United States v. Wong Kim Ark

Early history of United States citizenship law

United States citizenship law is founded on two traditional principles—jus soli ("right of the soil"; a "common law" doctrine), and jus sanguinis ("right of the blood"; a "civil law" doctrine). Under jus soli, a child's citizenship would be acquired by birth within a country's territory, without reference to the political status or condition of the child's parents. Under jus sanguinis, the citizenship of a child would not depend on their place of birth, but instead follow the status of a parent (specifically, the father—or, in the case of an illegitimate birth, the mother).^[15][16]

Throughout the history of the United States, the dominant legal principle governing citizenship has been jus soli—the principle that birth within the territorial limits of the United States confers automatic citizenship, excluding slaves before the American Civil War.^[17][18][19] Although there was no actual definition of citizenship in United States law until after the Civil War,^[20] it was generally accepted that anyone born in the United States was automatically a citizen.^[21][22] This applicability of jus soli, via the common law inherited in the United States from England, was upheld in an 1844 New York state case, Lynch v. Clarke, in which it was held that a woman born in New York City, of alien parents temporarily sojourning there, was a U.S. citizen.^[23]

United States citizenship could also be acquired at birth via jus sanguinis (birth outside the country to a citizen parent), a right confirmed by Congress in the Naturalization Act of 1790. Additionally, alien immigrants to the United States could acquire citizenship via a process of naturalization—though access to naturalization was originally limited to "free white person[s]".^[24]

African slaves were originally excluded from United States citizenship. In 1857, the United States Supreme Court held in Dred Scott v. Sandford^[25] that slaves, former slaves, and their descendants were not eligible under the Constitution to be citizens.^[26] Additionally, American Indians were not originally recognized as citizens, since Indian tribes were considered to be outside the jurisdiction of the U.S. government.

Citizenship clause of the Fourteenth Amendment

After the Civil War and the subsequent abolition of slavery, Congress enacted the Civil Rights Act of 1866.^[27][28] One provision of this law declared as citizens, not only the freed slaves, but "all persons born in the United States and not subject to any foreign power, excluding Indians not taxed".^[29]

Concerns were raised that the citizenship guarantee in the Civil Rights Act might be repealed by a later Congress^[30] or struck down as unconstitutional by the courts.^[31][32] Soon after the passage of the Act, Congress drafted the Fourteenth Amendment to the Constitution and sent it to the states for ratification (a process which was completed in 1868).^[33] Among the Fourteenth Amendment's many provisions was the Citizenship Clause, which entrenched a guarantee of citizenship in the Constitution by stating, "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."^[34]

The Citizenship Clause was proposed by Senator Jacob M. Howard of Michigan on May 30, 1866, as an amendment to the joint resolution from the House of Representatives which had framed the initial draft of the proposed Fourteenth Amendment.^[35] The heated debate on the proposed new language in the Senate focused on whether Howard's proposed language would apply more broadly than the wording of the 1866 Civil Rights Act.^[36]

Howard said that the clause "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."^[35] He added that citizenship "will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons"^[35]—a comment which would later raise questions as to whether Congress had originally intended that U.S.-born children of foreign parents were to be included as citizens.^[37] Responding to concerns expressed by Edgar Cowan of Pennsylvania that liberalizing the right to citizenship might result in certain states being taken over by large populations of undesirable foreign immigrants,^[38] John Conness of California predicted that the Chinese population in California would likely remain very small, in large part because Chinese immigrants almost always eventually returned to China, and also because very few Chinese women left their homeland to come to the United States.^[39]

James R. Doolittle of Wisconsin objected that the citizenship provision would not be sufficiently narrow to exclude American Indians from citizenship,^[40] and in an attempt to address this issue, he proposed to add a phrase taken from the Civil Rights Act—"excluding Indians not taxed".^[35] Although most Senators agreed that birthright citizenship should not be extended to the Indians, a majority saw no need to clarify the issue,^[41] and Doolittle's proposal was voted down.^[42] Upon its return to the House of Representatives, the proposed Fourteenth Amendment received little debate; no one spoke in opposition to the Senate's addition of the Citizenship Clause, and the complete proposed amendment was approved by the House on June 13, 1866,^[43] and declared to have been ratified on July 28, 1868.^[44]

