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| United States v. Wong Kim Ark | |
|---|---|
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| Argued March 5, 8, 1897 Decided March 28, 1898 | |
| Full case name | United States v. Wong Kim Ark |
| Citations | 169U.S.649 (more) 18 S. Ct. 456; 42L. Ed. 890; 1898U.S. LEXIS 1515 |
| Case history | |
| Prior | Appeal from theDistrict Court of the United States for the Northern District of California; 71F. 382 |
| Holding | |
| a) A child born in the United States to alien parents is a citizen. b)The phrase "subject to the jurisdiction thereof" should be interpreted "in light of the common law".[1] | |
| Court membership | |
| |
| Case opinions | |
| Majority | Gray, joined by Brewer, Brown, Shiras, White, Peckham |
| Dissent | Fuller, joined by Harlan |
| McKenna took no part in the consideration or decision of the case. | |
| Laws applied | |
| U.S. Const. amend. XIV | |
| United States citizenship and immigration |
|---|
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| Immigration |
| Citizenship |
| Agencies |
| Legislation |
| History |
| Relevant legislation |
 United States portal |
United States v. Wong Kim Ark, 169 U.S. 649 (1898), is alandmark decision[2] of theU.S. Supreme Court which held that "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 permanentdomicile 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", automatically became aU.S. citizen at birth.[3]Wong Kim Ark was the first Supreme Court case to decide on the status of children born in the United States to alien parents. This decision established an importantprecedent in its interpretation of theCitizenship Clause of theFourteenth Amendment to the Constitution.[2]
Wong Kim Ark, who was born inSan Francisco in 1873, had been denied re-entry to the United States after a trip abroad, under theChinese Exclusion Act, a law banning virtually all Chinese immigration and prohibiting Chinese immigrants from becomingnaturalized U.S. citizens. He challenged the government's refusal to recognize his citizenship, and the Supreme Court ruled in his favor, holding that the Citizenship Clause should be interpreted "in light of the common law". The case highlighted disagreements over the precise meaning of one phrase in the Citizenship Clause—namely, the provision that a person born in the United States who is "subject to the jurisdiction thereof" acquires automatic citizenship.
The Supreme Court's majority concluded that this phrase referred to being required to obey U.S. law; on this basis, they interpreted the Citizenship Clause of the Fourteenth Amendment to grant citizenship to children born in the United States, with only a limited set of exceptions based onEnglish common law. The Court held that being born to alien parents was not one of those exceptions.[4][5] The court's dissenters argued that being subject to the jurisdiction of the United States meant not being subject to any foreign power[6]—that is, not being claimed as a citizen by another country viajus sanguinis (inheriting citizenship from a parent)—an interpretation which, in the minority's view, would have excluded "the children of foreigners, happening to be born to them while passing through the country".[7]
In the words of a 2007 legal analysis of events following theWong Kim Ark decision, "The parameters of thejus soli principle, as stated by the court inWong Kim Ark, have never been seriously questioned by the Supreme Court, and have been accepted as dogma by lower courts."[8] A 2010 review of the history of the Citizenship Clause notes that theWong Kim Ark decision held that the guarantee ofbirthright citizenship "applies to children of foreigners present on American soil" and states that the Supreme Court "has not re-examined this issue since the concept of 'illegal alien' entered the language".[9] Since the 1990s, however, controversy has arisen over the longstanding practice of granting automatic citizenship to U.S.-born children ofillegal immigrants, and legal scholars disagree over whether theWong Kim Ark precedent applies when alien parents are in the country illegally.[10][11] Attempts have been made from time to time in Congress to restrict birthright citizenship, either viastatutory redefinition of the termjurisdiction, or by overriding both theWong Kim Ark ruling and the Citizenship Clause itself through anamendment to the Constitution, but no such proposal has been enacted.
