Throughout this country's history, the fundamental legal principal governing Citizenship has been that birth within the territorial limits of the United States confers United States citizenship. The Constitution itself rests on this principle of the Common Law. (1) As Justice Noah Swayne wrote in one of the first judicial decisions interpreting the Civil Rights Act of 1866, (2) the word "Citizens" under our constitution and laws means free inhabitants born within the United States or naturalized under the laws of Congress. We find no warrant for the opinion that this great principle of the common law has ever been changed in the United States." (3) When Justice Swayne wrote these words, the nation was only beginning to recover from a great Civil War sparked in no small part by the Supreme Court's tragically misguided decision in the Dred Scott case. (4) That decision sought to modify the founders' rule of citizenship by denying American citizenship to a class of persons born within the United States. In response to Dred Scott and to the Civil War,

Congress enacted the 1866 Act, and Congress and the States adopted the Fourteenth Amendment in order to place the right to citizenship based on birth within the jurisdiction of the United States beyond question. Any restriction on the right contradicts both the Fourteenth amendment and the underlying principle that the amendment safeguards.
First because the rule of citizenship acquired by birth within the United States is the law of the Constitution, it cannot be changed through legislation but only by amending the Constitution, American history and our constitutional traditions. Affirming the citizenship of African-Americans that Dred Scott had denied, in 1862 President Lincoln's Attorney General wrote an opinion for the Secretary of the Treasury asserting "[a]s far I know …you and I have no better title to the citizenship which we enjoy".

...although persons .of Japanese descent were not eligible to become citizens through
naturalization, a person of Japanese descent is a citizen of the United States if he was
born within the United States, citing Wong Kim Ark); 4 Charles Gordon et aI., lmmigration Law and Procedure § 92.03[2][e] (rev. ed. 1995) (noting that any uncertainty regarding the applicability of the jus soli rule to children born in this country was finally resolved by the Fourteenth Amendment and the Supreme Court's decision in U..S. v. Wong Kim Ark.

There is now no doubt that the constitutional rule of universal citizenship for all persons born in the United States is unaffected by the status of their parents, except in minimal situations. Thus American citizenship is acquired by children born in the United States, even though their parents were always aliens, and even if the parents were themselves ineligible to become citizens of the United States. Nor has the acquisition of citizenship been affected by the circumstance that the child's alien parents were in the United States temporarily or even illegally. at the time the child was born.")
(footnotes ommitted)

Persons born in the United States, including children born to aliens.

The Civil Rights Act of 1866 provides that "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," 1866 Act. § 1, 14 Stat. at 27.

During the debates on the Act, the Chair of the House Judiciary Committee stated that the provision defining citizenship is "merely declaratory of what the law now is," and he cited, among other authorities, a quotation from William Rawle, whose constitutional law treatise was one of the most widely respected antebellum works: "Every person born within the United States, its Territories, or districts, whether the parents are citizens or aliens, is a natural-born citizen in the sense of the Constitution, an entitled to all the rights and privileges appertaining to that capacity." (10)

The Fourteenth Amendment initially contained no definition of citizenship. Senator Howard of Michigan proposed to insert the definition that became the opening sentence of the Fourteenth Amendment:

This amendment which I have offered is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States.(11)

While the Constitution recognized citizenship of the United States in prescribing the qualifications for President, Senators, and Representatives, it contained no definition of citizenship until the adoption of the Fourteenth Amendment in 1868. Prior to that time, citizenship by birth was regulated by common law. And the common law conferred citizenship upon all persons (7) born within the territory of the United States, whether children of citizens or aliens. (8)

16 Peter H. Schuck & Rogers M Smith, Citizenship Without Consent: Illegal Aliens in the Amencan Polity (1985).

17 Arthur C.Helton, Citizenship Without Consent, 19 N. Y.U. J. Int'l L. & Pol. 221,226 (1986) (book review). For incisive critiques of Schuck and Smith's work, see also,
David A. Martin, Membership and Consent: Abstract or Organic?, 11 Yale J. Int'l L. 278 (1985) (book review); Gerald L. Neuman, Back to Dred Scott?, 24 San Diego L. Rev. 485 (1987) (book review).

18 David Howarth, Citizenship Without Consent, 46 Cambridge L.1. 169, 170 (1987)
(book review).

19 169 U.S. at 675.