In 2006, Goodwin Liu, then an assistant professor at the Boalt Hall law school of the University of California, Berkeley, and later an Associate Justice of the California Supreme Court, wrote that although the legislative history of the Citizenship Clause is "somewhat thin", the clause's central role is evident in the historical context of the post-Civil War period.^[45] Elizabeth Wydra, chief counsel of the Constitutional Accountability Center (a progressive think tank^[46]), argues that both supporters and opponents of the Citizenship Clause in 1866 shared the understanding that it would automatically grant citizenship to all persons born in the United States (except children of foreign ministers and invading armies)^[47]—an interpretation shared by Texas Solicitor General James C. Ho.^[48] Richard Aynes, dean of the University of Akron School of Law, takes a different view, proposing that the Citizenship Clause had "consequences which were unintended by the framers".^[49]

Citizenship of Chinese persons in the United States

Like many other immigrants, Chinese were drawn to the United States—initially to participate in the California Gold Rush of 1849, then moving on to railroad construction, farming, and work in cities.^[50] An 1868 treaty (named the Burlingame Treaty after one of the American negotiators) expanded trade and migration between the United States and China.^[51] The treaty did not address the citizenship of children born in the United States to Chinese parents, or vice versa.^[52] Regarding naturalization (acquisition of citizenship other than at birth), the treaty contained a provision stating that "nothing herein contained shall be held to confer naturalization ... upon the subjects of China in the United States."^[53][54]

Chinese immigrants to the United States were met with considerable distrust, resentment, and discrimination almost from the time of their first arrival. Many politicians argued that the Chinese were so different in so many ways that they not only would never (or even could) assimilate into American culture, but that they represented a threat to the country's principles and institutions.^[55] In this climate of popular anti-Chinese sentiment, Congress in 1882 enacted the Chinese Exclusion Act, which placed limits on Chinese immigration to the United States.^[56] (The original Chinese Exclusion Act was amended several times^[57]—such as by the 1888 Scott Act^[58] and the 1892 Geary Act^[59]—and as a result, it is sometimes referred to in the plural as the "Chinese Exclusion Acts".) Chinese already in the U.S. were allowed to stay, but they were ineligible for naturalization and, if they left the U.S. and later wished to return, they needed to apply anew and obtain approval again. Chinese laborers and miners were specifically barred from coming (or returning) to the United States under the terms of the law.^[60][61]

Citizenship Clause cases prior to Wong Kim Ark

After the adoption of the Fourteenth Amendment in 1868 and prior to the Wong Kim Ark case, the question of jus soli citizenship for children of aliens arose only with reference to American Indians and Chinese.^[62][63] The Supreme Court ruled in an 1884 case (Elk v. Wilkins) that an Indian born on a reservation did not acquire United States citizenship at birth (because he was not subject to U.S. jurisdiction) and could not claim citizenship later on merely by moving to non-reservation U.S. territory and renouncing his former tribal allegiance.^[64] American Indians were subsequently granted citizenship by an act of Congress in 1924.^[65]

The question of whether the Citizenship Clause applied to persons born in the United States to Chinese immigrants first came before the courts in an 1884 case, In re Look Tin Sing.^[66][67] Look Tin Sing was born in Mendocino, California in 1870 to Chinese immigrants. In 1879, his merchant father sent him to China; but upon returning from China in 1884 at age 14, he was barred from reentering the United States by officials who objected to his not having met the documentation requirements imposed at the time on Chinese immigrants under the Restriction Acts of 1882 or of 1884.^[68] Look's case was heard in the federal circuit court for California by U.S. Supreme Court Associate Justice Stephen J. Field and two other federal judges.^[66] Lucy E. Salyer, a history professor at the University of New Hampshire,^[69] writes that Justice Field "issued an open invitation to all lawyers in the area to give their opinions on the constitutional questions involved" in the case.^[70] Field focused on the meaning of the subject to the jurisdiction thereof phrase of the Citizenship Clause, held that Look was indeed subject to U.S. jurisdiction at the time of his birth irrespective of the alien status of his parents, and on this basis ordered U.S. officials to recognize Look as a citizen and allow him to enter the United States.^[68][71] The Look Tin Sing ruling^[68] was not appealed and was never reviewed by the Supreme Court. A similar conclusion was reached by the federal circuit court for Oregon in the 1888 cases of Ex parte Chin King and Ex parte Chan San Hee.^[72]

In an 1892 case, Gee Fook Sing v. U.S., a federal appeals court in California for the same circuit (by this time known as the Ninth Circuit Court of Appeals) concluded that a Chinese man would have been recognized as a United States citizen if he could have presented satisfactory evidence that he had in fact been born in the U.S.^[73] This case was also never brought before the Supreme Court.