Throughout the history of the United States, the dominant legal principle governing citizenship has beenjus soli—the principle that birth within the territorial limits of the United States confers automatic citizenship, excludingslaves before theAmerican Civil War.[12][13] Although there was no actual definition of citizenship in United States law until after the Civil War,[14] it was generally accepted that anyone born in the United States was automatically a citizen.[15][16]
The common law principle ofjus soli was upheld in an 1844New York state case,Lynch v. Clarke,[17] in which a state judge held that a woman born inNew York City, of alien parents temporarily sojourning there, was a U.S. citizen.[18][19]
Africanslaves were originally excluded from United States citizenship. In 1857, theUnited States Supreme Court held inDred Scott v. Sandford[20] that slaves, former slaves, and their descendants were not eligible under the Constitution to be citizens.[21] Additionally,Native Americans were not originally recognized as citizens, since Native American tribes were considered to be outside the jurisdiction of the U.S. government.
After theCivil War and the subsequent abolition of slavery, Congress enacted theCivil Rights Act of 1866.[22][23] One provision of the statute granted citizenship to "all persons born in the United States and not subject to any foreign power, excluding Indians not taxed".[24]
Concerns were raised that the citizenship guarantee in the Civil Rights Act might be repealed by a later Congress[25] or struck down as unconstitutional by the courts.[26][27] Soon after the passage of the Act, Congress drafted theFourteenth Amendment to the Constitution and sent it to the states for ratification (a process which was completed in 1868).[28] Among the Fourteenth Amendment's many provisions was theCitizenship 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."[29]
The Citizenship Clause was proposed by SenatorJacob M. Howard ofMichigan 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.[30] The heated debate on the proposed new language in theSenate focused on whether Howard's proposed language would apply more broadly than the wording of the 1866 Civil Rights Act.[31]
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."[30] 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"[30]—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.[32]
James R. Doolittle ofWisconsin objected that the citizenship provision would not be sufficiently narrow to exclude Native Americans from citizenship,[33] and in an attempt to address this issue, he proposed to add a phrase taken from the Civil Rights Act—"excluding Indians not taxed".[30] Although most Senators agreed that birthright citizenship should not be extended to Native Americans, a majority saw no need to clarify the issue,[34] and Doolittle's proposal was voted down.[35] Upon its return to theHouse 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,[36] and declared to have been ratified on July 28, 1868.[37]
The Supreme Court ruled in an 1884 case (Elk v. Wilkins) that an Indian born on areservation 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.[38] Native Americans were subsequently granted citizenship byan act of Congress in 1924.[39]
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.[40][41]Look Tin Sing was born inMendocino, 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.[42] Look's case was heard in thefederal circuit court for California by U.S. Supreme Court Associate JusticeStephen J. Field and two other federal judges.[40]Lucy E. Salyer, a history professor at theUniversity of New Hampshire,[43] 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.[44] Field focused on the meaning of thesubject 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.[42][45] TheLook Tin Sing ruling[42] 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 ofEx parte Chin King andEx parte Chan San Hee.[46]
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 theNinth 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.[47] This case was also never brought before the Supreme Court.
