United States v. Wong Kim Ark
Encyclopedia
United States v. Wong Kim Ark, , was a United States Supreme Court
decision that set an important legal precedent
about the role of jus soli
(birth in the United States) as a factor in determining a person's claim to United States citizenship
. The citizenship status of Wong—a man born around 1871 to Chinese parents who were domiciled
in the United States—was challenged, based on an 1882 law restricting Chinese immigration and prohibiting immigrants from China
from becoming naturalized U.S. citizens. Eventually, this issue reached the Supreme Court, which ruled in Wong's favor, deciding that the citizenship language in the Fourteenth Amendment to the Constitution
could not be impaired in its effect by an act of Congress
.
The debate surrounding the Wong Kim Ark case highlighted disagreements over the precise meaning of the phrase subject to the jurisdiction thereof in the Fourteenth Amendment's Citizenship Clause
. Although the Supreme Court majority decided that this phrase referred to being subject to U.S. law—and thus chose to interpret the language of the amendment in a way (consistent with English common law) that granted U.S. citizenship to almost all children born on American soil—the court's dissenting minority believed that being subject to the jurisdiction of the United States meant not being subject to any foreign power—an interpretation grounded in international law
which would have excluded "the children of foreigners, happening to be born to them while passing through the country".
The parameters of birthright citizenship stated in the Wong Kim Ark decision have never subsequently been "seriously questioned by the Supreme Court, and have been accepted as dogma by lower courts". Since Wong's parents were legal residents of the United States at the time of his birth, some legal scholars have argued in recent years that the Wong Kim Ark precedent does not apply when alien parents are in the country illegally, and that U.S.-born children of illegal immigrants do not have a constitutional entitlement to automatic citizenship at birth. Attempts have been made from time to time in Congress either to restrict birthright citizenship by statute
, or by overriding both the Wong Kim Ark ruling and the Citizenship Clause itself through a new amendment to the Constitution, but no such proposal has succeeded.
Wong traveled to China in 1890, and when he returned to the U.S., authorities granted him entry "upon the sole ground that he was a native-born citizen of the United States." Four years later, Wong, who was employed in San Francisco as a cook, sailed to China on another temporary visit in 1894. When he returned to the U.S. in August 1895, he was detained at the Port of San Francisco
by the Collector of Customs
, who denied him permission to enter the country, arguing that Wong "although born in the city and county of San Francisco, state of California, United States of America, is not, under the laws of the state of California and of the United States, a citizen thereof, the mother and father of the said Wong Kim Ark being Chinese persons, and subjects of the emperor of China, and the said Wong Kim Ark being also a Chinese person and a subject of the Emperor of China."
(specifically, its Citizenship Clause
); the Burlingame Treaty
between China and the United States; and the Chinese Exclusion Act
.
The Fourteenth Amendment was ratified in 1868, after the Civil War
and the accompanying abolition of Negro
slavery throughout the United States. The first sentence of the Fourteenth Amendment—known as the Citizenship Clause—states that: "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." This new provision of the Constitution superseded the United States Supreme Court's 1857 ruling, Dred Scott v. Sandford
, which had held that slaves, former slaves, and their descendants were not eligible to be U.S. citizens.
Also in 1868, a treaty (named the Burlingame Treaty
after one of the American negotiators) allowed trade and migration between the United States and China. However, it contained a provision stating that "nothing herein contained shall be held to confer naturalization ... upon the subjects of China in the United States."
In response to the post-Civil War
economic decline and increasing animosity towards Chinese immigrants, Congress
enacted the Chinese Exclusion Act
in 1882. This law limited entry into the United States of persons of the Chinese race. Chinese immigrants already in the U.S. were allowed to stay, but they were ineligible for naturalization
, and if they left the U.S., they needed to obtain approval all over again if they subsequently wished to return. Chinese laborers and miners were specifically barred from coming (or returning) to the U.S. under the terms of the law.
was filed on his behalf in federal district court. The arguments presented before the district court centered around how the phrase subject to the jurisdiction thereof in the Citizenship Clause should be interpreted in a situation involving a child born in the United States to alien parents: namely, whether it meant "'subject to the laws of the United States,' comprehending, in this expression, the allegiance that aliens owe in a foreign country to obey its laws" (an interpretation based on the common law
inherited by the United States from England); or whether it meant "to be subject to the political jurisdiction of the United States" (an interpretation based on international law
which would exclude parents and their children who owed allegiance to another country). This question had, up to that time, never been considered by the Supreme Court. However, following a precedent established in two cases previously decided by other federal courts—In re Look Tin Sing and Gee Fook Sing v. U.S.—the district court ruled that subject to the jurisdiction thereof referred to being subject to U.S. law; on this basis, the court sided with Wong Kim Ark, declaring him to be a citizen and ordering him to be released from custody.
The U.S. government appealed this ruling directly to the United States Supreme Court. The Supreme Court considered the key question in the case to be "whether a child born in the United States, of parents of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil[e] and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States" via the Fourteenth Amendment.
, who was joined by Justices David J. Brewer, Henry B. Brown, George Shiras Jr., Edward Douglass White
, and Rufus W. Peckham.
Upholding the concept of jus soli
(citizenship based on place of birth), the court's majority held that the Fourteenth Amendment's citizenship clause needed to be interpreted in light of English common law, which had included as subjects
virtually all native-born children, excluding only those who were (1) born to foreign rulers or diplomats, (2) born on foreign public ships, or (3) born to enemy forces engaged in hostile occupation of the country's territory. The court's majority held that the subject to the jurisdiction phrase in the Citizenship Clause excluded from U.S. citizenship only those persons covered by one of these three exceptions (plus a fourth—namely, that Indian tribes
"not taxed" were not considered subject to U.S. jurisdiction). The majority concluded that none of these four exceptions to U.S. jurisdiction applied to Wong; in particular, they observed that "during all the time of their said residence in the United States, as domiciled residents therein, the said mother and father of said Wong Kim Ark were engaged in the prosecution of business, and were never engaged in any diplomatic or official capacity under the emperor of China". As a result, the majority opinion concluded that Wong was a U.S. citizen from birth, via the Fourteenth Amendment, and that the restrictions of the Chinese Exclusion Act did not apply to him. An act of Congress, they held, does not trump the Constitution; such a law "cannot control [the Constitution's] meaning, or impair its effect, but must be construed and executed in subordination to its provisions."