The Supreme Court's 1873 Slaughterhouse Cases decision^[74] contained the statement that "The phrase, 'subject to its jurisdiction,' was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign states born within the United States."^[75] However, since the Slaughterhouse Cases did not deal with claims of birthright citizenship, this comment was dismissed in Wong Kim Ark^[76] and later cases as a passing remark (obiter dictum) lacking any force as a controlling precedent.^[77][78] As to whether the Wong Kim Ark decision was correct on this point or not, modern scholars are divided.^[79][80]

Wong Kim Ark

Wong Kim Ark (Chinese: 黃金德; Taishanese: Wōng Gim-ak), was born in San Francisco, California, at 751 Sacramento Street, the address of a Chinatown business (Quong Sing) maintained by his merchant parents.^[81] Various sources state or imply his year of birth as being 1873,^[82] 1871,^[83][84] or 1868.^[85][86] His father, Wong Si Ping, and mother, Lee Wee, emigrated from Taishan, Guangdong, China and were not United States citizens, as the Naturalization Law of 1802 had made them ineligible for naturalization either before or after his birth.^[87][88] Wong did not become a merchant like his father, but worked as a cook in Chinatown restaurants.^[89]

In 1889, Wong Kim Ark, then in his late teens, left for China with his parents, who decided to repatriate to China and to their ancestral village in Taishan, Ong Sing. While in Taishan, Wong Kim Ark married Yee Shee from a village near his familial one. Returning to the United States in 1890, he left behind in Taishan not only his parents but also his wife, who gave birth to their first son after he returned to California. Under the Chinese Exclusion Act of 1882, he as a laborer could not bring his wife to the United States. Upon arrival alone at San Francisco in July 1890, he was readmitted on the ground that he was a native-born citizen of the United States, but only after an unnamed Bureau of Immigration official left a note in his file questioning the veracity of his claim of birth in the United States.^[90]

In November 1894, Wong sailed to China for another temporary visit, to rejoin his wife at his family's village in Taishan, Guangdong. He met his oldest son for the first time, and his second son was conceived.^[91] But when he returned in August 1895 by SS Coptic, 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 was not a U.S. citizen despite his having been born in the U.S., but was instead a Chinese subject because his parents were Chinese.^[92] Wong was confined for five months on steamships off the coast of San Francisco while his case was being tried.^[65]

According to Salyer, the San Francisco attorney George Collins had tried to persuade the federal Justice Department to bring a Chinese birthright citizenship case before the Supreme Court. An article by Collins was published in the May/June 1895 American Law Review, criticizing the Look Tin Sing ruling by Judge Field and the federal government's unwillingness to challenge it, and advocating the international law view of jus sanguinis citizenship.^[93] Eventually, Collins was able to convince U.S. Attorney Henry Foote, who "searched for a viable test case and settled on Wong Kim Ark".^[94]

With the assistance of legal representation by the Chinese Consolidated Benevolent Association,^[95] Wong Kim Ark challenged the refusal to recognize his birth claim to U.S. citizenship, and a petition for a writ of habeas corpus was filed on his behalf in federal district court.^[96][97] The arguments presented before District Judge William W. Morrow^[98] centered on which of two competing interpretations of the phrase subject to the jurisdiction thereof in the Citizenship Clause should govern a situation involving a child born in the United States to alien parents.^[99] Wong's attorneys argued that the phrase 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, that would encompass essentially everyone born in the U.S. via the principle of jus soli (citizenship based on place of birth). The U.S. government claimed that subject to the jurisdiction thereof 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 via the principle of jus sanguinis (citizenship inherited from a parent).^[100][101]

The question of the citizenship status of U.S.-born children of alien parents had, up to this time, never been decided by the Supreme Court.^[77][102] The U.S. government argued that Wong's claim to U.S. citizenship was ruled out by the Supreme Court's interpretation of jurisdiction in its 1873 Slaughterhouse Cases ruling,^[75] but the district judge concluded that the language in question was obiter dictum and not directly relevant to the case at hand.^[77][103] The government also cited a similar statement in Elk v. Wilkins, but the judge was not convinced by this argument either.^[104][105]