The Supreme Court's 1873Slaughterhouse Cases decision[48] 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."[49] However, since theSlaughterhouse Cases did not deal with claims of birthright citizenship, this comment was dismissed inWong Kim Ark[50] and later cases as a passing remark (obiter dictum) lacking any force as a controllingprecedent.[51][52] As to whether theWong Kim Ark decision was correct on this point or not, modern scholars are divided.[53][54]
Like many other immigrants, Chinese were drawn to the United States—initially to participate in theCalifornia Gold Rush of 1849, then moving on to railroad construction, farming, and work in cities.[55] An 1868 treaty (named theBurlingame Treaty after one of the American negotiators) expanded trade and migration between the United States and China.[56] The treaty did not address the citizenship of children born in the United States to Chinese parents, or vice versa.[57] Regardingnaturalization (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."[58][59]
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.[60] In this climate of popular anti-Chinese sentiment, Congress in 1882 enacted theChinese Exclusion Act, which placed limits on Chinese immigration to the United States.[61] (The original Chinese Exclusion Act was amended several times[62]—such as by the 1888Scott Act[63] and the 1892Geary Act[64]—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.[65][66]
Wong Kim Ark (simplified Chinese:黄金德;traditional Chinese:黃金德;pinyin:Huáng Jīndé;Taishanese:Vong3 Gim1-ak2;c. 1868/73 – after 1931)[67] was born inSan Francisco,California, at 751 Sacramento Street, the address of aChinatown business (Quong Sing) maintained by his merchant parents.[68] Various sources state or imply his year of birth as being 1873,[69] 1871,[70][71] or 1868.[72][73] His father, Wong Si Ping, and mother, Lee Wee, emigrated fromTaishan, Guangdong, China and were not United States citizens, as theNaturalization Law of 1802 had made them ineligible for naturalization either before or after his birth.[74][75] Wong did not become a merchant like his father, but worked as a cook inChinatown restaurants.[76]
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 inTaishan, 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 theChinese 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.[77]
In November 1894, Wong sailed to China for another temporary visit, to rejoin his wife at his family's village inTaishan, Guangdong. He met his oldest son for the first time, and his second son was conceived.[78] But when he returned in August 1895 bySSCoptic, he was detained at thePort of San Francisco by the Collector ofCustoms, 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.[79] Wong was confined for five months on steamships off the coast of San Francisco while his case was being tried.[39]
According to Salyer, the San Francisco attorney George Collins had tried to persuade the federalJustice Department to bring a Chinese birthright citizenship case before the Supreme Court. An article by Collins was published in the May/June 1895American Law Review, criticizing theLook Tin Sing ruling by Judge Field and the federal government's unwillingness to challenge it, and advocating the international law view ofjus sanguinis citizenship.[80] Eventually, Collins was able to convince U.S. Attorney Henry Foote, who "searched for a viable test case and settled on Wong Kim Ark".[81]
With the assistance of legal representation by theChinese Consolidated Benevolent Association,[82] Wong Kim Ark challenged the refusal to recognize hisbirth claim to U.S. citizenship, and a petition for a writ ofhabeas corpus was filed on his behalf infederal district court.[83][84]
The arguments presented before District JudgeWilliam W. Morrow[85] centered on which of two competing interpretations of the phrasesubject to the jurisdiction thereof in the Citizenship Clause should govern a situation involving a child born in the United States to alien parents.[86][87]
The U.S. government claimed thatsubject to the jurisdiction thereof meant "to be subject to the political jurisdiction of the United States"—an interpretation, based oninternational law, which would exclude parents and their children who owed allegiance to another country via the principle ofjus sanguinis (citizenship inherited from a parent).[88] They argued that Wong's claim to U.S. citizenship was ruled out by the Supreme Court's interpretation of jurisdiction in its 1873Slaughterhouse Cases ruling.[49][51] 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 leading Judge Morrow to decide that the remark about the citizenship clause inSlaughterhouse wasobiter dictum.[51][89] The government also cited a similar statement inElk v. Wilkins, but the judge was not convinced by this argument either.[90][91]
