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''United States v. Wong Kim Ark'', 169 U.S. 649 (1898), was a
landmark decision Landmark court decisions, in present-day common law legal systems, establish precedents that determine a significant new legal principle or concept, or otherwise substantially affect the interpretation of existing law. "Leading case" is commonly ...
of the U.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 permanent domicil 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",''Wong Kim Ark'', 169 U.S. at 653. "The question presented by the record is whether a child born in the United States, of parents of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil 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 by virtue of the first clause of the Fourteenth Amendment of the Constitution, '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.'" automatically became a U.S. citizen at birth.''Wong Kim Ark'', 169 U.S. at 705. "The evident intention, and the necessary effect, of the submission of this case to the decision of the court upon the facts agreed by the parties were to present for determination the single question stated at the beginning of this opinion, namely, whether a child born in the United States, of parent " ic of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil 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. For the reasons above stated, this court is of opinion that the question must be answered in the affirmative." This decision established an important
precedent A precedent is a principle or rule established in a previous legal case that is either binding on or persuasive for a court or other tribunal when deciding subsequent cases with similar issues or facts. Common-law legal systems place great v ...
in its interpretation of the
Citizenship Clause The Citizenship Clause is the first sentence of the Fourteenth Amendment to the United States Constitution, which was adopted on July 9, 1868, which states: This clause reversed a portion of the ''Dred Scott v. Sandford'' decision, which had d ...
of the Fourteenth Amendment to the Constitution. Wong Kim Ark, who was born in
San Francisco San Francisco (; Spanish for " Saint Francis"), officially the City and County of San Francisco, is the commercial, financial, and cultural center of Northern California. The city proper is the fourth most populous in California and 17t ...
in 1873, had been denied re-entry to the United States after a trip abroad, under a law restricting Chinese immigration and prohibiting immigrants from
China China, officially the People's Republic of China (PRC), is a country in East Asia. It is the world's List of countries and dependencies by population, most populous country, with a Population of China, population exceeding 1.4 billion, slig ...
from becoming
naturalized Naturalization (or naturalisation) is the legal act or process by which a non-citizen of a country may acquire citizenship or nationality of that country. It may be done automatically by a statute, i.e., without any effort on the part of the in ...
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 language in the Fourteenth Amendment encompassed the circumstances of his birth and could not be limited in its effect by an act of
Congress A congress is a formal meeting of the representatives of different countries, constituent states, organizations, trade unions, political parties, or other groups. The term originated in Late Middle English to denote an encounter (meeting of ...
. 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 language of the Fourteenth Amendment in a way that granted U.S. citizenship to children born of foreigners (a concept known as ''
jus soli ''Jus soli'' ( , , ; meaning "right of soil"), commonly referred to as birthright citizenship, is the right of anyone born in the territory of a state to nationality or citizenship. ''Jus soli'' was part of the English common law, in cont ...
''), with only a limited set of exceptions mostly based in
English common law English law is the common law legal system of England and Wales, comprising mainly criminal law and civil law, each branch having its own courts and procedures. Principal elements of English law Although the common law has, historically, be ...
. The court's dissenters argued that being subject to the jurisdiction of the United States meant not being subject to any foreign power—that is, not being claimed as a citizen by another country via ''
jus sanguinis ( , , ; 'right of blood') is a principle of nationality law by which citizenship is determined or acquired by the nationality or ethnicity of one or both parents. Children at birth may be citizens of a particular state if either or both of th ...
'' (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".''Wong Kim Ark'', 169 U.S. at 715. In the words of a 2007 legal analysis of events following the ''Wong Kim Ark'' decision, "The parameters of the ''jus soli'' principle, as stated by the court in ''Wong Kim Ark'', have never been seriously questioned by the Supreme Court, and have been accepted as dogma by lower courts." A 2010 review of the history of the Citizenship Clause notes that the ''Wong Kim Ark'' decision held that the guarantee of
birthright citizenship ''Jus soli'' ( , , ; meaning "right of soil"), commonly referred to as birthright citizenship, is the right of anyone born in the territory of a state to nationality or citizenship. ''Jus soli'' was part of the English common law, in contras ...
"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".Epps (2010), p. 332. Since the 1990s, however, controversy has arisen over the longstanding practice of granting automatic citizenship to U.S.-born children of
illegal immigrants Illegal immigration is the migration of people into a country in violation of the immigration laws of that country or the continued residence without the legal right to live in that country. Illegal immigration tends to be financially upwa ...
, and legal scholars disagree over whether the ''Wong Kim Ark'' precedent applies when alien parents are in the country illegally. Attempts have been made from time to time in Congress to restrict birthright citizenship, either via
statutory A statute is a formal written enactment of a legislative authority that governs the legal entities of a city, state, or country by way of consent. Typically, statutes command or prohibit something, or declare policy. Statutes are rules made by le ...
redefinition of the term ''jurisdiction'', or by overriding both the ''Wong Kim Ark'' ruling and the Citizenship Clause itself through an amendment to the Constitution, but no such proposal has been enacted.


