In 1898, the Supreme Court ruled in favor of Wong Kim Ark and safeguarded birthright citizenship for millions.
Birthright citizenship is in the news again thanks to the release of presidential candidate Donald Trump’s immigration plan on Sunday. Under a section of Trump’s plan titled “Defend The Laws And Constitution Of The United States,” the language is blunt: “End birthright citizenship.”
The ability of people to automatically become American citizens solely because they are born on American soil, claims Trump, “remains the biggest magnet for illegal immigration.”
By Monday evening, Scott Walker was on record agreeing. Their positions are in line with a 2011 bill in Congress that would have tied birthright citizenship to parental immigration status.
All of these efforts have faced a formidable obstacle: the Constitution of the United States. The Fourteenth Amendment, ratified in 1868, declares that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” The Supreme Court explicitly affirmed birthright citizenship for children of immigrants, regardless of their parents’ immigration status, in the 1898 case of Wong Kim Ark vs. the United States.
A short history of this case can help us understand how this precedent was established and why plans to dismantle birthright citizenship today are so wrongheaded.
Wong Kim Ark was a 24-year-old native-born American citizen, a Chinese-American restaurant cook born and raised in San Francisco. On the last day of August in 1894, he returned to California after a visit to China. To his surprise, he was denied readmission into the United States, becoming the latest victim in what was then an ongoing war against Chinese immigration.
Eight years earlier, the U.S. had passed the Chinese Exclusion Act, which barred most Chinese from immigrating and affirmed the ban on Chinese immigrants becoming naturalized U.S. citizens. During the next decade, anti-Chinese sentiment remained high. In 1892, the Exclusion Act was renewed, and immigration officials cracked down on those who continued to apply for admission, including the small numbers of U.S.-born Chinese-American citizens.
Wong was a test case. The government laid out its position: American-born Chinese could not be considered citizens if their parents were not, and could never become, naturalized citizens.
Wong fought back. He hired lawyers and took the feds to court, claiming that his right to re-enter the United States was based on his status as a U.S. citizen under the Fourteenth Amendment. The case was argued before the U.S. Supreme Court in March of 1897 and centered on the question of how the United States determined citizenship: by jus soli (by soil), or by jus sanguinis (by blood, inheritance)?
Supreme Court Justice Horace Gray wrote the majority opinion, which was joined by six other justices. Gray argued that common-law doctrine held that a person became a citizen by virtue of jus soli, his birth in the United States, rather than his blood line. “The right of citizenship [in the United States] never descends in the legal sense, either by the common law, or under the common naturalization acts. It is incident to birth in the country, or it is given personally by statute.”
In other words, even though Wong’s parents were “subjects of the Emperor of China,” non-citizens, and indeed not eligible to become U.S. citizens, at birth he became a citizen of the United States.
With this majority opinion, Wong Kim Ark vs. United States affirmed that regardless of race or the immigration status of one’s parents, all persons born in the United States were entitled to all of the rights that citizenship offered. The court has not re-examined this issue since then — but that hasn’t stopped the likes of Trump from dragging the debate back into public.
Those in favor of denying birthright citizenship to children of undocumented immigrants claim that it rewards undocumented immigration and leads to costly burdens on American public services. They also charge that so-called “anchor babies” — children of undocumented immigrants born in the United States — allow parents to use their citizen children to avoid deportation and ultimately obtain U.S. citizenship for themselves.
Many immigration experts counter that ending birthright citizenship would create two tiers of unequal citizenship in the country and would be disastrous for the estimated 4.5 million people who have been born in the United States to undocumented immigrant parents. Many likely have one parent who is either a citizen or an immigrant living here legally. Such a change would further destroy families and disaffect another generation of immigrants and their U.S. citizen children.
That is what happened to Wong. Despite his history-making case, he reaped little benefit. His citizenship and legal status were never fully recognized by the U.S. government, and he remained an outsider in the land of his birth. Like all Chinese in America, Wong was required to carry a “Certificate of Identity” at all times to verify his status as a legal resident. Whenever he entered or re-entered the country, Wong also had to laboriously fill out forms and be interrogated about his right to return to the land of his birth.
As a result of his unequal status, Wong eventually turned his back on the United States. He married and had four sons, but they remained in China. Eventually, Wong retired to China at the age of 62 and never returned to the United States. He died in China shortly after World War II.
As Americans consider the proposal to end birthright citizenship and the candidates who support it, they should also remember Wong Kim Ark and the price he paid so that future generations could enjoy the rights and privileges of birthright citizenship.
This piece was first published in the New York Daily News on August 18, 2015.