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 thecommon law inherited by the United States from England, that would encompass essentially everyone born in the U.S. via the principle ofjus soli (citizenship based on place of birth).[92][86] Wong's attorneys cited theLook 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 theNinth Circuit were concerned.[93][94] The judge saw theLook Tin Sing holding reaffirmed in theGee Fook Sing case and noted further that another part of the Supreme Court'sSlaughterhouse 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."[95] Concluding that theLook Tin Sing decision constituted a controllingprecedent in the Ninth Circuit, Judge Morrow ruled thatsubject to the jurisdiction thereof referred to being subject to U.S. law (the first of the two proposed interpretations). On January 3, 1896,[96][97] the judge declared Wong Kim Ark to be a citizen because he was born in the U.S.[98][99]
The U.S. governmentappealed the district court ruling directly to the United States Supreme Court.[100][101] 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 the1896 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.[102] Oral arguments before the Supreme Court were held on March 5, 1897.[103]Solicitor GeneralHolmes Conrad presented the government's case;[104] Wong was represented before the Court byMaxwell Evarts, former U.S. AssistantAttorney General J. Hubley Ashton,[105] and Thomas D. Riordan.[106]
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."[3] 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."[107]
In a 6–2 decision[108][109] issued on March 28, 1898,[110] 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."[111] The opinion of the Court was written by Associate JusticeHorace Gray and was joined by Associate JusticesDavid J. Brewer,Henry B. Brown,George Shiras Jr.,Edward Douglass White, andRufus W. Peckham.[112]
The Court stated "subject to the jurisdiction thereof" should be interpreted "in the light of the common law" which had included assubjects 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.[1][113][114][115] The court's majority held that thesubject 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, thatIndian tribes "not taxed" were not considered subject to U.S. jurisdiction).[4][38] 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".[116]
Quoting approvingly from an 1812 case,The Schooner Exchange v. M'Faddon, in whichChief JusticeJohn Marshall said, "The jurisdiction of the nation within its own territory is necessarily exclusive and absolute"[117][118][119]—and agreeing with the district judge who had heard Wong's originalhabeas corpus petition that comments in theSlaughterhouse Cases about the citizenship status of children born to non-citizen parents did not constitute a binding precedent[52]—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.[120] 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."[121][122] The majority opinion referred toCalvin'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".[123]
Chief JusticeMelville Fuller was joined by Associate JusticeJohn Marshall Harlan in a dissent which, "for the most part, may be said to be predicated upon the recognition of the international law doctrine".[124] The dissenters argued that the history of U.S. citizenship law had broken with English common law tradition afterindependence—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 ofperpetual allegiance.[125][126] The dissenters argued that the principle ofjus 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.[127] Based on an assessment of U.S. and Chinesetreaty 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."[128][129][130]
Pointing to the language of theCivil 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'".[6][131] In the dissenters' view, excessive reliance onjus 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."[7]
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,[129] Chinese laws of the time which made renouncing allegiance to theChinese emperor acapital crime,[132] and the provisions of the Chinese Exclusion Act making Chinese immigrants already in the United States ineligible for citizenship.[133] 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".[134]
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."[135] Commenting on theWong Kim Ark case shortly after the issuance of the Court's ruling in 1898, San Francisco attorney Marshall B. Woodworth[136][137] 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".[138]
In an analysis of theWong 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."[139] 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".[138] Another analysis of the case, published by theYale Law Journal (1898), favored the dissenting view.[125]
An editorial published in theSan Francisco Chronicle on March 30, 1898, expressed concern that theWong 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."[140]
As a result of Wong Kim Ark's U.S. citizenship being confirmed by the Supreme Court, Wong's eldest son, Wong Yoke Fun,[141] came to the United States from China in 1910, seeking recognition as a citizen viajus sanguinis,[70] but U.S. immigration officialsclaimed to see discrepancies in the testimony at his immigration hearing and refused to accept Wong's claim that the boy was his son.[142] Wong's other three sons came to the United States between 1924 and 1926 and were accepted as citizens.[72][143][144] Because of his citizenship, Wong Kim Ark's youngest son was drafted in World War II, and later made a career in theUnited States Merchant Marine.[39]