In construing the Fourteenth Amendment, the Court in Wong Kim Ark made reference to a case pre-dating that amendment, namely The Schooner Exchange v. M'Faddon
. Relying heavily on the 1812 opinion by Chief Justice John Marshall
in The Exchange, the Court in Wong Kim Ark reiterated that, "The jurisdiction of the nation within its own territory is necessarily exclusive and absolute. It is susceptible of no limitation not imposed by itself."
was joined by Justice John Harlan
in a dissenting opinion which, in the words of one analyst, was "elaborately drawn and, for the most part, may be said to be predicated upon the recognition of the international law doctrine". Fuller argued that the history of U.S. citizenship law had broken with English common law tradition after independence
—citing as an example the embracing in the U.S. of the right of expatriation (giving up of one's native citizenship) and the rejection of the contrary British doctrine of perpetual allegiance. The minority argued that the principle of jus sanguinis
(that is, the concept of a child inheriting his or her father's citizenship by descent regardless of birthplace) had been more pervasive in U.S. legal history since independence.
Pointing to the language of the Civil Rights Act of 1866
, an act of Congress which declared to be citizens "all persons born in the United States and not subject to any foreign power, excluding Indians not taxed", and which was enacted into law only two months before the Fourteenth Amendment was proposed by Congress, the minority argued that "it is not open to reasonable doubt that the words 'subject to the jurisdiction thereof,' in the amendment, were used as synonymous with the words 'and not subject to any foreign power. In the view of the minority, excessive reliance on jus soli (birthplace) as the principal determiner of citizenship would lead to an untenable state of affairs in which "the children of foreigners, happening to be born to them while passing through the country, whether of royal parentage or not, or whether of the Mongolian, Malay or other race, were eligible to the presidency, while children of our citizens, born abroad, were not."
The dissenters acknowledged that other children of foreigners—including former slaves—had, through the years, acquired U.S. citizenship through birth on U.S. soil. But they still saw a difference between those people and U.S.-born individuals of Chinese ancestry, because of (1) strong cultural traditions discouraging Chinese immigrants from assimilating into mainstream American society, (2) Chinese laws of the time which made renouncing allegiance to the Chinese emperor a capital crime
, and (3) the provisions of the Chinese Exclusion Act making Chinese immigrants already in the United States ineligible for citizenship. The question for the court's minority was "not whether [Wong Kim Ark] was born in the U.S. or subject to the jurisdiction thereof ... but whether his or her parents have the ability, under U.S. or foreign law, statutory or treaty-based, to become citizens of the U.S. themselves".
As a result of Wong Kim Ark's U.S. citizenship being confirmed by the Supreme Court, three of his four sons (born in China) were subsequently allowed to settle in the United States as citizens: Wong Yook Sue (黃郁賜, wong11 yuk3 ti33); Wong Yook Thue (黃沃修, wong11 yuk3 sliu33); and Wong Yook Jim (黃沃沾, wong11 yuk3 zim33). A fourth son—his eldest, Wong Yoke Fun (黃毓煥, wong11 yuk3 von22)—was rejected by U.S. officials, who claimed to see discrepancies in the testimony at his immigration hearing and refused to accept Wong Kim Ark's claim that the boy was his son. At least one of the sons (the youngest, Wong Yook Jim) was still alive in 1998.
Current U.S. citizenship law acknowledges both citizenship through place of birth (jus soli) and citizenship inherited from parents (jus sanguinis). In the years since Wong Kim Ark, the concept of jus soli citizenship, as stated in this case, has "never been seriously questioned by the Supreme Court, and [has] been accepted as dogma by lower courts"; post-1898 citizenship cases "have focused predominantly on questions relating to what extent and in what manner Congress may regulate citizenship outside the principles stated in the Citizenship Clause". Before Wong Kim Ark, the Supreme Court had held in Elk v. Wilkins
, , that birthplace by itself was not sufficient to grant citizenship to an American Indian
; however, Congress subsequently granted full citizenship to American Indians via the Indian Citizenship Act of 1924
.
In addition to being cited in numerous Supreme Court cases dealing with citizenship, the Wong Kim Ark court's understanding of Fourteenth Amendment jurisdiction was also invoked in Plyler v. Doe
, , a case involving undocumented alien children (i.e., children born abroad who had come to the United States illegally along with their parents). A Texas
state law had sought to deny such children a public education, and the Texas government had argued that "persons who have entered the United States illegally are not 'within the jurisdiction' of a State even if they are present within a State's boundaries and subject to its laws". The Supreme Court's majority, however, rejected this view—finding instead that according to Wong Kim Ark, the Fourteenth Amendment's phrases subject to the jurisdiction thereof and within its jurisdiction were essentially equivalent, and that both referred primarily to physical presence and not to political allegiance; and, accordingly, that "no plausible distinction with respect to Fourteenth Amendment 'jurisdiction' can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful."
published in the San Francisco Chronicle
on March 30, 1898, expressed concern that the Wong Kim Ark ruling (issued two days previously) "may have a wider effect upon the question of citizenship than the public supposes". It called the reasoning behind the court's majority "a very broad generalization, which, it is to be feared, may apply to Indians as well as Chinese". Though noting that even "if native Indians, like native Chinese and Japanese, are finally endowed with citizenship it does not follow that they can vote", and that "[s]o long as the state can protect its ballot box it is safe from the more unpleasant features of Chinese and Indian citizenship", the editorial suggested that "it may become necessary for other reasons to amend the Federal Constitution and definitely limit citizenship to whites and blacks."