Background


Early history of United States citizenship law

United States
citizenship Citizenship is a "relationship between an individual and a state to which the individual owes allegiance and in turn is entitled to its protection". Each state determines the conditions under which it will recognize persons as its citizens, and ...
law is founded on two traditional principles—''
jus soli ''Jus soli'' ( , , ; meaning "right of soil"), commonly referred to as birthright citizenship, is the right of anyone born in the territory of a state to nationality or citizenship. ''Jus soli'' was part of the English common law, in cont ...
'' ("right of the soil"; a "
common law In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omniprese ...
" doctrine), and ''
jus sanguinis ( , , ; 'right of blood') is a principle of nationality law by which citizenship is determined or acquired by the nationality or ethnicity of one or both parents. Children at birth may be citizens of a particular state if either or both of th ...
'' ("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 his or her place of birth, but instead follow the status of a parent (specifically, the father—or, in the case of an
illegitimate Legitimacy, in traditional Western common law, is the status of a child born to parents who are legally married to each other, and of a child conceived before the parents obtain a legal divorce. Conversely, ''illegitimacy'', also known as '' ...
birth, the mother). 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 Slavery and enslavement are both the state and the condition of being a slave—someone forbidden to quit one's service for an enslaver, and who is treated by the enslaver as property. Slavery typically involves slaves being made to perf ...
before the
American Civil War The American Civil War (April 12, 1861 – May 26, 1865; also known by Names of the American Civil War, other names) was a civil war in the United States. It was fought between the Union (American Civil War), Union ("the North") and t ...
. Although there was no actual definition of citizenship in United States law until after the Civil War, it was generally accepted that anyone born in the United States was automatically a citizen. This applicability of ''jus soli'', via the common law inherited in the United States from England, was upheld in an 1844
New York New York most commonly refers to: * New York City, the most populous city in the United States, located in the state of New York * New York (state), a state in the northeastern United States New York may also refer to: Film and television * '' ...
state case, ''Lynch v. Clarke'', in which it was held that a woman born in
New York City New York, often called New York City or NYC, is the List of United States cities by population, most populous city in the United States. With a 2020 population of 8,804,190 distributed over , New York City is also the L ...
, of alien parents temporarily sojourning there, was a U.S. citizen. 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 The Naturalization Act of 1790 (, enacted March 26, 1790) was a law of the United States Congress that set the first uniform rules for the granting of United States citizenship by naturalization. The law limited naturalization to "free Whit ...
. Additionally, alien immigrants to the United States could acquire citizenship via a process of
naturalization Naturalization (or naturalisation) is the legal act or process by which a non-citizen of a country may acquire citizenship or nationality of that country. It may be done automatically by a statute, i.e., without any effort on the part of the in ...
—though access to naturalization was originally limited to "free white person .An_Act_to_establish_an_''[sic
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_103.__March_26,_1790.__"''Be_it_enacted''_..._That_any_alien,_being_a_free_white_person,_who_shall_have_resided_within_the_limits_and_under_the_jurisdiction_of_the_United_States_for_the_term_of_two_years,_may_be_admitted_to_become_a_citizen_thereof....__And_the_children_of_citizens_of_the_United_States,_that_may_be_born_beyond_sea,_or_out_of_the_limits_of_the_United_States,_shall_be_considered_as_natural_born_citizens:_''Provided,''_That_the_right_of_citizenship_shall_not_descend_to_persons_whose_fathers_have_never_been_resident_in_the_United_States...."
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103. March 26, 1790. "''Be it enacted'' ... That any alien, being a free white person, who shall have resided within the limits and under the jurisdiction of the United States for the term of two years, may be admitted to become a citizen thereof.... And the children of citizens of the United States, that may be born beyond sea, or out of the limits of the United States, shall be considered as natural born citizens: ''Provided,'' That the right of citizenship shall not descend to persons whose fathers have never been resident in the United States...." Ethnic groups of Africa">African
slaves Slavery and enslavement are both the state and the condition of being a slave—someone forbidden to quit one's service for an enslaver, and who is treated by the enslaver as property. Slavery typically involves slaves being made to perf ...
were originally excluded from United States citizenship. In 1857, the
United States Supreme Court The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that involve a point o ...
held in ''
Dred Scott v. Sandford ''Dred Scott v. Sandford'', 60 U.S. (19 How.) 393 (1857), was a landmark decision of the United States Supreme Court that held the U.S. Constitution did not extend American citizenship to people of black African descent, enslaved or free; th ...
'' that slaves, former slaves, and their descendants were not eligible under the Constitution to be citizens. 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 American Civil War, Civil War and the subsequent abolition of slavery, Congress enacted the
Civil Rights Act of 1866 The Civil Rights Act of 1866 (, enacted April 9, 1866, reenacted 1870) was the first United States federal law to define citizenship and affirm that all citizens are equally protected by the law. It was mainly intended, in the wake of the Amer ...
. 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". Concerns were raised that the citizenship guarantee in the Civil Rights Act might be repealed by a later Congress''Wong Kim Ark'', 169 U.S. at 675. "The same Congress, shortly afterwards, evidently thinking it unwise, and perhaps unsafe, to leave so important a declaration of rights to depend upon an ordinary act of legislation, which might be repealed by any subsequent Congress, framed the Fourteenth Amendment of the Constitution...." or struck down as unconstitutional by the courts.'' Cong. Globe,'' 39th Cong., 1st Sess
597
(February 2, 1866). "Congress has no power to make a citizen.... nlyto establish a uniform rule of naturalization."
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). Among the Fourteenth Amendment's many provisions was the
Citizenship Clause The Citizenship Clause is the first sentence of the Fourteenth Amendment to the United States Constitution, which was adopted on July 9, 1868, which states: This clause reversed a portion of the ''Dred Scott v. Sandford'' decision, which had d ...
, 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." The Citizenship Clause was proposed by Senator
Jacob M. Howard Jacob Merritt Howard (July 10, 1805 – April 2, 1871) was an American attorney and politician. He was most notable for his service as a U.S. Representative and U.S. Senator from the state of Michigan, and his political career spanned the Amer ...
of
Michigan Michigan () is a state in the Great Lakes region of the upper Midwestern United States. With a population of nearly 10.12 million and an area of nearly , Michigan is the 10th-largest state by population, the 11th-largest by area, and t ...
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. The heated debate on the proposed new language in the
Senate A senate is a deliberative assembly, often the upper house or chamber of a bicameral legislature. The name comes from the ancient Roman Senate (Latin: ''Senatus''), so-called as an assembly of the senior (Latin: ''senex'' meaning "the el ...
focused on whether Howard's proposed language would apply more broadly than the wording of the 1866 Civil Rights Act. 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."''Cong. Globe,'' 39th Cong., 1st Sess
2890
(May 30, 1866).
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"—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. Responding to concerns expressed by
Edgar Cowan Edgar Cowan (September 19, 1815August 31, 1885) was an American lawyer and Republican politician from Greensburg, Pennsylvania. He represented Pennsylvania in the United States Senate during the American Civil War. A native of Sewickley Towns ...
of
Pennsylvania Pennsylvania (; ( Pennsylvania Dutch: )), officially the Commonwealth of Pennsylvania, is a state spanning the Mid-Atlantic, Northeastern, Appalachian, and Great Lakes regions of the United States. It borders Delaware to its southeast, ...
that liberalizing the right to citizenship might result in certain states being taken over by large populations of undesirable foreign immigrants,
John Conness John Conness (September 22, 1821 – January 10, 1909) was a first-generation Irish-American businessman who served as a U.S. Senator (1863–1869) from California during the American Civil War and the early years of Reconstruction. He intr ...
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.
James R. Doolittle James Rood Doolittle (January 3, 1815July 27, 1897) was an American politician who served as a U.S. Senator from Wisconsin from March 4, 1857, to March 4, 1869. He was a strong supporter of President Abraham Lincoln's administration during the ...
of
Wisconsin Wisconsin () is a state in the upper Midwestern United States. Wisconsin is the 25th-largest state by total area and the 20th-most populous. It is bordered by Minnesota to the west, Iowa to the southwest, Illinois to the south, Lake M ...
objected that the citizenship provision would not be sufficiently narrow to exclude American Indians from citizenship, and in an attempt to address this issue, he proposed to add a phrase taken from the Civil Rights Act—"excluding Indians not taxed". Although most Senators agreed that birthright citizenship should not be extended to the Indians, a majority saw no need to clarify the issue, and Doolittle's proposal was voted down.''Cong. Globe,'' 39th Cong., 1st Sess. 2897 (May 30, 1866). Upon its return to the
House of Representatives House of Representatives is the name of legislative bodies in many countries and sub-national entitles. In many countries, the House of Representatives is the lower house of a bicameral legislature, with the corresponding upper house often c ...
, 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, and declared to have been ratified on July 28, 1868. In 2006,
Goodwin Liu Goodwin Hon Liu (born October 19, 1970; Chinese: 劉弘威) is an American lawyer, educator and an associate justice of the Supreme Court of California. Before his appointment by California Governor Jerry Brown, Liu was Associate Dean and Profes ...
, then an assistant professor at the
Boalt Hall The University of California, Berkeley, School of Law (commonly known as Berkeley Law or UC Berkeley School of Law) is the law school of the University of California, Berkeley, a public research university in Berkeley, California. It is one ...
law school of the
University of California, Berkeley The University of California, Berkeley (UC Berkeley, Berkeley, Cal, or California) is a public land-grant research university in Berkeley, California. Established in 1868 as the University of California, it is the state's first land-grant un ...
, and later an
Associate Justice Associate justice or associate judge (or simply associate) is a judicial panel member who is not the chief justice in some jurisdictions. The title "Associate Justice" is used for members of the Supreme Court of the United States and some sta ...
of the
California Supreme Court The Supreme Court of California is the highest and final court of appeals in the courts of the U.S. state of California. It is headquartered in San Francisco at the Earl Warren Building, but it regularly holds sessions in Los Angeles and Sac ...
, 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. Elizabeth Wydra, chief counsel of the Constitutional Accountability Center (a progressive
think tank A think tank, or policy institute, is a research institute that performs research and advocacy concerning topics such as social policy, political strategy, economics, military, technology, and culture. Most think tanks are non-govern ...
), 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)—an interpretation shared by
Texas Texas (, ; Spanish: ''Texas'', ''Tejas'') is a state in the South Central region of the United States. At 268,596 square miles (695,662 km2), and with more than 29.1 million residents in 2020, it is the second-largest U.S. state by ...
Solicitor General James C. Ho. 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".


