the court characterized the statement, All persons born in the United States, and subject to the jurisdiction thereof, are citizens of the United States as "the broad and clear words of the Constitution," ruling that Wong's U.S. citizenship had been acquired by birth and had not been lost or taken away by anything happening since his birth.
[45] A 2010 Congressional Research Service report observed that, though it could be argued that Congress has no power to define "subject to the jurisdiction" and the terms of citizenship in a manner contrary to the Supreme Court's understanding of the Fourteenth Amendment as expressed in Wong Kim Ark and Elk, since Congress does have broad power to pass necessary and proper legislation to regulate naturalization under the Constitution, Art.
[48][49] The same day, Civil Rights and Immigrant Advocates joined by state attorneys general sued him over this executive order, claiming that it is unconstitutional.
It is equally clear that the Clause does not tolerate a hierarchy of 45 subclasses of similarly situated citizens based on the location of their prior residence.
'[3]This observation by Gray about the term "natural-born citizen" was obiter dicta, since the case did not involve any controversy about presidential eligibility.