Wong's attorneys cited the Look Tin Sing case, and the district judge agreed that in the absence of clear direction from the Supreme Court, this case definitively settled the question of citizenship for Wong and others like him as far as federal courts in the Ninth Circuit were concerned.^[106][107] The judge saw the Look Tin Sing holding reaffirmed in the Gee Fook Sing case and noted further that another part of the Supreme Court's Slaughterhouse Cases opinion said that "it is only necessary that [a man] should be born or naturalized in the United States to be a citizen of the Union."^[108] Concluding that the Look Tin Sing decision constituted a controlling precedent in the Ninth Circuit, Judge Morrow ruled that subject to the jurisdiction thereof referred to being subject to U.S. law (the first of the two proposed interpretations). On January 3, 1896,^[109][110] the judge declared Wong Kim Ark to be a citizen because he was born in the U.S.^[111][112]

The U.S. government appealed the district court ruling directly to the United States Supreme Court.^[113][114] According to Salyer, government officials—realizing that the decision in this case "was of great importance, not just to Chinese Americans, but to all American citizens who had been born to alien parents", and concerned about the possible effect of an early ruling by the Supreme Court on the 1896 presidential election—delayed the timing of their appeal so as to avoid the possibility of a decision based more on policy concerns than the merits of the case.^[115] Oral arguments before the Supreme Court were held on March 5, 1897.^[116] Solicitor General Holmes Conrad presented the government's case;^[117] Wong was represented before the Court by Maxwell Evarts, former U.S. Assistant Attorney General J. Hubley Ashton,^[118] and Thomas D. Riordan.^[119]

The Supreme Court considered the "single question" in the case to be "whether a child born in the United States, of parent[s] of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicile 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."^[6] It was conceded that if Wong was a U.S. citizen, "the acts of Congress known as the 'Chinese Exclusion Acts,' prohibiting persons of the Chinese race, and especially Chinese laborers, from coming into the United States, do not and cannot apply to him."^[5]

In a 6–2 decision^[120][121] issued on March 28, 1898,^[122] the Supreme Court held that Wong Kim Ark had 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."^[123] The opinion of the Court was written by Associate Justice Horace Gray and was joined by Associate Justices David J. Brewer, Henry B. Brown, George Shiras Jr., Edward Douglass White, and Rufus W. Peckham.^[124]

Upholding the concept of jus soli (citizenship based on place of birth),^[125] the Court held that the Citizenship Clause needed to be interpreted in light of English common law,^[1] which had included as subjects virtually all native-born children, excluding only those who were born to foreign rulers or diplomats, born on foreign public ships, or born to enemy forces engaged in hostile occupation of the country's territory.^{[3][126][127]} 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 "single additional exception"—namely, that Indian tribes "not taxed" were not considered subject to U.S. jurisdiction).^[2][64] 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".^[128]

Quoting approvingly from an 1812 case, The Schooner Exchange v. M'Faddon, in which Chief Justice John Marshall said, "The jurisdiction of the nation within its own territory is necessarily exclusive and absolute"^{[129][130][131]}—and agreeing with the district judge who had heard Wong's original habeas corpus petition that comments in the Slaughterhouse Cases about the citizenship status of children born to non-citizen parents did not constitute a binding precedent^[78]—the Court ruled 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.^[132] 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."^[8][133] The majority opinion referred to Calvin's Case (1608) as stating the fundamental common law principle that all people born within the King's "allegiance" were subjects, including children of "aliens in amity".^[134]

Dissent

Chief Justice Melville Fuller was joined by Associate Justice John Harlan in a dissent which, "for the most part, may be said to be predicated upon the recognition of the international law doctrine".^[135] The dissenters 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.^[136][137] The dissenters 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.^[138] Based on an assessment of U.S. and Chinese treaty and naturalization law, the dissenters claimed that "the children of Chinese born in this country do not, ipso facto, become citizens of the United States unless the fourteenth amendment overrides both treaty and statute."^{[139][140][141]}

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 dissenters 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'".^[9][142] In the dissenters' view, 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."^[10]

The dissenters acknowledged that other children of foreigners—including former slaves—had, over 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 strong cultural traditions discouraging Chinese immigrants from assimilating into mainstream American society,^[140] Chinese laws of the time which made renouncing allegiance to the Chinese emperor a capital crime,^[143] and the provisions of the Chinese Exclusion Act making Chinese immigrants already in the United States ineligible for citizenship.^[144] The question for the dissenters 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".^[145]