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 The California Gold Rush (1848–1855) was a gold rush that began on January 24, 1848, when gold was found by James W. Marshall at Sutter's Mill in Coloma, California. The news of gold brought approximately 300,000 people to California f ...
of 1849, then moving on to railroad construction, farming, and work in cities. An 1868 treaty (named the
Burlingame Treaty The Burlingame Treaty (), also known as the Burlingame–Seward Treaty of 1868, was a landmark treaty between the United States and Qing China, amending the Treaty of Tientsin, to establish formal friendly relations between the two nations, with ...
after one of the American negotiators) expanded trade and migration between the United States and China. The treaty did not address the citizenship of children born in the United States to Chinese parents, or vice versa. Regarding
naturalization Naturalization (or naturalisation) is the legal act or process by which a non-citizen of a country may acquire citizenship or nationality of that country. It may be done automatically by a statute, i.e., without any effort on the part of the in ...
(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." 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. In this climate of popular anti-Chinese sentiment, Congress in 1882 enacted the
Chinese Exclusion Act The Chinese Exclusion Act was a United States federal law signed by President Chester A. Arthur on May 6, 1882, prohibiting all immigration of Chinese laborers for 10 years. The law excluded merchants, teachers, students, travelers, and diplo ...
, which placed limits on Chinese immigration to the United States. (The original Chinese Exclusion Act was amended several times—such as by the 1888 Scott Act and the 1892
Geary Act The Geary Act was a United States law that extended the Chinese Exclusion Act of 1882 by adding onerous new requirements. It was written by California Representative Thomas J. Geary and was passed by Congress on . The law required all Chinese r ...
—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.


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. The Supreme Court ruled in an 1884 case ('' Elk v. Wilkins'') that an Indian born on a
reservation __NOTOC__ Reservation may refer to: Places Types of places: * Indian reservation, in the United States * Military base, often called reservations * Nature reserve Government and law * Reservation (law), a caveat to a treaty * Reservation in India, ...
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.'' Elk v. Wilkins'',
Bethany R. Berger, Birthright Citizenship on Trial: Elk v. Wilkins and United States v. Wong Kim Ark, Cardozo Law Review (forthcoming 2016)
/ref> American Indians were subsequently granted citizenship by an act of Congress in 1924.Berger, Birthright Citizenship on Trial
p. 1192.
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''.''In re Look Tin Sing'', 21 F. 905 ( Cir.Cal. 1884). Look Tin Sing was born in
Mendocino, California Mendocino ( Spanish for "of Mendoza") is an unincorporated community and census-designated place (CDP) in Mendocino County, California, United States. Mendocino is located south of Fort Bragg at an elevation of . The population of the CDP was 9 ...
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. Look's case was heard in the federal circuit court for California by U.S. Supreme Court Associate Justice
Stephen J. Field Stephen Johnson Field (November 4, 1816 – April 9, 1899) was an American jurist. He was an Associate Justice of the Supreme Court of the United States, Associate Justice of the United States Supreme Court from May 20, 1863, to December 1, 1897 ...
and two other federal judges. Lucy E. Salyer, a history professor at the
University of New Hampshire The University of New Hampshire (UNH) is a public land-grant research university with its main campus in Durham, New Hampshire. It was founded and incorporated in 1866 as a land grant college in Hanover in connection with Dartmouth College ...
, 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.Salyer (2005), p. 60. 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. The ''Look Tin Sing'' ruling 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''.''Ex parte Chin King, Ex parte Chan San Hee'', 35 F. 354 ( Cir.Ore. 1888). 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 The United States Court of Appeals for the Ninth Circuit (in case citations, 9th Cir.) is the U.S. federal court of appeals that has appellate jurisdiction over the U.S. district courts in the following federal judicial districts: * District ...
) 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. This case was also never brought before the Supreme Court. The Supreme Court's 1873 ''
Slaughterhouse Cases The ''Slaughter-House Cases'', 83 U.S. (16 Wall.) 36 (1873), was a landmark U.S. Supreme Court decision consolidating several cases that held that the Privileges or Immunities Clause of the Fourteenth Amendment to the U.S. Constitution only prote ...
'' decision 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." However, since the ''Slaughterhouse Cases'' did not deal with claims of birthright citizenship, this comment was dismissed in ''Wong Kim Ark''''Wong Kim Ark'', 169 U.S. at 678. "This was wholly aside from the question in judgment, and from the course of reasoning bearing upon that question." and later cases as a passing remark (''
obiter dictum ''Obiter dictum'' (usually used in the plural, ''obiter dicta'') is a Latin phrase meaning "other things said",''Black's Law Dictionary'', p. 967 (5th ed. 1979). that is, a remark in a legal opinion that is "said in passing" by any judge or arbit ...
'') lacking any force as a controlling
precedent A precedent is a principle or rule established in a previous legal case that is either binding on or persuasive for a court or other tribunal when deciding subsequent cases with similar issues or facts. Common-law legal systems place great v ...
. As to whether the ''Wong Kim Ark'' decision was correct on this point or not, modern scholars are divided.Epps (2010), pp. 348–349.