An unsuccessful effort was made in 1942 by the Native Sons of the Golden West
to convince the Supreme Court to revisit and overrule the Wong Kim Ark ruling, in a case (Regan v. King) challenging the citizenship status of roughly 2,600 U.S.–born persons of Japanese ancestry. Calling Wong Kim Ark "one of the most injurious and unfortunate decisions" ever handed down by the Supreme Court, the plaintiffs' attorney argued that this new case—involving "the citizenship and the right to citizenship of all peoples and all races who do not fall within the characterization or description of white people"—would give the court "an opportunity to correct itself" and recognize that the Fourteenth Amendment's citizenship clause "excludes the Chinese, the Japanese, Hindus, Hottentots and the islanders of the Pacific". A federal district court and the Ninth Circuit Court of Appeals rejected this contention, each citing Wong Kim Ark as a controlling precedent
, and the Supreme Court declined to hear the case.
" situation by some media correspondents and advocacy groups). Public debate over the issue has resulted in renewed discussion of the Wong Kim Ark decision.
Because Wong's parents were residing legally in the United States at the time of his birth, some legal scholars have argued in recent years that the Wong Kim Ark precedent does not apply when alien parents are in the country illegally. John C. Eastman
, a former dean of the Chapman University School of Law
, has argued that Wong Kim Ark does not entitle U.S.–born children of illegal immigrants to gain automatic citizenship because, in his opinion, being subject to the jurisdiction of the United States requires a status of "full and complete jurisdiction" that does not apply to aliens who are in the country illegally. Eastman further argues that the Wong Kim Ark decision was fundamentally flawed in the way it dealt with the concept of jurisdiction, and that the Indian Citizenship Act of 1924
—which followed Wong Kim Ark—would not have been necessary if Congress had believed "that the Citizenship Clause confers citizenship merely by accident of birth." A similar analysis of the jurisdiction question has been proposed by Peter H. Schuck and Rogers M. Smith
. According to law professor Lino Graglia
of the University of Texas, even if Wong Kim Ark settled the status of children of legal residents, it did not do so for children of illegal residents; Graglia asserts that the case weighs against automatic birthright for illegal immigrants because the Court denied such citizenship for an analogous group, namely "children of alien enemies, born during and within their hostile occupation". Richard Posner
, a judge of the Seventh Circuit Court of Appeals, has expressed a position similar to Graglia's, saying that "the situation we have today is absurd".
In response to public reaction against illegal immigration and fears that U.S.-born children of illegal immigrants could serve as links to permit legal residency and eventual citizenship for family members who would otherwise be ineligible to remain in the country, bills
have been introduced from time to time in Congress which have challenged the conventional interpretation of the citizenship clause of the Fourteenth Amendment and have sought to actively and explicitly deny citizenship at birth to U.S.-born children of foreign visitors or illegal aliens. As one example among many, the "Birthright Citizenship Act of 2009"—introduced in the House of Representatives
of the 111th Congress
as H.R. 1868, by Representative Nathan Deal
of Georgia
—was a failed attempt to exclude U.S.–born children of illegal immigrants from being considered subject to the jurisdiction of the United States for purposes of the Citizenship Clause. A similar proposal—named the "Birthright Citizenship Act of 2011"—was introduced in the House as H.R. 140 in the current (112th) Congress on January 5, 2011 by Representative Steve King
of Iowa
, and in the Senate as S. 723 on April 5, 2011 by Senator David Vitter
of Louisiana
.
Since an act of Congress challenging birthright citizenship for illegal immigrants might well be ruled an unconstitutional violation of the Citizenship Clause by the courts, proposals have also been made to amend the Constitution so as to override the Fourteenth Amendment's language and deny citizenship to U.S.-born children of illegal aliens or foreign visitors. For example, Senator Vitter of Louisiana introduced Senate
Joint Resolution
(S.J.Res.) 6 in the 111th Congress, but like H.R. 1868, it failed to reach the floor of either house of Congress before the 111th Congress adjourned on December 22, 2010. Vitter reintroduced this same proposed amendment as S.J.Res 2 in the current (112th) Congress on January 25, 2011.
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
decision that set an important legal precedent
Stare decisis
Stare decisis is a legal principle by which judges are obliged to respect the precedents established by prior decisions...
about the role of jus soli
Jus soli
Jus soli , also known as birthright citizenship, is a right by which nationality or citizenship can be recognized to any individual born in the territory of the related state...
(birth in the United States) as a factor in determining a person's claim to United States citizenship
Citizenship in the United States
Citizenship in the United States is a status given to individuals that entails specific rights, duties, privileges, and benefits between the United States and the individual...
. The citizenship status of Wong—a man born around 1871 to Chinese parents who were domiciled
Domicile (law)
In law, domicile is the status or attribution of being a permanent resident in a particular jurisdiction. A person can remain domiciled in a jurisdiction even after they have left it, if they have maintained sufficient links with that jurisdiction or have not displayed an intention to leave...
in the United States—was challenged, based on an 1882 law restricting Chinese immigration and prohibiting immigrants from China
China
Chinese civilization may refer to:* China for more general discussion of the country.* Chinese culture* Greater China, the transnational community of ethnic Chinese.* History of China* Sinosphere, the area historically affected by Chinese culture...
from becoming naturalized U.S. citizens. Eventually, this issue reached the Supreme Court, which ruled in Wong's favor, deciding that the citizenship language in the Fourteenth Amendment to the Constitution
Fourteenth Amendment to the United States Constitution
The Fourteenth Amendment to the United States Constitution was adopted on July 9, 1868, as one of the Reconstruction Amendments.Its Citizenship Clause provides a broad definition of citizenship that overruled the Dred Scott v...
could not be impaired in its effect by an act of Congress
United States Congress
The United States Congress is the bicameral legislature of the federal government of the United States, consisting of the Senate and the House of Representatives. The Congress meets in the United States Capitol in Washington, D.C....
.
The debate surrounding the Wong Kim Ark case highlighted disagreements over the precise meaning of the phrase subject to the jurisdiction thereof in the Fourteenth Amendment's Citizenship Clause
Citizenship Clause
The Citizenship Clause refers to the first sentence of Section 1 in the Fourteenth Amendment to the United States Constitution. This clause represented Congress's reversal of that portion of the Dred Scott v...