In a lecture to a group of law students shortly before the decision was released, Harlan commented that the Chinese had long been excluded from American society "upon the idea that this is a race utterly foreign to us and never will assimilate with us." Without the exclusion legislation, Harlan stated his opinion that vast numbers of Chinese "would have rooted out the American population" in the western United States. Acknowledging the opposing view supporting citizenship for American-born Chinese, he said that "Of course, the argument on the other side is that the very words of the constitution embrace such a case."^[146] Commenting on the Wong Kim Ark case shortly after the issuance of the Court's ruling in 1898, San Francisco attorney Marshall B. Woodworth^[147][148] wrote 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 that the rule of international law does not furnish [by its own force] the sole and exclusive test of citizenship of the United States".^[149]

Contemporary reactions

In an analysis of the Wong Kim Ark case written shortly after the decision in 1898, Marshall B. Woodworth 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."^[150] Woodworth concluded, however, that the Supreme Court's ruling laid the issue to rest, saying that "it is difficult to see what valid objection can be raised thereto".^[149] Another analysis of the case, published by the Yale Law Journal (1898), favored the dissenting view.^[136]

An editorial 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"—specifically, that it might lead to citizenship and voting rights not only for Chinese but also Japanese and American Indians. The editorial suggested that "it may become necessary ... to amend the Federal Constitution and definitely limit citizenship to whites and blacks."^[151]

Impact on Wong Kim Ark's family

As a result of Wong Kim Ark's U.S. citizenship being confirmed by the Supreme Court, Wong's eldest son came to the United States from China in 1910, seeking recognition as a citizen via jus sanguinis,^[83] but U.S. immigration officials claimed to see discrepancies in the testimony at his immigration hearing and refused to accept Wong's claim that the boy was his son.^[152] Wong's other three sons came to the United States between 1924 and 1926 and were accepted as citizens.^{[85][153][154]} Because of his citizenship, Wong Kim Ark's youngest son was drafted in World War II, and later made a career in the United States Merchant Marine.^[65]

Citizenship law since Wong Kim Ark

Current U.S. law on birthright citizenship (citizenship acquired at birth) acknowledges both citizenship through place of birth (jus soli) and citizenship inherited from parents (jus sanguinis).^[16] Before Wong Kim Ark, the Supreme Court had held in Elk v. Wilkins (1884) that birthplace by itself was not sufficient to grant citizenship to a Native American;^[155] however, Congress eventually granted full citizenship to American Indians via the Indian Citizenship Act of 1924.^{[156][157][158]}

Restrictions on immigration and naturalization of Chinese were eventually lifted as a consequence of the Chinese Exclusion Repeal Act of 1943^[159] (also known as the Magnuson Act) and the Immigration and Nationality Act of 1965.^{[160][161][162]}

Wong Kim Ark and later cases

In the years since Wong Kim Ark, the concept of jus soli citizenship has "never been seriously questioned by the Supreme Court, and [has] been accepted as dogma by lower courts". Citizenship cases since Wong Kim Ark have dealt mainly with situations falling outside the bounds of the Citizenship Clause^[11]—such as citizenship via jus sanguinis for foreign-born children of U.S. citizens,^[163] or circumstances under which U.S. citizenship may be lost.^[164]

The Wong Kim Ark court's affirmation of jus soli as the primary rule determining United States citizenship has been cited in several Supreme Court decisions affirming the citizenship of U.S.-born individuals of Chinese or Japanese ancestry.^{[164][165][166][167]} The court's holding that the language of the Constitution should be understood in light of the common law has been cited in numerous Supreme Court decisions dealing with the interpretation of the Constitution or acts of Congress.^{[168][169][170]} The Wong Kim Ark court's understanding of Fourteenth Amendment jurisdiction was also cited in a 1982 case involving the rights of illegal immigrants.^[171]

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.^[172] The plaintiffs' attorney termed Wong Kim Ark "one of the most injurious and unfortunate decisions" ever handed down by the Supreme Court and hoped the new case would give the court "an opportunity to correct itself".^[173] A federal district court^[174][175] and the Ninth Circuit Court of Appeals^[176] summarily rejected this contention, each citing Wong Kim Ark as a controlling precedent, and the Supreme Court declined to hear the case.^[177]