Wong Kim Ark

Wong Kim Ark, a nonstandard
Taishanese Taishanese (), alternatively romanized in Cantonese as Toishanese or Toisanese, in local dialect as Hoisanese or Hoisan-wa, is a dialect of Yue Chinese native to Taishan, Guangdong. Although it is related to Cantonese, Taishanese has littl ...
romanization of his name in Chinese (;
Taishanese Taishanese (), alternatively romanized in Cantonese as Toishanese or Toisanese, in local dialect as Hoisanese or Hoisan-wa, is a dialect of Yue Chinese native to Taishan, Guangdong. Although it is related to Cantonese, Taishanese has littl ...
: Wōng Gim-ak), was born in
San Francisco San Francisco (; Spanish for " Saint Francis"), officially the City and County of San Francisco, is the commercial, financial, and cultural center of Northern California. The city proper is the fourth most populous in California and 17t ...
,
California California is a state in the Western United States, located along the Pacific Coast. With nearly 39.2million residents across a total area of approximately , it is the most populous U.S. state and the 3rd largest by area. It is also the m ...
, at 751 Sacramento Street, the address of a
Chinatown A Chinatown () is an ethnic enclave of Chinese people located outside Greater China, most often in an urban setting. Areas known as "Chinatown" exist throughout the world, including Europe, North America, South America, Asia, Africa and Aust ...
business (Quong Sing) maintained by his merchant parents. Various sources state or imply his year of birth as being 1873, 1871, First page of testimony given by Wong Kim Ark at an immigration hearing for his eldest son, Wong Yoke Fun, on December 6, 1910. U.S.
National Archives and Records Administration The National Archives and Records Administration (NARA) is an " independent federal agency of the United States government within the executive branch", charged with the preservation and documentation of government and historical records. It ...
,
San Bruno, California San Bruno ( Spanish for " St. Bruno") is a city in San Mateo County, California, United States, incorporated in 1914. The population was 43,908 at the 2020 United States Census. The city is between South San Francisco and Millbrae, adjacent to S ...
. (Wong Kim Ark gives his birthdate as "T. C. 10, 9th month, 7th day"—a Chinese imperial calendar date said in the transcript of the testimony to correspond to October 20, 1871.)
or 1868. First page of testimony given by Wong Kim Ark at an immigration hearing for his third son, Wong Yook Thue, on March 20, 1925. U.S. National Archives and Records Administration, San Bruno, California. (Wong Kim Ark gives his age as 56. The immigration board also acknowledges the presence at the hearing of Wong Yook Thue's "prior landed alleged brother Wong Yook Sue".) His father, Wong Si Ping (), and mother, Wee Lee (), emigrated from
Taishan, Guangdong Taishan (), alternately romanized in Cantonese as Toishan or Toisan, in local dialect as Hoisan, and formerly known as Xinning or Sunning (), is a county-level city in the southwest of Guangdong province, China. It is administered as part o ...
, China and were not United States citizens, as the
Naturalization Law of 1802 The Naturalization Law of 1802 (, enacted April 14, 1802) was passed by the United States Congress to amend the residency and notice periods of the previous Naturalization Act of 1798. It restored the less prohibitive provisions of the Naturali ...
had made them ineligible for naturalization either before or after his birth.Glen (2007), p. 74. Wong did not become a merchant like his father, but worked as a cook in
Chinatown A Chinatown () is an ethnic enclave of Chinese people located outside Greater China, most often in an urban setting. Areas known as "Chinatown" exist throughout the world, including Europe, North America, South America, Asia, Africa and Aust ...
restaurants. 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 The Chinese Exclusion Act was a United States federal law signed by President Chester A. Arthur on May 6, 1882, prohibiting all immigration of Chinese laborers for 10 years. The law excluded merchants, teachers, students, travelers, and diplo ...
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. In November 1894, Wong sailed to China for another temporary visit, to rejoin his wife at his family's village in
Taishan, Guangdong Taishan (), alternately romanized in Cantonese as Toishan or Toisan, in local dialect as Hoisan, and formerly known as Xinning or Sunning (), is a county-level city in the southwest of Guangdong province, China. It is administered as part o ...
. He met his oldest son for the first time, and his second son was conceived. But when he returned in August 1895 by SS Coptic, he was detained at the
Port of San Francisco The Port of San Francisco is a semi-independent organization that oversees the port facilities at San Francisco, California, United States. It is run by a five-member commission, appointed by the Mayor and approved by the Board of Supervisors. Th ...
by the Collector of
Customs Customs is an authority or agency in a country responsible for collecting tariffs and for controlling the flow of goods, including animals, transports, personal effects, and hazardous items, into and out of a country. Traditionally, 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.''Wong Kim Ark'', 169 U.S. at 650. "Because the said Wong Kim Ark, although born in the city and county of San Francisco, State of California, United States of America, is not, under the laws of the State of California and of the United States, a citizen thereof, the mother and father of the said Wong Kim Ark being Chinese persons and subjects of the Emperor of China, and the said Wong Kim Ark being also a Chinese person and a subject of the Emperor of China." Wong was confined for five months on steamships off the coast of San Francisco while his case was being tried. According to Salyer, the San Francisco attorney George Collins had tried to persuade the federal
Justice Department A justice ministry, ministry of justice, or department of justice is a ministry or other government agency in charge of the administration of justice. The ministry or department is often headed by a minister of justice (minister for justice in a ...
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. Eventually, Collins was able to convince U.S. Attorney Henry Foote, who "searched for a viable test case and settled on Wong Kim Ark".Salyer (2005), p. 66. With the assistance of legal representation by the
Chinese Consolidated Benevolent Association The Chinese Consolidated Benevolent Association (CCBA) ( in the Western United States, Midwest, and Western Canada; 中華公所 (中华公所) ''zhōnghuá gōngsuǒ'' ( Jyutping: zung1wa4 gung1so2) in the East) is a historical Chinese associa ...
,Salyer (2005), p. 67. Wong Kim Ark challenged the refusal to recognize his birth claim to U.S. citizenship, and a petition for a writ of ''
habeas corpus ''Habeas corpus'' (; from Medieval Latin, ) is a recourse in law through which a person can report an unlawful detention or imprisonment to a court and request that the court order the custodian of the person, usually a prison official, ...
'' was filed on his behalf in
federal district court The United States district courts are the trial courts of the U.S. federal judiciary. There is one district court for each federal judicial district, which each cover one U.S. state or, in some cases, a portion of a state. Each district cou ...
. The arguments presented before District Judge
William W. Morrow William W. Morrow (July 15, 1843 – July 24, 1929) was a United States representative from California, a United States district judge of the United States District Court for the Northern District of California and a United States Circuit Judge ...
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. 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 In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omniprese ...
inherited by the United States from England, that would encompass essentially everyone born in the U.S. via the principle of ''
jus soli ''Jus soli'' ( , , ; meaning "right of soil"), commonly referred to as birthright citizenship, is the right of anyone born in the territory of a state to nationality or citizenship. ''Jus soli'' was part of the English common law, in cont ...
'' (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 International law (also known as public international law and the law of nations) is the set of rules, norms, and standards generally recognized as binding between states. It establishes normative guidelines and a common conceptual framework for ...
, which would exclude parents and their children who owed allegiance to another country via the principle of ''
jus sanguinis ( , , ; 'right of blood') is a principle of nationality law by which citizenship is determined or acquired by the nationality or ethnicity of one or both parents. Children at birth may be citizens of a particular state if either or both of th ...
'' (citizenship inherited from a parent).''In re Wong Kim Ark'', 71 F. at 386. 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.Woodworth (1896), p. 538. "The Supreme Court, singular to say, has never directly passed on the political status of children born in this country of foreign parents. The question was not directly involved in the Slaughter-house cases, and what the court there stated is, therefore, dictum, and was so treated by Judge Morrow in the Wong Kim Ark case." 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 The ''Slaughter-House Cases'', 83 U.S. (16 Wall.) 36 (1873), was a landmark U.S. Supreme Court decision consolidating several cases that held that the Privileges or Immunities Clause of the Fourteenth Amendment to the U.S. Constitution only prote ...
'' ruling,Woodworth (1896), p. 537. "On the other hand, the Supreme Court, in the Slaughter-house cases, used language which indicates that it then considered the provision as declaratory of the doctrine of the law of nations." but the district judge concluded that the language in question was ''obiter dictum'' and not directly relevant to the case at hand. The government also cited a similar statement in ''Elk v. Wilkins'', but the judge was not convinced by this argument either. 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 The United States Court of Appeals for the Ninth Circuit (in case citations, 9th Cir.) is the U.S. federal court of appeals that has appellate jurisdiction over the U.S. district courts in the following federal judicial districts: * District ...
were concerned. 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 manshould be born or naturalized in the United States to be a citizen of the Union." Concluding that the ''Look Tin Sing'' decision constituted a controlling
precedent A precedent is a principle or rule established in a previous legal case that is either binding on or persuasive for a court or other tribunal when deciding subsequent cases with similar issues or facts. Common-law legal systems place great v ...
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, the judge declared Wong Kim Ark to be a citizen because he was born in the U.S. The U.S. government
appealed In law, an appeal is the process in which cases are reviewed by a higher authority, where parties request a formal change to an official decision. Appeals function both as a process for error correction as well as a process of clarifying and ...
the district court ruling directly to the United States Supreme Court. 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.Salyer (2005), p. 69. Oral arguments before the Supreme Court were held on March 5, 1897. Solicitor General
Holmes Conrad Holmes Conrad (January 31, 1840 – September 4, 1915) was an American politician, lawyer and military officer. Early life Conrad was born in Winchester, Virginia. He was the son of Robert Young Conrad, a prominent lawyer of Winchester, a ...
presented the government's case; Wong was represented before the Court by Maxwell Evarts, former U.S. Assistant
Attorney General In most common law jurisdictions, the attorney general or attorney-general (sometimes abbreviated AG or Atty.-Gen) is the main legal advisor to the government. The plural is attorneys general. In some jurisdictions, attorneys general also have exec ...
J. Hubley Ashton, and Thomas D. Riordan. The Supreme Court considered the "single question" in the case to be "whether a child born in the United States, of parent of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil 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." 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."