. Although the Supreme Court majority decided that this phrase referred to being subject to U.S. law—and thus chose to interpret the language of the amendment in a way (consistent with English common law) that granted U.S. citizenship to almost all children born on American soil—the court's dissenting minority believed that being subject to the jurisdiction of the United States meant not being subject to any foreign power—an interpretation grounded in international law
International law
Public international law concerns the structure and conduct of sovereign states; analogous entities, such as the Holy See; and intergovernmental organizations. To a lesser degree, international law also may affect multinational corporations and individuals, an impact increasingly evolving beyond...
which would have excluded "the children of foreigners, happening to be born to them while passing through the country".
The parameters of birthright citizenship stated in the Wong Kim Ark decision have never subsequently been "seriously questioned by the Supreme Court, and have been accepted as dogma by lower courts". Since Wong's parents were legal residents of the United States at the time of his birth, some legal scholars have argued in recent years that the Wong Kim Ark precedent does not apply when alien parents are in the country illegally, and that U.S.-born children of illegal immigrants do not have a constitutional entitlement to automatic citizenship at birth. Attempts have been made from time to time in Congress either to restrict birthright citizenship by statute
Statute
A statute is a formal written enactment of a legislative authority that governs a state, city, or county. Typically, statutes command or prohibit something, or declare policy. The word is often used to distinguish law made by legislative bodies from case law, decided by courts, and regulations...
, or by overriding both the Wong Kim Ark ruling and the Citizenship Clause itself through a new amendment to the Constitution, but no such proposal has succeeded.
Background
Wong Kim Ark (黃金德; Taishanese: wong11 gim33 'ak3) was born in San Francisco. Various sources state or imply his year of birth as being 1873, 1871, or 1868. His father (Wong Si Ping) and mother (Wee Lee) were immigrants from China and were not United States citizens.Wong traveled to China in 1890, and when he returned to the U.S., authorities granted him entry "upon the sole ground that he was a native-born citizen of the United States." Four years later, Wong, who was employed in San Francisco as a cook, sailed to China on another temporary visit in 1894. When he returned to the U.S. in August 1895, he was detained at the Port of San Francisco
Port of San Francisco
The Port of San Francisco lies on the western edge of the San Francisco Bay near the Golden Gate. It has been called one of the three great natural harbors in the world, but it took two long centuries for navigators from Spain and England to find the anchorage originally called Yerba Buena...
by the Collector of Customs
Customs
Customs is an authority or agency in a country responsible for collecting and safeguarding customs duties and for controlling the flow of goods including animals, transports, personal effects and hazardous items in and out of a country...
, who denied him permission to enter the country, arguing that Wong "although born in the city and county of San Francisco, state of California, United States of America, is not, under the laws of the state of California and of the United States, a citizen thereof, the mother and father of the said Wong Kim Ark being Chinese persons, and subjects of the emperor of China, and the said Wong Kim Ark being also a Chinese person and a subject of the Emperor of China."
Earlier legal developments
Three earlier developments in United States law would shape the subsequent course of events surrounding Wong Kim Ark: the Fourteenth Amendment to the United States ConstitutionFourteenth Amendment to the United States Constitution
The Fourteenth Amendment to the United States Constitution was adopted on July 9, 1868, as one of the Reconstruction Amendments.Its Citizenship Clause provides a broad definition of citizenship that overruled the Dred Scott v...
(specifically, its Citizenship Clause
Citizenship Clause
The Citizenship Clause refers to the first sentence of Section 1 in the Fourteenth Amendment to the United States Constitution. This clause represented Congress's reversal of that portion of the Dred Scott v...
); the Burlingame Treaty
Burlingame Treaty
The Burlingame Treaty, also known as the Burlingame-Seward Treaty of 1868, between the United States and China, amended the Treaty of Tientsin of 1858 and established formal friendly relations between the two countries, with the United States granting China most favored nation status...
between China and the United States; and the Chinese Exclusion Act
Chinese Exclusion Act (United States)
The Chinese Exclusion Act was a United States federal law signed by Chester A. Arthur on May 8, 1882, following revisions made in 1880 to the Burlingame Treaty of 1868. Those revisions allowed the U.S. to suspend immigration, and Congress subsequently acted quickly to implement the suspension of...
.
The Fourteenth Amendment was ratified in 1868, after the Civil War
American Civil War
The American Civil War was a civil war fought in the United States of America. In response to the election of Abraham Lincoln as President of the United States, 11 southern slave states declared their secession from the United States and formed the Confederate States of America ; the other 25...
and the accompanying abolition of Negro
Negro
The word Negro is used in the English-speaking world to refer to a person of black ancestry or appearance, whether of African descent or not...
slavery throughout the United States. The first sentence of the Fourteenth Amendment—known as the Citizenship Clause—states that: "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." This new provision of the Constitution superseded the United States Supreme Court's 1857 ruling, Dred Scott v. Sandford
Dred Scott v. Sandford
Dred Scott v. Sandford, , also known as the Dred Scott Decision, was a ruling by the U.S. Supreme Court that people of African descent brought into the United States and held as slaves were not protected by the Constitution and could never be U.S...
, which had held that slaves, former slaves, and their descendants were not eligible to be U.S. citizens.
Also in 1868, a treaty (named the Burlingame Treaty
Burlingame Treaty
The Burlingame Treaty, also known as the Burlingame-Seward Treaty of 1868, between the United States and China, amended the Treaty of Tientsin of 1858 and established formal friendly relations between the two countries, with the United States granting China most favored nation status...
after one of the American negotiators) allowed trade and migration between the United States and China. However, it contained a provision stating that "nothing herein contained shall be held to confer naturalization ... upon the subjects of China in the United States."