Federal appellate courts have repeatedly rejected attempts to cite the Wong Kim Ark opinion's use of the phrase citizenship by birth within the territory in support of claims that persons born in the Philippines during the period of its history when it was a United States possession were born in the U.S. (and thus entitled to U.S. citizenship via the Citizenship Clause).^[178][179]

Wong Kim Ark and children of 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 aliens^[180][181]—controversially dubbed the "anchor baby" situation by some media correspondents and advocacy groups.^[182] Public debate over the issue has resulted in renewed discussion of the Wong Kim Ark decision.^[183]

Some legal scholars, opposed to the idea that jus soli should apply to the children of illegal aliens, have argued 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 aliens 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.^[13] Eastman further argues that the Wong Kim Ark decision was fundamentally flawed in the way it dealt with the concept of jurisdiction,^[184] 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."^[185] A similar analysis of the jurisdiction question has been proposed by Professor Peter H. Schuck of the Yale School of Law and Rogers M. Smith, political science professor at Yale.^[186] 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".^[187]

Countering this view, Garrett Epps—a professor of law at the University of Baltimore—has stated that "In the case of United States v. Wong Kim Ark, the United States Supreme Court held that this guarantee [of birthright citizenship] applies to children of foreigners present on American soil, even if their parents are not American citizens and indeed are not eligible to become U.S. citizens."^[12] Epps further notes that "as a practical matter, the American-born children receive recognition of their citizenship regardless of the immigration status of their parents."^[188] In Epps' opinion, the sponsors of the Fourteenth Amendment "were unwavering in their insistence that the Citizenship Clause was to cover" the children of such "undesirable immigrants" as Chinese and Gypsies, and he views the Wong Kim Ark ruling as an "unexceptionable" matter of reading the drafters' intent.^[189]

Cristina Rodriguez, a professor at the New York University School of Law, has argued that Wong Kim Ark's situation was "similar in all meaningful respects" to that of children of illegal immigrants, because "they both involve immigrant parents ineligible for full membership in the polity, or immigrant populations that were tolerated but disdained or considered legally erasable." Rodriguez goes on to claim that the Wong Kim Ark ruling was "a powerful rejection of the idea that one's status depends on his parent's[sic] status."^[190] Noting contrary arguments (such as those put forth by Schuck and Smith), Rodriguez says that "For all practical purposes, this debate has been resolved. Though renewed interest over the last few years in immigration reform has prompted the introduction of legislation in Congress to deny the children of the unauthorized jus soli status, these measures have been political non-starters, in large part because of the widespread view that the Supreme Court would strike down any such legislation as unconstitutional."^[191]

James C. Ho, currently a judge of the Fifth Circuit Court of Appeals, has expressed a similar view to that of Rodriguez, saying that "Birthright citizenship is guaranteed by the Fourteenth Amendment. That birthright is protected no less for children of undocumented persons than for descendants of Mayflower passengers."^[192] Ho also argues that those who claim the Citizenship Clause was not in fact intended to confer citizenship on the children of aliens are disregarding the substance of the 1866 Senate debate over the proposal to add this language to the Fourteenth Amendment.^[37]

Eugene Volokh, a professor of law at the UCLA School of Law, wrote in 2018 that "jurisdiction is an entity's power to impose its legal will on someone, and the U.S. unquestionably has the power to do that for children of illegal aliens as much as for children of legal aliens or of citizens." Although Volokh personally disagrees with the concept of "categorical birthright citizenship", he concedes that this was clearly intended by the 14th Amendment's citizenship clause.^[193]

The Supreme Court's 1982 Plyler v. Doe decision^[194]—in a case involving illegal alien children (i.e., children born abroad who had come to the United States illegally along with their parents, and who had no basis for claiming U.S. citizenship)—has also been cited in support of a broad application of Fourteenth Amendment jurisdiction to illegal aliens and their children.^[195][196] 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."^[171] A dictum footnote in the Court's majority opinion remarked that according to Wong Kim Ark, the Fourteenth Amendment's phrases subject to the jurisdiction thereof (in the Citizenship Clause) and within its jurisdiction (in the Equal Protection Clause) were essentially equivalent; that both expressions referred primarily to physical presence and not to political allegiance;^[125] and that the Wong Kim Ark decision benefited the children of illegal as well as legal aliens.^[195] As a result, the court rejected the claim that Fourteenth Amendment "jurisdiction" depended on whether someone had entered the U.S. legally or not.^[171][197] Although the four dissenting justices disagreed with the opinion of the Court regarding whether the children in question had a right to a public education, the dissenters agreed with the majority regarding the applicability of Fourteenth Amendment jurisdiction to illegal aliens.^[198] James C. Ho considers Plyler v. Doe to have "put to rest" any doubt over whether the sweeping language regarding jurisdiction in Wong Kim Ark applies to all aliens, even illegal aliens.^[14]