Opinion of the Court

In a 6–2 decision issued on March 28, 1898, 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." The opinion of the Court was written by Associate Justice Horace Gray and was joined by Associate Justices David J. Brewer,
Henry B. Brown Henry Billings Brown (March 2, 1836 – September 4, 1913) was an associate justice of the Supreme Court of the United States from 1891 to 1906. Although a respected lawyer and U.S. District Judge before ascending to the high court, Brown ...
, George Shiras Jr.,
Edward Douglass White Edward Douglass White Jr. (November 3, 1844 – May 19, 1921) was an American politician and jurist from Louisiana. White was a U.S. Supreme Court justice for 27 years, first as an associate justice from 1894 to 1910, then as the ninth chief ...
, and
Rufus W. Peckham Rufus W. Peckham (November 8, 1838 – October 24, 1909) was an American lawyer and jurist who served as an Associate Justice of the U.S. Supreme Court from 1895 to 1909, and is the most recent Democratic nominee approved by a Republican-majori ...
. Upholding the concept of ''jus soli'' (citizenship based on place of birth), the Court held that the Citizenship Clause needed to be interpreted in light of English common law, which had included as subjects virtually all native-born children, excluding only those who were 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.Glen (2007), pp. 74–76. "At common law, the fundamental principle relating to English nationality was that of ''jus soli''; children born in England, including to friendly aliens, would be deemed natural-born subjects. The only exceptions to this principle were children born to foreign diplomats and those born to alien enemies.... e Fourteenth Amendment, by its clear terms, establish the U.S. citizenship of every child born within its jurisdiction, no matter the race or color, so long as they do not fall within one of the recognized exceptions to ''jus soli''." 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).''Wong Kim Ark'', 169 U.S. at 693. "The foregoing considerations and authorities irresistibly lead us to these conclusions: the Fourteenth 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, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes." 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". Quoting approvingly from an 1812 case, ''
The Schooner Exchange v. M'Faddon ''The Schooner Exchange v. M'Faddon'', 11 U.S. (7 Cranch) 116 (1812), is a United States Supreme Court case on the jurisdiction of federal courts over a claim against a friendly foreign military vessel visiting an American port. The court interpret ...
'', in which Chief Justice
John Marshall John Marshall (September 24, 1755July 6, 1835) was an American politician and lawyer who served as the fourth Chief Justice of the United States from 1801 until his death in 1835. He remains the longest-serving chief justice and fourth-longes ...
said, "The jurisdiction of the nation within its own territory is necessarily exclusive and absolute"—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 precedentSemonche (1978), p. 112. "Gray then sidestepped language in earlier opinions of the Court that said children born of alien parents are not citizens by saying, in effect, that such conclusions were gratuitous statements not necessary to the decisions in those cases and therefore entitled to no weight as precedent."—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. An act of Congress, they held, does not trump the Constitution; such a law "cannot control
he Constitution's He or HE may refer to: Language * He (pronoun), an English pronoun * He (kana), the romanization of the Japanese kana へ * He (letter), the fifth letter of many Semitic alphabets * He (Cyrillic), a letter of the Cyrillic script called ''He'' in ...
meaning, or impair its effect, but must be construed and executed in subordination to its provisions."''Wong Kim Ark'', 169 U.S. at 699. "The acts of Congress known as the Chinese Exclusion Acts, the earliest of which was passed some fourteen years after the adoption of the Constitutional Amendment, cannot control its meaning or impair its effect, but must be construed and executed in subordination to its provisions." The majority opinion referred to ''
Calvin's Case ''Calvin's Case'' (1608), 77 ER 377, (1608) Co Rep 1a, also known as the ''Case of the Postnati'', was a 1608 English legal decision establishing that a child born in Scotland, after the Union of the Crowns under King James VI and I in 1603, wa ...
'' (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".


Dissent

Chief Justice
Melville Fuller Melville Weston Fuller (February 11, 1833 – July 4, 1910) was an American politician, attorney, and jurist who served as the eighth chief justice of the United States from 1888 until his death in 1910. Staunch conservatism marked his ...
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". The dissenters argued that the history of U.S. citizenship law had broken with English common law tradition after
independence Independence is a condition of a person, nation, country, or state in which residents and population, or some portion thereof, exercise self-government, and usually sovereignty, over its territory. The opposite of independence is the stat ...
—citing as an example the embracing in the U.S. of the right of expatriation (giving up of one's native citizenship) and the rejection of the contrary British doctrine of perpetual allegiance. The dissenters argued that the principle of ''
jus sanguinis ( , , ; 'right of blood') is a principle of nationality law by which citizenship is determined or acquired by the nationality or ethnicity of one or both parents. Children at birth may be citizens of a particular state if either or both of th ...
'' (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. Based on an assessment of U.S. and Chinese
treaty A treaty is a formal, legally binding written agreement between actors in international law. It is usually made by and between sovereign states, but can include international organizations, individuals, business entities, and other legal per ...
and naturalization law, the dissenters claimed that "the children of Chinese born in this country do not, ''
ipso facto is a Latin phrase, directly translated as "by the fact itself", which means that a specific phenomenon is a ''direct'' consequence, a resultant ''effect'', of the action in question, instead of being brought about by a previous action. It is a ...
'', become citizens of the United States unless the fourteenth amendment overrides both treaty and statute."''Wong Kim Ark'', 169 U.S. at 731. Pointing to the language of the
Civil Rights Act of 1866 The Civil Rights Act of 1866 (, enacted April 9, 1866, reenacted 1870) was the first United States federal law to define citizenship and affirm that all citizens are equally protected by the law. It was mainly intended, in the wake of the Amer ...
, 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.Eastman (2006), p. 2. "The positively phrased 'subject to the jurisdiction' of the United States might easily have been intended to describe a broader grant of citizenship than the negatively phrased language from the 1866 Act.... But the relatively sparse debate we have regarding this provision of the Fourteenth Amendment does not support such a reading."''Wong Kim Ark'', 169 U.S. at 721. In the dissenters' view, excessive reliance on ''
jus soli ''Jus soli'' ( , , ; meaning "right of soil"), commonly referred to as birthright citizenship, is the right of anyone born in the territory of a state to nationality or citizenship. ''Jus soli'' was part of the English common law, in cont ...
'' (birthplace) as the principal determiner of citizenship would lead to an untenable state of affairs in which "the children of foreigners, happening to be born to them while passing through the country, whether of royal parentage or not, or whether of the Mongolian, Malay or other race, were eligible to the presidency, while children of our citizens, born abroad, were not." The dissenters acknowledged that other children of foreigners—including former slaves—had, 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, Chinese laws of the time which made renouncing allegiance to the
Chinese emperor ''Huangdi'' (), translated into English as Emperor, was the superlative title held by monarchs of China who ruled various imperial regimes in Chinese history. In traditional Chinese political theory, the emperor was considered the Son of Heave ...
a
capital crime Capital punishment, also known as the death penalty, is the state-sanctioned practice of deliberately killing a person as a punishment for an actual or supposed crime, usually following an authorized, rule-governed process to conclude that ...
, and the provisions of the Chinese Exclusion Act making Chinese immigrants already in the United States ineligible for citizenship. The question for the dissenters was "not whether ong Kim Arkwas 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". 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." Commenting on the ''Wong Kim Ark'' case shortly after the issuance of the Court's ruling in 1898, San Francisco attorney Marshall B. Woodworth 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 y its own forcethe sole and exclusive test of citizenship of the United States".Woodworth (1898), p. 561.


Subsequent developments


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 " e fact that the decision of the court was not unanimous indicates that the question is at least debatable." 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". Another analysis of the case, published by the ''
Yale Yale University is a private research university in New Haven, Connecticut. Established in 1701 as the Collegiate School, it is the third-oldest institution of higher education in the United States and among the most prestigious in the wor ...
Law Journal'' (1898), favored the dissenting view. An editorial published in the ''
San Francisco Chronicle The ''San Francisco Chronicle'' is a newspaper serving primarily the San Francisco Bay Area of Northern California. It was founded in 1865 as ''The Daily Dramatic Chronicle'' by teenage brothers Charles de Young and Michael H. de Young. The pa ...
'' 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."