In response to the post-Civil War
American Civil War
The American Civil War was a civil war fought in the United States of America. In response to the election of Abraham Lincoln as President of the United States, 11 southern slave states declared their secession from the United States and formed the Confederate States of America ; the other 25...
economic decline and increasing animosity towards Chinese immigrants, Congress
United States Congress
The United States Congress is the bicameral legislature of the federal government of the United States, consisting of the Senate and the House of Representatives. The Congress meets in the United States Capitol in Washington, D.C....
enacted the Chinese Exclusion Act
Chinese Exclusion Act (United States)
The Chinese Exclusion Act was a United States federal law signed by Chester A. Arthur on May 8, 1882, following revisions made in 1880 to the Burlingame Treaty of 1868. Those revisions allowed the U.S. to suspend immigration, and Congress subsequently acted quickly to implement the suspension of...
in 1882. This law limited entry into the United States of persons of the Chinese race. Chinese immigrants already in the U.S. were allowed to stay, but they were ineligible for naturalization
Naturalization
Naturalization is the acquisition of citizenship and nationality by somebody who was not a citizen of that country at the time of birth....
, and if they left the U.S., they needed to obtain approval all over again if they subsequently wished to return. Chinese laborers and miners were specifically barred from coming (or returning) to the U.S. under the terms of the law.
Habeas corpus petition
Wong Kim Ark challenged the refusal to recognize his birth claim to U.S. citizenship, and a petition for a writ of habeas corpusHabeas corpus
is a writ, or legal action, through which a prisoner can be released from unlawful detention. The remedy can be sought by the prisoner or by another person coming to his aid. Habeas corpus originated in the English legal system, but it is now available in many nations...
was filed on his behalf in federal district court. The arguments presented before the district court centered around how the phrase subject to the jurisdiction thereof in the Citizenship Clause should be interpreted in a situation involving a child born in the United States to alien parents: namely, whether it meant "'subject to the laws of the United States,' comprehending, in this expression, the allegiance that aliens owe in a foreign country to obey its laws" (an interpretation based on the common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
inherited by the United States from England); or whether it meant "to be subject to the political jurisdiction of the United States" (an interpretation based on international law
International law
Public international law concerns the structure and conduct of sovereign states; analogous entities, such as the Holy See; and intergovernmental organizations. To a lesser degree, international law also may affect multinational corporations and individuals, an impact increasingly evolving beyond...
which would exclude parents and their children who owed allegiance to another country). This question had, up to that time, never been considered by the Supreme Court. However, following a precedent established in two cases previously decided by other federal courts—In re Look Tin Sing and Gee Fook Sing v. U.S.—the district court ruled that subject to the jurisdiction thereof referred to being subject to U.S. law; on this basis, the court sided with Wong Kim Ark, declaring him to be a citizen and ordering him to be released from custody.
The U.S. government appealed this ruling directly to the United States Supreme Court. The Supreme Court considered the key question in the case to be "whether a child born in the United States, of parents of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil[e] and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States" via the Fourteenth Amendment.
Opinion of the Court
In a 6–2 decision issued on March 28, 1898, the Supreme Court held that Wong Kim Ark had indeed acquired U.S. citizenship at birth and that "the American citizenship which Wong Kim Ark acquired by birth within the United States has not been lost or taken away by anything happening since his birth." The majority opinion was written by Justice Horace GrayHorace Gray
Horace Gray was an American jurist who ultimately served on the United States Supreme Court. He was active in public service and a great philanthropist to the City of Boston.-Early life:...
, who was joined by Justices David J. Brewer, Henry B. Brown, George Shiras Jr., Edward Douglass White
Edward Douglass White
Edward Douglass White, Jr. , American politician and jurist, was a United States senator, Associate Justice of the United States Supreme Court and the ninth Chief Justice of the United States. He was best known for formulating the Rule of Reason standard of antitrust law. He also sided with the...
, and Rufus W. Peckham.
Upholding the concept of jus soli
Jus soli
Jus soli , also known as birthright citizenship, is a right by which nationality or citizenship can be recognized to any individual born in the territory of the related state...
(citizenship based on place of birth), the court's majority held that the Fourteenth Amendment's citizenship clause needed to be interpreted in light of English common law, which had included as subjects
British subject
In British nationality law, the term British subject has at different times had different meanings. The current definition of the term British subject is contained in the British Nationality Act 1981.- Prior to 1949 :...
virtually all native-born children, excluding only those who were (1) born to foreign rulers or diplomats, (2) born on foreign public ships, or (3) born to enemy forces engaged in hostile occupation of the country's territory. The court's majority held that the subject to the jurisdiction phrase in the Citizenship Clause excluded from U.S. citizenship only those persons covered by one of these three exceptions (plus a fourth—namely, that Indian tribes
Native Americans in the United States
Native Americans in the United States are the indigenous peoples in North America within the boundaries of the present-day continental United States, parts of Alaska, and the island state of Hawaii. They are composed of numerous, distinct tribes, states, and ethnic groups, many of which survive as...
"not taxed" were not considered subject to U.S. jurisdiction). The majority concluded that none of these four exceptions to U.S. jurisdiction applied to Wong; in particular, they observed that "during all the time of their said residence in the United States, as domiciled residents therein, the said mother and father of said Wong Kim Ark were engaged in the prosecution of business, and were never engaged in any diplomatic or official capacity under the emperor of China". As a result, the majority opinion concluded that Wong was a U.S. citizen from birth, via the Fourteenth Amendment, and that the restrictions of the Chinese Exclusion Act did not apply to him. An act of Congress, they held, does not trump the Constitution; such a law "cannot control [the Constitution's] meaning, or impair its effect, but must be construed and executed in subordination to its provisions."
In construing the Fourteenth Amendment, the Court in Wong Kim Ark made reference to a case pre-dating that amendment, namely The Schooner Exchange v. M'Faddon
The Schooner Exchange v. M'Faddon
The Schooner Exchange v. M'Faddon, is a United States Supreme Court case.The Schooner Exchange, owned by John M'Faddon and William Greetham, sailed from Baltimore, Maryland, on October 27, 1809, for St. Sebastians, Spain. On December 30, 1810, the Exchange was seized by order of Napoleon Bonaparte...
. Relying heavily on the 1812 opinion by Chief Justice John Marshall
John Marshall
John Marshall was the Chief Justice of the United States whose court opinions helped lay the basis for American constitutional law and made the Supreme Court of the United States a coequal branch of government along with the legislative and executive branches...
in The Exchange, the Court in Wong Kim Ark reiterated that, "The jurisdiction of the nation within its own territory is necessarily exclusive and absolute. It is susceptible of no limitation not imposed by itself."