The United States Department of State (the federal government agency responsible for international relations) considers U.S.-born children of illegal aliens to be subject to U.S. jurisdiction, and thus to have citizenship at birth. The State Department's Foreign Affairs Manual takes the position that this issue was settled by the Wong Kim Ark ruling.^[180]

Some legal scholars still argue that the Wong Kim Ark ruling should be overturned through legislative means. Richard Posner, a judge of the Seventh Circuit Court of Appeals, has criticized the granting of citizenship to U.S.-born children of illegal immigrants, suggesting that Congress can and should act to change this policy.^[199] Charles Wood, former counsel to the Senate Judiciary Committee's subcommittee on immigration, has also opposed the practice, urging (in 1999) that it be stopped as quickly as possible, either by an act of Congress or a constitutional amendment.^[200]

However, in the words of Lucy Salyer, "the birthright citizenship doctrine of Wong Kim Ark has remained intact for over a century, still perceived by most to be a natural and well-established rule in accordance with American principles and practice. It is unlikely to be uprooted easily."^[201]

Legislative attempts to overturn Wong Kim Ark

In response to public reaction against immigration^[125] 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 and have sought (thus far unsuccessfully) to actively and explicitly deny citizenship at birth to U.S.-born children of foreign visitors or illegal aliens.^[202]

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 an 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.^[203] A similar proposal—named the "Birthright Citizenship Act of 2011"—was introduced in the House as H.R. 140 in the (112th) Congress on January 5, 2011 by Representative Steve King of Iowa,^[204] and in the Senate as S. 723 on April 5, 2011 by Senator David Vitter of Louisiana.^[205] Neither bill was discussed in Congress prior to the end of the session.

Since an act of Congress challenging the accepted interpretation of the Citizenship Clause might very possibly be ruled unconstitutional by courts choosing to rely on Wong Kim Ark as a precedent,^[191] 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.^[206] Vitter reintroduced this same proposed amendment as S.J.Res. 2 in the 112th Congress on January 25, 2011; it was not brought up for discussion or voted upon in either house of Congress.^[207]

In 2010 and 2011, state legislators in Arizona introduced bills proposing to deny regular birth certificates to children born in Arizona whose parents could not prove they were in the United States legally. Supporters of such legislation reportedly hoped their efforts would cause the issue of birthright citizenship for U.S.-born children of illegal aliens to reach the Supreme Court, possibly resulting in a new decision narrowing or overruling Wong Kim Ark.^{[208][209][210]}

On October 30, 2018, President Donald Trump announced his intention to issue an executive order abolishing birthright citizenship for U.S.-born children of non-citizens.^[211] On this same date, Senator Lindsey Graham of South Carolina said he would introduce legislation in Congress to accomplish the same thing.^[212] Jon Feere, of the Center for Immigration Studies (CIS), has said that "Several legal scholars and political scientists who have delved into the history of the 14th Amendment have concluded that 'subject to the jurisdiction thereof' has no plain meaning".^[213] Commenting on Trump's idea of an executive order, Speaker of the House Paul Ryan said "you obviously cannot do that.... I think in this case the 14th Amendment is pretty clear, and that would involve a very, very lengthy constitutional process."^[214] Mark Krikorian, executive director of the CIS, said that if Trump follows through on his plan, "This will set up the court fight.... the order will be enjoined, [and the] case will eventually reach [the Supreme Court], which then will finally have to rule on the meaning of 'subject to the jurisdiction'."^[214] Neither Trump's promised executive order nor Graham's planned bill materialized before Trump left office in January 2021.

• Birthright citizenship in the United States
• Chinese American history
• Indian Citizenship Act
• List of United States immigration legislation
• List of United States Supreme Court cases, volume 169
• Nativism (politics)
• United States nationality law

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United States v. Wong Kim Ark

• Text of United States v. Wong Kim Ark, 169 U.S. 649 (1898) is available from: Cornell  CourtListener  Google Scholar  Justia  Library of Congress  OpenJurist 

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