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).[145] BeforeWong Kim Ark, the Supreme Court had held inElk v. Wilkins (1884) that birthplace by itself was not sufficient to grant citizenship to aNative American;[146] however, Congress eventually granted full citizenship to Native Americans via theIndian Citizenship Act of 1924.[147][148][149]
Restrictions on immigration and naturalization of Chinese were eventually lifted as a consequence of theChinese Exclusion Repeal Act of 1943[150] (also known as the Magnuson Act) and theImmigration and Nationality Act of 1965.[151][152][153]
In the years sinceWong Kim Ark, the concept ofjus soli citizenship has "never been seriously questioned by the Supreme Court, and [has] been accepted as dogma by lower courts". Citizenship cases sinceWong Kim Ark have dealt mainly with situations falling outside the bounds of the Citizenship Clause[8]—such as citizenship viajus sanguinis for foreign-born children of U.S. citizens,[154] or circumstances under which U.S. citizenship may be lost.[155]
TheWong Kim Ark court's affirmation ofjus 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.[155][156][157][158] The court's holding that the language of the Constitution should be understood in light of thecommon law has been cited in numerous Supreme Court decisions dealing with the interpretation of the Constitution or acts of Congress.[159][160][161] TheWong Kim Ark court's understanding of Fourteenth Amendment jurisdiction was also cited in a 1982 case involving the rights of illegal immigrants.[162]
An unsuccessful effort was made in 1942 by theNative Sons of the Golden West to convince the Supreme Court to revisit and overrule theWong Kim Ark ruling, in a case (Regan v. King) challenging the citizenship status of roughly 2,600 U.S.-born persons of Japanese ancestry.[163] The plaintiffs' attorney termedWong 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".[164] A federal district court[165][166] and theNinth Circuit Court of Appeals[167] summarily rejected this contention, each citingWong Kim Ark as a controllingprecedent, and the Supreme Court declined to hear the case.[168]
Federal appellate courts have repeatedly rejected attempts to cite theWong Kim Ark opinion's use of the phrasecitizenship by birth within the territory in support of claims that persons born in the Philippines during theperiod 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).[169][170]
Since the 1990s, controversy has arisen in some circles over the practice of granting automatic citizenship viajus soli to U.S.-born children of illegal aliens[171][172]—controversially dubbed the "anchor baby" situation by some media correspondents and advocacy groups.[173] Public debate over the issue has resulted in renewed discussion of theWong Kim Ark decision.[174]
Some legal scholars, opposed to the idea thatjus soli should apply to the children of illegal aliens, have argued that theWong Kim Ark precedent does not apply when alien parents are in the country illegally.John C. Eastman, a senior fellow at theClaremont Institute, has argued thatWong 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.[10] Eastman further argues that theWong Kim Ark decision was fundamentally flawed in the way it dealt with the concept of jurisdiction,[175] and that theIndian Citizenship Act of 1924—which followedWong Kim Ark—would not have been necessary if Congress had believed "that the Citizenship Clause confers citizenship merely by accident of birth."[176] A similar analysis of the jurisdiction question has been proposed by Professor Peter H. Schuck of the Yale School of Law andRogers M. Smith, political science professor at Yale.[177] According to law professorLino Graglia of theUniversity of Texas, even ifWong 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".[178]
Countering this view,Garrett Epps—a professor of law at theUniversity of Baltimore—has stated that "In the case ofUnited 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."[9] 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."[179] 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 theWong Kim Ark ruling as an "unexceptionable" matter of reading the drafters' intent.[180]
JudgeJames C. Ho, appointed to theFifth Circuit Court of Appeals in 2018,[181] 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 ofMayflower passengers."[182] 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.[32]
The Supreme Court's 1982Plyler v. Doe decision[183]—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.[184][185] ATexas 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."[162] Adictum footnote in the Court's majority opinion remarked that according toWong Kim Ark, the Fourteenth Amendment's phrasessubject to the jurisdiction thereof (in the Citizenship Clause) andwithin its jurisdiction (in theEqual Protection Clause) were essentially equivalent; that both expressions referred primarily to physical presence and not to political allegiance;[186] and that theWong Kim Ark decision benefited the children of illegal as well as legal aliens.[184] As a result, the court rejected the claim that Fourteenth Amendment "jurisdiction" depended on whether someone had entered the U.S. legally or not.[162][187] 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.[188] James C. Ho considersPlyler v. Doe to have "put to rest" any doubt over whether the sweeping language regarding jurisdiction inWong Kim Ark applies to all aliens, even illegal aliens.[11]