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 ( , , ; 'right of blood') is a principle of nationality law by which citizenship is determined or acquired by the nationality or ethnicity of one or both parents. Children at birth may be citizens of a particular state if either or both of th ...
'', 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. Wong's other three sons came to the United States between 1924 and 1926 and were accepted as citizens. Last page of the transcript of Wong Yook Thue's immigration hearing, showing that he is being admitted to the United States. March 20, 1925. U.S. National Archives and Records Administration, San Bruno, California. (This page also mentions that "another alleged son Wong Yook Seu " was refused admission to the U.S. in 1924, but was "subsequently landed by the Department on appeal".) 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 United States Merchant Marines are United States civilian mariners and U.S. civilian and federally owned merchant vessels. Both the civilian mariners and the merchant vessels are managed by a combination of the government and private sectors, an ...
.


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'')."Acquisition of U.S. Citizenship by Birth in the United States", 7 FAM 1111(a). 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; however, Congress eventually granted full citizenship to American Indians via the Indian Citizenship Act of 1924. Restrictions on immigration and naturalization of Chinese were eventually lifted as a consequence of the
Chinese Exclusion Repeal Act of 1943 The Chinese Exclusion Repeal Act of 1943, also known as the Magnuson Act, was an immigration law proposed by U.S. Representative (later Senator) Warren G. Magnuson of Washington and signed into law on December 17, 1943, in the United States. It ...
(also known as the Magnuson Act) and the
Immigration and Nationality Act of 1965 The Immigration and Nationality Act of 1965, also known as the Hart–Celler Act and more recently as the 1965 Immigration Act, is a federal law passed by the 89th United States Congress and signed into law by President Lyndon B. Johnson. The ...
.


''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 asbeen accepted as dogma by lower courts". Citizenship cases since ''Wong Kim Ark'' have dealt mainly with situations falling outside the bounds of the Citizenship ClauseGlen (2007), p. 80.—such as citizenship via ''jus sanguinis'' for foreign-born children of U.S. citizens, or circumstances under which U.S. citizenship may be lost.See, e.g., '' Nishikawa v. Dulles'', . "Nishikawa was born in this country while subject to its jurisdiction; therefore, American citizenship is his constitutional birthright. See ''United States v. Wong Kim Ark''.... What the Constitution has conferred, neither the Congress, nor the Executive, nor the Judiciary, nor all three in concert, may strip away." 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. The court's holding that the language of the Constitution should be understood in light of the
common law In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omniprese ...
has been cited in numerous Supreme Court decisions dealing with the interpretation of the Constitution or acts of Congress. The ''Wong Kim Ark'' court's understanding of Fourteenth Amendment jurisdiction was also cited in a 1982 case involving the rights of illegal immigrants. ''Plyler v. Doe'', . "Justice Gray, writing for the Court in ''United States v. Wong Kim Ark'' ... detailed at some length the history of the Citizenship Clause, and the predominantly geographic sense in which the term 'jurisdiction' was used. He further noted that it was 'impossible to construe the words "subject to the jurisdiction thereof" ... as less comprehensive than the words "within its jurisdiction" ... or to hold that persons "within the jurisdiction" of one of the States of the Union are not "subject to the jurisdiction of the United States."' ... As one early commentator noted, given the historical emphasis on geographic territoriality, bounded only, if at all, by principles of sovereignty and allegiance, no plausible distinction with respect to Fourteenth Amendment 'jurisdiction' can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful." An unsuccessful effort was made in 1942 by the
Native Sons of the Golden West The Native Sons of the Golden West is a fraternal service organization founded in the U.S. state of California in 1875, dedicated to historic preservation, documentation of historic structures and places in the state, the placement of historic ...
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. 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". A federal district court and the
Ninth Circuit Court of Appeals The United States Court of Appeals for the Ninth Circuit (in case citations, 9th Cir.) is the U.S. federal court of appeals that has appellate jurisdiction over the U.S. district courts in the following federal judicial districts: * District ...
summarily rejected this contention, each citing ''Wong Kim Ark'' as a controlling
precedent A precedent is a principle or rule established in a previous legal case that is either binding on or persuasive for a court or other tribunal when deciding subsequent cases with similar issues or facts. Common-law legal systems place great v ...
, and the Supreme Court declined to hear the case. 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).