Dissent
Chief Justice Melville FullerMelville Fuller
Melville Weston Fuller was the eighth Chief Justice of the United States between 1888 and 1910.-Early life and education:...
was joined by Justice John Harlan
John Marshall Harlan
John Marshall Harlan was a Kentucky lawyer and politician who served as an associate justice on the Supreme Court. He is most notable as the lone dissenter in the Civil Rights Cases , and Plessy v...
in a dissenting opinion which, in the words of one analyst, was "elaborately drawn and, for the most part, may be said to be predicated upon the recognition of the international law doctrine". Fuller argued that the history of U.S. citizenship law had broken with English common law tradition after independence
American Revolutionary War
The American Revolutionary War , the American War of Independence, or simply the Revolutionary War, began as a war between the Kingdom of Great Britain and thirteen British colonies in North America, and ended in a global war between several European great powers.The war was the result of the...
—citing as an example the embracing in the U.S. of the right of expatriation (giving up of one's native citizenship) and the rejection of the contrary British doctrine of perpetual allegiance. The minority argued that the principle of jus sanguinis
Jus sanguinis
Ius sanguinis is a social policy by which citizenship is not determined by place of birth, but by having a parent who are citizens of the nation...
(that is, the concept of a child inheriting his or her father's citizenship by descent regardless of birthplace) had been more pervasive in U.S. legal history since independence.
Pointing to the language of the Civil Rights Act of 1866
Civil Rights Act of 1866
The Civil Rights Act of 1866, , enacted April 9, 1866, is a federal law in the United States that was mainly intended to protect the civil rights of African-Americans, in the wake of the American Civil War...
, an act of Congress which declared to be citizens "all persons born in the United States and not subject to any foreign power, excluding Indians not taxed", and which was enacted into law only two months before the Fourteenth Amendment was proposed by Congress, the minority argued that "it is not open to reasonable doubt that the words 'subject to the jurisdiction thereof,' in the amendment, were used as synonymous with the words 'and not subject to any foreign power. In the view of the minority, excessive reliance on jus soli (birthplace) as the principal determiner of citizenship would lead to an untenable state of affairs in which "the children of foreigners, happening to be born to them while passing through the country, whether of royal parentage or not, or whether of the Mongolian, Malay or other race, were eligible to the presidency, while children of our citizens, born abroad, were not."
The dissenters acknowledged that other children of foreigners—including former slaves—had, through the years, acquired U.S. citizenship through birth on U.S. soil. But they still saw a difference between those people and U.S.-born individuals of Chinese ancestry, because of (1) strong cultural traditions discouraging Chinese immigrants from assimilating into mainstream American society, (2) Chinese laws of the time which made renouncing allegiance to the Chinese emperor a capital crime
Capital punishment
Capital punishment, the death penalty, or execution is the sentence of death upon a person by the state as a punishment for an offence. Crimes that can result in a death penalty are known as capital crimes or capital offences. The term capital originates from the Latin capitalis, literally...
, and (3) the provisions of the Chinese Exclusion Act making Chinese immigrants already in the United States ineligible for citizenship. The question for the court's minority was "not whether [Wong Kim Ark] was born in the U.S. or subject to the jurisdiction thereof ... but whether his or her parents have the ability, under U.S. or foreign law, statutory or treaty-based, to become citizens of the U.S. themselves".
Subsequent developments
One analysis of the Wong Kim Ark case, written shortly after the decision in 1898, laid out the two competing theories of jurisdiction in the Citizenship Clause and observed that "[t]he fact that the decision of the court was not unanimous indicates that the question is at least debatable." The same writer also noted, however, that "the error the dissent apparently falls into is that it does not recognize that the United States, as a sovereign power, has the right to adopt any rule of citizenship it may see fit", and concluded that "the decision sets at rest whatever of doubt may have been formerly entertained on the proposition" and "it is difficult to see what valid objection can be raised thereto". Another, opposing analysis of the case (also from 1898) asserts that the Supreme Court's minority had "what appears to be the better view", and that "[t]o put upon the fourteenth amendment the construction urged by the majority of the court is to 'override both treaty and statute'".As a result of Wong Kim Ark's U.S. citizenship being confirmed by the Supreme Court, three of his four sons (born in China) were subsequently allowed to settle in the United States as citizens: Wong Yook Sue (黃郁賜, wong11 yuk3 ti33); Wong Yook Thue (黃沃修, wong11 yuk3 sliu33); and Wong Yook Jim (黃沃沾, wong11 yuk3 zim33). A fourth son—his eldest, Wong Yoke Fun (黃毓煥, wong11 yuk3 von22)—was rejected by U.S. officials, who claimed to see discrepancies in the testimony at his immigration hearing and refused to accept Wong Kim Ark's claim that the boy was his son. At least one of the sons (the youngest, Wong Yook Jim) was still alive in 1998.
Current U.S. citizenship law acknowledges both citizenship through place of birth (jus soli) and citizenship inherited from parents (jus sanguinis). In the years since Wong Kim Ark, the concept of jus soli citizenship, as stated in this case, has "never been seriously questioned by the Supreme Court, and [has] been accepted as dogma by lower courts"; post-1898 citizenship cases "have focused predominantly on questions relating to what extent and in what manner Congress may regulate citizenship outside the principles stated in the Citizenship Clause". Before Wong Kim Ark, the Supreme Court had held in Elk v. Wilkins
Elk v. Wilkins
Elk v. Wilkins, , was a United States Supreme Court case.John Elk, a Native American was born on an Indian reservation and subsequently moved to non-reservation U.S. territory, Omaha, Nebraska, where he renounced his former tribal allegiance and claimed citizenship by virtue of the Citizenship Clause...
, , that birthplace by itself was not sufficient to grant citizenship to an American Indian
Native Americans in the United States
Native Americans in the United States are the indigenous peoples in North America within the boundaries of the present-day continental United States, parts of Alaska, and the island state of Hawaii. They are composed of numerous, distinct tribes, states, and ethnic groups, many of which survive as...