TheUnited 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'sForeign Affairs Manual takes the position that this issue was settled by theWong Kim Ark ruling.[171]
Some legal scholars still argue that theWong Kim Ark ruling should be overturned through legislative means.Richard Posner, a judge of theSeventh Circuit Court of Appeals, criticized (in 2003) the granting of citizenship to U.S.-born children of illegal immigrants, suggesting that Congress can and should act to change this policy.[189] Charles Wood, former counsel to theSenate 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.[190]
However, in the words of Lucy Salyer, "the birthright citizenship doctrine ofWong 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."[191]
In response to public reaction against immigration[186] and fears that U.S.-born children of illegal immigrants could serve aslinks 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.[192]
As one example among many, the "Birthright Citizenship Act of 2009"—introduced in theHouse of Representatives of the111th Congress as H.R. 1868, by RepresentativeNathan Deal ofGeorgia—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.[193] 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 RepresentativeSteve King ofIowa,[194] and in theSenate as S. 723 on April 5, 2011 by SenatorDavid Vitter ofLouisiana.[195] 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 onWong Kim Ark as a precedent,[196] proposals have also been made toamend 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, Vitter introduced SenateJoint 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.[197] 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.[198]
In 2010 and 2011, state legislators inArizona introduced bills proposing to deny regularbirth 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 overrulingWong Kim Ark.[199][200]
On October 30, 2018, PresidentDonald Trump announced his intention to issue anexecutive order abolishing birthright citizenship for U.S.-born children of non-citizens.[201] On this same date, SenatorLindsey Graham ofSouth Carolina said he would introduce legislation in Congress to accomplish the same thing.[202] Jon Feere, of theCenter 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".[203] Commenting on Trump's idea of an executive order,Speaker of the HousePaul 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."[204]Mark Krikorian, executive director of theCenter for Immigration Studies, 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'."[204] Neither Trump's promised executive order nor Graham's planned bill materialized before Trump left office in January 2021.
However, upon assuming office on January 20, 2025, Trumpannounced an executive order abolishing birthright citizenship for anyone born in the United States without a mother or father that was a U.S. citizen or lawful permanent resident.[205] As of January 22, at least two federal court challenges have been filed against the executive order, one in Massachusetts by more than 20 state attorneys general led byMatthew Platkin,State of New Jersey, et al. v. Trump,[206] and one in New Hampshire by theAmerican Civil Liberties Union,New Hampshire Indonesian Community Support, et al. v. Trump.[207] Norman Wong, the great-grandson of Wong Kim Ark, criticized the executive order.[141]
The weight of current legal authority suggests that these executive and legislative proposals to restrict birthright citizenship would contravene the Citizenship Clause. At least since the Supreme Court's decision in the 1898 caseUnited States v. Wong Kim Ark, the prevailing view has been that all persons born in the United States are constitutionally guaranteed citizenship at birth unless their parents are foreign diplomats, members of occupying foreign forces, or members of Indian tribes. InWong Kim Ark, the Court held that a man born in the United States in 1873 to parents who were Chinese nationals acquired citizenship at birth under the Fourteenth Amendment. The parents were ineligible to naturalize under the law of the time, but they had established "permanent domicil and residence in the United States." The Court reasoned that the Citizenship Clause should be "interpret[ed] in light of the common law" and grounded its holding in the common law principle of jus soli or "right of the soil." Pursuant to that principle, "every child born in England of alien parents was a natural-born subject, unless the child of an ambassador or other diplomatic agent of a foreign state, or of an alien enemy in hostile occupation of the place where the child was born." The Court interpreted the "subject to the jurisdiction thereof" requirement in the Citizenship Clause to mean that the federal government could deny citizenship to people born on U.S. soil who fell within these two narrow, common law exceptions.