''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"'Subject to the Jurisdiction of the United States'", 7 FAM 1111(d). "All children born in and subject, at the time of birth, to the jurisdiction of the United States acquire U.S. citizenship at birth ''even if their parents were in the United States illegally at the time of birth.'' ... Pursuant to 'Wong Kim Ark'' (a) Acquisition of U.S. citizenship generally is not affected by the fact that the parents may be in the United States temporarily or illegally; and that (b) A child born in an immigration detention center physically located in the United States is considered to have been born in the United States and be subject to its jurisdiction. This is so even if the child's parents have not been legally admitted to the United States and, for immigration purposes, may be viewed as not being in the United States."—controversially dubbed the "
anchor baby Anchor baby is a term (regarded by some as a pejorative) used to refer to a child born to a non-citizen mother in a country that has birthright citizenship which will therefore help the mother and other family members gain legal residency. In the ...
" situation by some media correspondents and advocacy groups. Public debate over the issue has resulted in renewed discussion of the ''Wong Kim Ark'' decision. 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 John Charles Eastman (born 1960) is an American lawyer who is the founding director of the Center for Constitutional Jurisprudence, a public interest law firm affiliated with the conservative think tank Claremont Institute. He is a former profe ...
, a former dean of the
Chapman University School of Law Chapman University's Dale E. Fowler School of Law, commonly referred to as Chapman University School of Law or Chapman Law School, is a private, non-profit law school located in Orange, California. The school offers the Juris Doctor degree (JD), ...
, 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.Eastman (2006), pp. 3–4. "Such was the interpretation of the Citizenship Clause initially given by the Supreme Court, and it was the correct interpretation. As Thomas Cooley noted in his treatise, 'subject to the jurisdiction' of the United States 'meant full and complete jurisdiction to which citizens are generally subject, and not any qualified and partial jurisdiction, such as may consist with allegiance to some other government.'" Eastman further argues that the ''Wong Kim Ark'' decision was fundamentally flawed in the way it dealt with the concept of jurisdiction, and that the Indian Citizenship Act of 1924—which followed ''Wong Kim Ark''—would not have been necessary if Congress had believed "that the Citizenship Clause confers citizenship merely by accident of birth." A similar analysis of the jurisdiction question has been proposed by Professor Peter H. Schuck of the Yale School of Law and Rogers M. Smith, political science professor at Yale. According to law professor
Lino Graglia Lino Anthony Graglia (January 22, 1930January 30, 2022) was the A. W. Walker Centennial Chair in Law at the University of Texas specializing in antitrust litigation. He earned a BA from the City College of New York in 1952, and an LLB from Colum ...
of the
University of Texas The University of Texas at Austin (UT Austin, UT, or Texas) is a public research university in Austin, Texas. It was founded in 1883 and is the oldest institution in the University of Texas System. With 40,916 undergraduate students, 11,075 ...
, 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". Countering this view,
Garrett Epps Garrett Epps (born 1950 in Richmond, Virginia) is an American legal scholar, novelist, and journalist. He was professor of law at the University of Baltimore until his retirement in June 2020; previously he was the Orlando J. and Marian H. Hollis P ...
—a professor of law at the
University of Baltimore The University of Baltimore (UBalt, UB) is a public university in Baltimore, Maryland. It is part of the University System of Maryland. UBalt's schools and colleges provide education in business, law, public affairs, and the applied arts and sc ...
—has stated that "In the case of ''United States v. Wong Kim Ark'', the United States Supreme Court held that this guarantee f birthright citizenshipapplies 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." 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."Epps (2010), p. 333. 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.Epps (2010), p. 381. Cristina Rodriguez, a professor at the
New York University New York University (NYU) is a private research university in New York City. Chartered in 1831 by the New York State Legislature, NYU was founded by a group of New Yorkers led by then- Secretary of the Treasury Albert Gallatin. In 1832, th ...
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 status." 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."Rodriguez (2009), pp. 1363–1364. James C. Ho, currently a judge of the
Fifth Circuit Court of Appeals The United States Court of Appeals for the Fifth Circuit (in case citations, 5th Cir.) is a federal court with appellate jurisdiction over the district courts in the following federal judicial districts: * Eastern District of Louisiana * Mi ...
, 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." 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.Ho (2006), p. 372. "Repeal proponents ... quote Howard's introductory remarks to state that birthright citizenship 'will not, of course, include ... foreigners.' But that reads Howard's reference to 'aliens, who belong to the families of ambassadors or foreign ministers' out of the sentence. It also renders completely meaningless the subsequent dialogue between Senators Cowan and Conness over the wisdom of extending birthright citizenship to the children of Chinese immigrants and Gypsies."
Eugene Volokh Eugene Volokh (; born February 29, 1968 as Yevhen Volodymyrovych Volokh ( uk, Євге́н Володимирович Волох)) is an American legal scholar known for his scholarship in American constitutional law and libertarianism as well as ...
, a professor of law at the
UCLA School of Law The UCLA School of Law is one of 12 professional schools at the University of California, Los Angeles. UCLA Law has been consistently ranked by '' U.S. News & World Report'' as one of the top 20 law schools in the United States since the inception ...
, 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. The Supreme Court's 1982 '' Plyler v. Doe'' decision—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. A
Texas Texas (, ; Spanish: ''Texas'', ''Tejas'') is a state in the South Central region of the United States. At 268,596 square miles (695,662 km2), and with more than 29.1 million residents in 2020, it is the second-largest U.S. state by ...
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." A ''
dictum In general usage, a dictum ( in Latin; plural dicta) is an authoritative or dogmatic statement. In some contexts, such as legal writing and church cantata librettos, ''dictum'' can have a specific meaning. Legal writing In United States legal ter ...
'' 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 The Equal Protection Clause is part of the first section of the Fourteenth Amendment to the United States Constitution. The clause, which took effect in 1868, provides "''nor shall any State ... deny to any person within its jurisdiction the equal ...
) were essentially equivalent; that both expressions referred primarily to physical presence and not to political allegiance; and that the ''Wong Kim Ark'' decision benefited the children of illegal as well as legal aliens. As a result, the court rejected the claim that Fourteenth Amendment "jurisdiction" depended on whether someone had entered the U.S. legally or not. 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. 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.Ho (2006), p. 374. "This sweeping language n ''Wong Kim Ark''reaches all aliens regardless of immigration status. To be sure, the question of illegal aliens was not explicitly presented in ''Wong Kim Ark''. But any doubt was put to rest in ''Plyler v. Doe''...." The
United States Department of State The United States Department of State (DOS), or State Department, is an executive department of the U.S. federal government responsible for the country's foreign policy and relations. Equivalent to the ministry of foreign affairs of other na ...
(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 The ''Foreign Affairs Manual'' (FAM) is published by the United States Department of State The United States Department of State (DOS), or State Department, is an executive department of the U.S. federal government responsible for the countr ...
takes the position that this issue was settled by the ''Wong Kim Ark'' ruling. Some legal scholars still argue that the ''Wong Kim Ark'' ruling should be overturned through legislative means.
Richard Posner Richard Allen Posner (; born January 11, 1939) is an American jurist and legal scholar who served as a federal appellate judge on the U.S. Court of Appeals for the Seventh Circuit from 1981 to 2017. A senior lecturer at the University of Chic ...
, a judge of the
Seventh Circuit Court of Appeals The United States Court of Appeals for the Seventh Circuit (in case citations, 7th Cir.) is the U.S. federal court with appellate jurisdiction over the courts in the following districts: * Central District of Illinois * Northern District of ...
, 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.''Oforji v. Ashcroft'', 354 F.3d 609 (7th Cir. 2003). " e rule that Congress should rethink ... is awarding citizenship to everyone born in the United States (... United States v. Wong Kim Ark ...), including the children of illegal immigrants whose sole motive in immigrating was to confer U.S. citizenship on their as yet unborn children.... We should not be encouraging foreigners to come to the United States solely to enable them to confer U.S. citizenship on their future children.... A constitutional amendment may be required to change the rule ... but I doubt it.... Congress would not be flouting the Constitution if it amended the Immigration and Nationality Act to put an end to the nonsense.... Our udges'hands, however, are tied. We cannot amend the statutory provisions on citizenship and asylum." Charles Wood, former counsel to the
Senate Judiciary Committee The United States Senate Committee on the Judiciary, informally the Senate Judiciary Committee, is a standing committee of 22 U.S. senators whose role is to oversee the Department of Justice (DOJ), consider executive and judicial nominations ...
'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. 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."Salyer (2005), p. 79.


Legislative attempts to overturn ''Wong Kim Ark''