; however, Congress subsequently granted full citizenship to American Indians via the Indian Citizenship Act of 1924
Indian Citizenship Act of 1924
The Indian Citizenship Act of 1924, also known as the Snyder Act, was proposed by Representative Homer P. Snyder of New York and granted full U.S. citizenship to America's indigenous peoples, called "Indians" in this Act...
.
In addition to being cited in numerous Supreme Court cases dealing with citizenship, the Wong Kim Ark court's understanding of Fourteenth Amendment jurisdiction was also invoked in Plyler v. Doe
Plyler v. Doe
Plyler v. Doe, , was a case in which the Supreme Court of the United States struck down a state statute denying funding for education to illegal immigrants and simultaneously struck down a municipal school district's attempt to charge illegal immigrants an annual $1,000 tuition fee for each illegal...
, , a case involving undocumented alien children (i.e., children born abroad who had come to the United States illegally along with their parents). A Texas
Texas
Texas is the second largest U.S. state by both area and population, and the largest state by area in the contiguous United States.The name, based on the Caddo word "Tejas" meaning "friends" or "allies", was applied by the Spanish to the Caddo themselves and to the region of their settlement in...
state law had sought to deny such children a public education, and the Texas government had argued that "persons who have entered the United States illegally are not 'within the jurisdiction' of a State even if they are present within a State's boundaries and subject to its laws". The Supreme Court's majority, however, rejected this view—finding instead that according to Wong Kim Ark, the Fourteenth Amendment's phrases subject to the jurisdiction thereof and within its jurisdiction were essentially equivalent, and that both referred primarily to physical presence and not to political allegiance; and, accordingly, that "no plausible distinction with respect to Fourteenth Amendment 'jurisdiction' can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful."
Criticisms of the case and of birthright citizenship for legal residents
An editorialEditorial
An opinion piece is an article, published in a newspaper or magazine, that mainly reflects the author's opinion about the subject. Opinion pieces are featured in many periodicals.-Editorials:...
published in the San Francisco Chronicle
San Francisco Chronicle
thumb|right|upright|The Chronicle Building following the [[1906 San Francisco earthquake|1906 earthquake]] and fireThe San Francisco Chronicle is a newspaper serving primarily the San Francisco Bay Area of the U.S. state of California, but distributed throughout Northern and Central California,...
on March 30, 1898, expressed concern that the Wong Kim Ark ruling (issued two days previously) "may have a wider effect upon the question of citizenship than the public supposes". It called the reasoning behind the court's majority "a very broad generalization, which, it is to be feared, may apply to Indians as well as Chinese". Though noting that even "if native Indians, like native Chinese and Japanese, are finally endowed with citizenship it does not follow that they can vote", and that "[s]o long as the state can protect its ballot box it is safe from the more unpleasant features of Chinese and Indian citizenship", the editorial suggested that "it may become necessary for other reasons to amend the Federal Constitution and definitely limit citizenship to whites and blacks."
An unsuccessful effort was made in 1942 by the Native Sons of the Golden West
Native Sons of the Golden West
-History:The Native Sons of the Golden West was founded July 11, 1875 by General A. M. Winn, a Virginian, as a lasting monument to the men and women of the Gold Rush Days...
to convince the Supreme Court to revisit and overrule the Wong Kim Ark ruling, in a case (Regan v. King) challenging the citizenship status of roughly 2,600 U.S.–born persons of Japanese ancestry. Calling Wong Kim Ark "one of the most injurious and unfortunate decisions" ever handed down by the Supreme Court, the plaintiffs' attorney argued that this new case—involving "the citizenship and the right to citizenship of all peoples and all races who do not fall within the characterization or description of white people"—would give the court "an opportunity to correct itself" and recognize that the Fourteenth Amendment's citizenship clause "excludes the Chinese, the Japanese, Hindus, Hottentots and the islanders of the Pacific". A federal district court and the Ninth Circuit Court of Appeals rejected this contention, each citing Wong Kim Ark as a controlling precedent
Precedent
In common law legal systems, a precedent or authority is a principle or rule established in a legal case that a court or other judicial body may apply when deciding subsequent cases with similar issues or facts...
, and the Supreme Court declined to hear the case.
Relation of the case to birthright citizenship for illegal immigrants
Since the 1990s, controversy has arisen in some circles over the practice of granting automatic citizenship via jus soli to U.S.–born children of illegal immigrants (controversially dubbed the "anchor babyAnchor baby
"Anchor baby" is a pejorative term for a child born in the United States to immigrant parents, who, as an American citizen, supposedly can later facilitate immigration for relatives...
" situation by some media correspondents and advocacy groups). Public debate over the issue has resulted in renewed discussion of the Wong Kim Ark decision.
Because Wong's parents were residing legally in the United States at the time of his birth, some legal scholars have argued in recent years that the Wong Kim Ark precedent does not apply when alien parents are in the country illegally. John C. Eastman
John C. Eastman
John C. Eastman is an American law professor and politician. He is the Donald P. Kennedy Chair in Law and former Dean at Chapman University School of Law. in Orange, California...
, a former dean of the Chapman University School of Law
Chapman University School of Law
Chapman University School of Law, commonly referred to as Chapman Law or Chapman Law School, is a private, non-profit law school located in Orange, California. The school offers the Juris Doctor degree , combined programs offering a JD/MBA and JD/MFA in Film & Television Producing, and LL.M...
, has argued that Wong Kim Ark does not entitle U.S.–born children of illegal immigrants to gain automatic citizenship because, in his opinion, being subject to the jurisdiction of the United States requires a status of "full and complete jurisdiction" that does not apply to aliens who are in the country illegally. Eastman further argues that the Wong Kim Ark decision was fundamentally flawed in the way it dealt with the concept of jurisdiction, and that the Indian Citizenship Act of 1924
Indian Citizenship Act of 1924
The Indian Citizenship Act of 1924, also known as the Snyder Act, was proposed by Representative Homer P. Snyder of New York and granted full U.S. citizenship to America's indigenous peoples, called "Indians" in this Act...