By a vote of 6-2, the Supreme Court agreed with Wong that he was a U.S. citizen. Writing for the majority, Justice Horace Gray explained that although the "main purpose" of the 14th Amendment had been to establish the citizenship of Black people, including former enslaved persons, born in the United States, the amendment applies more broadly and is not restricted "by color or race." Instead, he wrote, the amendment "affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens." There have historically been only a few exceptions to that general rule, Gray continued – for example, the children of hostile enemies who are occupying the country, and the children of foreign diplomats, as well as (until 1924) some Native Americans.
A bill that would deny citizenship to children born in the United States to certain classes of alien parents is unconstitutional on its face. A constitutional amendment to restrict birthright citizenship, although not technically unlawful, would flatly contradict the Nation's constitutional history and constitutional traditions.
The opposition made several arguments. The citizenship provision was unconstitutional, they contended, and would grant citizenship, not only to freed slaves, but to Indians living off their reservations, to Chinese born in the United States, and even to gypsies. [Illinois Senator Lyman] Trumbull agreed that it would, opening a chorus of cries that the bill would cede California to China and make America a mongrel nation.
However, because there were concerns that the Civil Rights Act might be subsequently repealed or limited the Congress took steps to include similar language when it considered the draft of the Fourteenth Amendment.
The debate in the Senate was conducted in a somewhat acrimonious fashion and focused in part on the difference between the language in the definition of citizenship in the Civil Rights Act of 1866 and the proposed amendment. Specific discussion reviewed the need to address the problem created by theDred Scott decision, but also the possibility that the language of the Howard amendment would apply in a broader fashion to almost all children born in the United States. The specific meaning of the language of the clause was not immediately obvious.
Wong Kim Ark spent most of his life as a cook in various Chinatown restaurants. In 1894, Wong visited his family in China.
...[W]ere it not for the fact that the executive department of the general government has apparently acquiesced in Judge Field's [Look Tin Sing] decision as a correct interpretation of the law, we might well be indifferent to what he did or did not decide in the particular case before the Circuit Court, knowing as we do that when the question is ultimately brought before the Supreme Court of the United States, Judge Field's views will not be sustained.
Judge Morrow decided yesterday that a Chinese, though a laborer, if born in this country, is a citizen of the United States, and as such cannot lose his right to land here again after leaving the country.
The reminiscence printed below was written by J. Hubley Ashton, assistant attorney general of the United States from 1864 to 1869.
{{cite encyclopedia}}:ISBN / Date incompatibility (help)In its analysis of the nature of national jurisdiction, the Court relied heavily on Chief Justice John Marshall's broad statement....
{{cite encyclopedia}}:ISBN / Date incompatibility (help)Although hopelessly in the minority, Chief Justice Fuller, with whom Mr. Justice Harlan agrees, dissents from this opinion, and, upon what appears to be the better view, holds that the common law of England does not control the question under discussion.
Marshall B. Woodworth, who was recently appointed United States Attorney for the Northern District of California ... took the oath of office yesterday before Judge Morrow in the United States Circuit Court.
Marshall B. Woodworth, 66, former United States attorney in San Francisco, was struck and killed by an automobile yesterday.
The group's lawyer ... argued that nonwhite children of immigrant parents—specifically, Americans of Japanese descent—were not entitled to birthright citizenship because the Declaration of Independence and the Constitution were created 'by and for white people.'
Immigration-control advocates regard the U.S.-born infants as 'anchor babies' because they give their undocumented parents and relatives a way to petition for citizenship.
The Court has not revisitedWong Kim Ark, but Schuck and Smith offer a reading of the Citizenship Clause that connects the exclusions to birthright citizenship with a principle of reciprocal consent or allegiance.
The needed reforms should be completed expeditiously.... [I]n every week that passes thousands more children of illegal aliens are born in this country, and each is now granted citizenship.... If these reforms are not accomplished one way or another soon, 'We the People of the United States' risk losing control of the nation's future.
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