United States Constitution

Though the notion of a a right to citizenship by virtue of birth was actually longstanding in the English common law (that body of law that formed the foundation of American law), its application before the passage of the 14th Amendment was inconsistent. In the Supreme Court case of Dred Scott v. Sanford (1857), the Court held that African Americans were not provided the guarantees of birthright citizenship. After the Civil War, therefore, this had to be repudiated. It was the 14th Amendment that did so.

The text of this Citizenship Clause is fairly straightforward and unqualified: “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.” Still, it has given rise to some, but not much, litigation. For example, the case of Elk v. Watkins (1884) stood for the proposition that Native Americans were not, in fact, automatically brought under the umbrella of U.S. citizenship (something that was remedies with a federal law in the 1920s). The case of United States v. Wong Kim Ark (1898) solidified the notion that the Citizenship Clause was to be broadly interpreted as including even those children born on American soil to foreign-born (and non-U.S. citizen) parents. In Afroyim v. Rusk (1967), the Court held that the Citizenship Clause also precluded the U.S. government from stripping citizenship from a citizen without a voluntary repudiation by that person (and in practice, this liberalized the policies and laws regarding multiple citizenship).