In response to public reaction against immigration and fears that U.S.-born children of illegal immigrants could serve as links to permit legal residency and eventual citizenship for family members who would otherwise be ineligible to remain in the country, bills have been introduced from time to time in Congress which have challenged the conventional interpretation of the Citizenship Clause 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. As one example among many, the "Birthright Citizenship Act of 2009"—introduced in the
House of Representatives House of Representatives is the name of legislative bodies in many countries and sub-national entitles. In many countries, the House of Representatives is the lower house of a bicameral legislature, with the corresponding upper house often c ...
of the
111th Congress The 111th United States Congress was a meeting of the legislative branch of the United States federal government from January 3, 2009, until January 3, 2011. It began during the last weeks of the George W. Bush administration, with th ...
as H.R. 1868, by Representative
Nathan Deal John Nathan Deal (born August 25, 1942) is an American lawyer and politician who served as the 82nd governor of Georgia from 2011 to 2019. He was elected to the United States House of Representatives as a member of the Democratic Party in 1992 a ...
of
Georgia Georgia most commonly refers to: * Georgia (country), a country in the Caucasus region of Eurasia * Georgia (U.S. state), a state in the Southeast United States Georgia may also refer to: Places Historical states and entities * Related to the ...
—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.Birthright Citizenship Act of 2009
H.R. 1868, 111th Cong. April 2, 2009.
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 Iowa () is a U.S. state, state in the Midwestern United States, Midwestern region of the United States, bordered by the Mississippi River to the east and the Missouri River and Big Sioux River to the west. It is bordered by six states: Wiscon ...
,Birthright Citizenship Act of 2011
, H.R. 140, 112th Cong. January 5, 2011.
and in the
Senate A senate is a deliberative assembly, often the upper house or chamber of a bicameral legislature. The name comes from the ancient Roman Senate (Latin: ''Senatus''), so-called as an assembly of the senior (Latin: ''senex'' meaning "the el ...
as S. 723 on April 5, 2011 by Senator
David Vitter David Bruce Vitter (born May 3, 1961) is an American lobbyist, lawyer, and politician who served as United States Senator for Louisiana from 2005 to 2017. A Republican, Vitter served in the Louisiana House of Representatives from 1992 to 1999. ...
of
Louisiana Louisiana , group=pronunciation (French: ''La Louisiane'') is a state in the Deep South and South Central regions of the United States. It is the 20th-smallest by area and the 25th most populous of the 50 U.S. states. Louisiana is bord ...
.Birthright Citizenship Act of 2011
, S. 723, 112th Cong. April 5, 2011.
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, 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 In the United States Congress, a joint resolution is a legislative measure that requires passage by the Senate and the House of Representatives and is presented to the President for their approval or disapproval. Generally, there is no legal diff ...
(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.Proposing an amendment to the Constitution of the United States relating to United States citizenship
, S.J.Res. 6, 111th Cong. January 16, 2009.
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.Proposing an amendment to the Constitution of the United States relating to United States citizenship
S.J.Res. 2, 112th Cong. January 25, 2011.
In 2010 and 2011, state legislators in
Arizona Arizona ( ; nv, Hoozdo Hahoodzo ; ood, Alĭ ṣonak ) is a state in the Southwestern United States. It is the 6th largest and the 14th most populous of the 50 states. Its capital and largest city is Phoenix. Arizona is part of the Fou ...
introduced bills proposing to deny regular
birth certificate A birth certificate is a vital record that documents the birth of a person. The term "birth certificate" can refer to either the original document certifying the circumstances of the birth or to a certified copy of or representation of the ensui ...
s 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''. On October 30, 2018, President
Donald Trump Donald John Trump (born June 14, 1946) is an American politician, media personality, and businessman who served as the 45th president of the United States from 2017 to 2021. Trump graduated from the Wharton School of the University of P ...
announced his intention to issue an
executive order In the United States, an executive order is a directive by the president of the United States that manages operations of the federal government. The legal or constitutional basis for executive orders has multiple sources. Article Two of t ...
abolishing birthright citizenship for U.S.-born children of non-citizens. On this same date, Senator
Lindsey Graham Lindsey Olin Graham (born July 9, 1955) is an American lawyer and politician serving as the senior United States senator from South Carolina, a seat he has held since 2003. A member of the Republican Party, Graham chaired the Senate Committee on ...
of
South Carolina )''Animis opibusque parati'' ( for, , Latin, Prepared in mind and resources, links=no) , anthem = " Carolina";" South Carolina On My Mind" , Former = Province of South Carolina , seat = Columbia , LargestCity = Charleston , LargestMetro = ...
said he would introduce legislation in Congress to accomplish the same thing. Jon Feere, of the
Center for Immigration Studies The Center for Immigration Studies (CIS) is an anti-immigration think tank and a SPLC designated hate group. It favors far lower immigration numbers, and produces analyses to further those views. The CIS was founded by historian Otis L. Graha ...
(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". Commenting on Trump's idea of an executive order,
Speaker of the House The speaker of a deliberative assembly, especially a legislative body, is its presiding officer, or the chair. The title was first used in 1377 in England. Usage The title was first recorded in 1377 to describe the role of Thomas de Hunger ...
Paul Ryan Paul Davis Ryan (born January 29, 1970) is an American former politician who served as the 54th speaker of the United States House of Representatives from 2015 to 2019. A member of the Republican Party, he was the vice presidential nominee i ...
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."
Mark Krikorian Mark Krikorian has been the executive director of the Center for Immigration Studies, an anti-immigration think-tank in Washington, D. C., since 1995. Krikorian is a regular contributor to the conservative publication ''National R ...
, 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, nd thecase will eventually reach
he Supreme Court He or HE may refer to: Language * He (pronoun), an English pronoun * He (kana), the romanization of the Japanese kana へ * He (letter), the fifth letter of many Semitic alphabets * He (Cyrillic), a letter of the Cyrillic script called ''He'' in ...
which then will finally have to rule on the meaning of 'subject to the jurisdiction'." Neither Trump's promised executive order nor Graham's planned bill materialized before Trump left office in January 2021.


See also

*
Birthright citizenship in the United States Birthright citizenship in the United States is United States citizenship acquired by a person automatically, by operation of law. This takes place in two situations: by virtue of the person's birth within United States territory or because o ...
*
Chinese American history The history of Chinese Americans or the history of ethnic Chinese in the United States includes three major waves of Chinese immigration to the United States, beginning in the 19th century. Chinese immigrants in the 19th century worked in the C ...
*
Indian Citizenship Act The Indian Citizenship Act of 1924, (, enacted June 2, 1924) was an Act of the United States Congress that granted US citizenship to the indigenous peoples of the United States. While the Fourteenth Amendment to the United States Constitutio ...
*
List of United States immigration legislation Many acts of congress and executive actions relating to immigration to the United States and citizenship of the United States have been enacted in the United States. Most immigration and nationality laws are codified in Title 8 of the United ...
*
List of United States Supreme Court cases, volume 169 This is a list of cases reported in volume 169 of ''United States Reports'', decided by the Supreme Court of the United States in 1898. Justices of the Supreme Court at the time of volume 169 U.S. The Supreme Court is established by ...
*
Nativism (politics) Nativism is the political policy of promoting or protecting the interests of native or indigenous inhabitants over those of immigrants, including the support of immigration-restriction measures. In scholarly studies, ''nativism'' is a standar ...
*
United States nationality law United States nationality law details the conditions in which a person holds United States nationality. In the United States, nationality is typically obtained through provisions in the U.S. Constitution, various laws, and international agre ...


Citations


General and cited references

* * * * * * * * * * * *


External links

*


Cases

At the
United States Supreme Court The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that involve a point o ...
: * ''
The Schooner Exchange v. M'Faddon ''The Schooner Exchange v. M'Faddon'', 11 U.S. (7 Cranch) 116 (1812), is a United States Supreme Court case on the jurisdiction of federal courts over a claim against a friendly foreign military vessel visiting an American port. The court interpret ...
'', * ''
Dred Scott v. Sandford ''Dred Scott v. Sandford'', 60 U.S. (19 How.) 393 (1857), was a landmark decision of the United States Supreme Court that held the U.S. Constitution did not extend American citizenship to people of black African descent, enslaved or free; th ...
'', * ''
Slaughterhouse Cases The ''Slaughter-House Cases'', 83 U.S. (16 Wall.) 36 (1873), was a landmark U.S. Supreme Court decision consolidating several cases that held that the Privileges or Immunities Clause of the Fourteenth Amendment to the U.S. Constitution only prote ...
'', * '' Elk v. Wilkins'', * ''United States v. Wong Kim Ark'', * ''Hennessy v. Richardson Drug Co.'', * ''Schick v. United States'', * ''Kwock Jan Fat v. White'', * ''Weedin v. Chin Bow'', * ''Morrison v. California'', * '' Perkins v. Elg'', * ''Regan v. King'', (certiorari denied) * '' Reid v. Covert'', * '' Nishikawa v. Dulles'', * '' Kennedy v. Mendoza-Martinez'', * '' Rogers v. Bellei'', * '' Plyler v. Doe'', At the
United States courts of appeals The United States courts of appeals are the intermediate appellate courts of the United States federal judiciary. The courts of appeals are divided into 11 numbered circuits that cover geographic areas of the United States and hear appeals f ...
: * ''In re Look Tin Sing''
21 F. 905
(Cir.Cal. 1884) * ''Ex parte Chin King and Ex parte Chan San Hee''
35 F. 354
(Cir.Ore. 1888) * ''Gee Fook Sing v. U.S.''
49 F. 146
(9th Cir. 1892) * ''Regan v. King''

(9th Cir. 1943) * ''Rabang v. INS''
35 F.3d 1449
(9th Cir. 1994) * ''Valmonte v. INS''
136 F.3d 914
(2nd Cir. 1998) * ''Oforji v. Ashcroft''

(7th Cir. 2003) * ''Nolos v. Holder''
611 F.3d 279
(5th Cir. 2010) At
United States district court The United States district courts are the trial courts of the U.S. federal judiciary. There is one district court for each federal judicial district, which each cover one U.S. state or, in some cases, a portion of a state. Each district co ...
s: * ''In re Wong Kim Ark''
71 F. 382
(N.D.Cal. 1896) * ''Regan v. King''
49 F. Supp. 222
(N.D.Cal. 1942) In state courts: * ''Lynch v. Clarke''
3 N.Y.Leg.Obs. 236
( N.Y. 1844) {{Portal bar, Law, San Francisco Bay Area, United States 1898 in United States case law Asian-American issues Chinese-American history History of immigration to the United States Race and law in the United States United States Citizenship Clause case law United States Fourteenth Amendment case law United States Supreme Court cases United States Supreme Court cases of the Fuller Court