—which followed Wong Kim Ark—would not have been necessary if Congress had believed "that the Citizenship Clause confers citizenship merely by accident of birth." A similar analysis of the jurisdiction question has been proposed by Peter H. Schuck and Rogers M. Smith
Rogers M. Smith
Rogers M. Smith is an American historian, and Political Science professor at the University of Pennsylvania.-Life:He graduated from Michigan State University, and from Harvard University, with a Ph.D., in 1980.He taught at Yale University, from 1980 to 2001....
. According to law professor Lino Graglia
Lino Graglia
Lino A. Graglia , Italian American, is the Dalton Cross Professor of Law at the University of Texas specializing in antitrust litigation. He earned a BA from the City College of New York in 1952, and an LLB from Columbia University in 1954, before working in the Eisenhower administration's United...
of the University of Texas, even if Wong Kim Ark settled the status of children of legal residents, it did not do so for children of illegal residents; Graglia asserts that the case weighs against automatic birthright for illegal immigrants because the Court denied such citizenship for an analogous group, namely "children of alien enemies, born during and within their hostile occupation". Richard Posner
Richard Posner
Richard Allen Posner is an American jurist, legal theorist, and economist who is currently a judge on the United States Court of Appeals for the Seventh Circuit in Chicago and a Senior Lecturer at the University of Chicago Law School...
, a judge of the Seventh Circuit Court of Appeals, has expressed a position similar to Graglia's, saying that "the situation we have today is absurd".
In response to public reaction against illegal immigration and fears that U.S.-born children of illegal immigrants could serve as links to permit legal residency and eventual citizenship for family members who would otherwise be ineligible to remain in the country, bills
Bill (proposed law)
A bill is a proposed law under consideration by a legislature. A bill does not become law until it is passed by the legislature and, in most cases, approved by the executive. Once a bill has been enacted into law, it is called an act or a statute....
have been introduced from time to time in Congress which have challenged the conventional interpretation of the citizenship clause of the Fourteenth Amendment and have sought to actively and explicitly deny citizenship at birth to U.S.-born children of foreign visitors or illegal aliens. As one example among many, the "Birthright Citizenship Act of 2009"—introduced in the House of Representatives
United States House of Representatives
The United States House of Representatives is one of the two Houses of the United States Congress, the bicameral legislature which also includes the Senate.The composition and powers of the House are established in Article One of the Constitution...
of the 111th Congress
111th United States Congress
The One Hundred Eleventh United States Congress was the meeting of the legislative branch of the United States federal government from January 3, 2009 until January 3, 2011. It began during the last two weeks of the George W. Bush administration, with the remainder spanning the first two years of...
as H.R. 1868, by Representative Nathan Deal
Nathan Deal
John Nathan Deal is a United States politician, the 82nd and current Governor of Georgia. He was elected to the U.S. House of Representatives as a Democrat in 1992 but switched to the Republican Party in 1995...
of Georgia
Georgia (U.S. state)
Georgia is a state located in the southeastern United States. It was established in 1732, the last of the original Thirteen Colonies. The state is named after King George II of Great Britain. Georgia was the fourth state to ratify the United States Constitution, on January 2, 1788...
—was a failed attempt to exclude U.S.–born children of illegal immigrants from being considered subject to the jurisdiction of the United States for purposes of the Citizenship Clause. A similar proposal—named the "Birthright Citizenship Act of 2011"—was introduced in the House as H.R. 140 in the current (112th) Congress on January 5, 2011 by Representative Steve King
Steve King
Steven Arnold "Steve" King is the U.S. Representative for , serving since 2003. He is a member of the Republican Party.The district is located in the western part of the state and includes Sioux City and Council Bluffs....
of Iowa
Iowa
Iowa is a state located in the Midwestern United States, an area often referred to as the "American Heartland". It derives its name from the Ioway people, one of the many American Indian tribes that occupied the state at the time of European exploration. Iowa was a part of the French colony of New...
, and in the Senate as S. 723 on April 5, 2011 by Senator David Vitter
David Vitter
David Vitter is the junior United States Senator from Louisiana and a member of the Republican Party. Previously, he served in the United States House of Representatives, representing the suburban Louisiana's 1st congressional district. He served as a member of the Louisiana House of...
of Louisiana
Louisiana
Louisiana is a state located in the southern region of the United States of America. Its capital is Baton Rouge and largest city is New Orleans. Louisiana is the only state in the U.S. with political subdivisions termed parishes, which are local governments equivalent to counties...
.
Since an act of Congress challenging birthright citizenship for illegal immigrants might well be ruled an unconstitutional violation of the Citizenship Clause by the courts, proposals have also been made to amend the Constitution so as to override the Fourteenth Amendment's language and deny citizenship to U.S.-born children of illegal aliens or foreign visitors. For example, Senator Vitter of Louisiana introduced Senate
United States Senate
The United States Senate is the upper house of the bicameral legislature of the United States, and together with the United States House of Representatives comprises the United States Congress. The composition and powers of the Senate are established in Article One of the U.S. Constitution. Each...
Joint Resolution
Joint resolution
In the United States Congress, a joint resolution is a legislative measure that requires approval by the Senate and the House and is presented to the President for his/her approval or disapproval, in exactly the same case as a bill....
(S.J.Res.) 6 in the 111th Congress, but like H.R. 1868, it failed to reach the floor of either house of Congress before the 111th Congress adjourned on December 22, 2010. Vitter reintroduced this same proposed amendment as S.J.Res 2 in the current (112th) Congress on January 25, 2011.
Gallery
See also
- Birthright citizenship in the United States
- Chinese American history
- Judiciary Act of 1891Judiciary Act of 1891The Judiciary Act of 1891 , also known as the Evarts Act after its primary sponsor, Senator William M. Evarts, created the United States courts of appeals, and reassigned the jurisdiction of most routine appeals from the district and circuit courts to these appellate courts...
- List of United States immigration legislation
- List of United States Supreme Court cases, volume 169
- United States nationality lawUnited States nationality lawArticle I, section 8, clause 4 of the United States Constitution expressly gives the United States Congress the power to establish a uniform rule of naturalization. The Immigration and Naturalization Act sets forth the legal requirements for the acquisition of, and divestiture from, citizenship of...