United States v. Wong Kim Ark, 169 U.S. 649 (1898), was a United States Supreme Court decision that set an important legal precedent about what determines American citizenship.

Facts

Wong Kim Ark^[1] (黃金德; Toisanese: wong11 gim33 'ak3; Cantonese: wong4 gam1 dak1; Mandarin: huang2 jin1 de2) was born ca. 1871^[2] in San Francisco, California. He worked as a cook. His father, Wong Si Ping, and his mother, Wee Lee,^[3] were immigrants from Taishan, China, and were not United States citizens.

In 1894, Wong sailed to China on a temporary visit. When he returned to the U.S. in August 1895, he was denied permission to enter the country because American customs officials in San Francisco held that, despite having been born in the United States, he was not a citizen.

Issue

The Congress of the United States had enacted a law, known as the Chinese Exclusion Act, prohibiting persons of the Chinese race from coming into the United States or becoming naturalized U.S. citizens. Chinese immigrants already in the U.S. were allowed to stay, but they were ineligible for naturalization, and if they left the U.S., they generally could not return.

However, the Fourteenth Amendment to the United States Constitution, ratified after the American Civil War, said the following concerning citizenship: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.

The Supreme Court, in the Wong Kim Ark case, was called upon to decide whether an American-born person of Chinese ancestry could constitutionally be denied U.S. citizenship and excluded from the country.

Majority opinion

The court ruled, in a 6-2 decision, that Wong Kim Ark was in fact a U.S. citizen, and that the United States government could not deny citizenship to anyone born in the United States — even children of foreigners.

The 14th Amendment's citizenship clause, according to the court's majority, had to be interpreted in light of English common law tradition that had excluded from citizenship at birth only two classes of people: (1) children born to foreign diplomats, and (2) children born to enemy forces engaged in hostile occupation of the country's territory. The majority held that the "subject to the jurisdiction" phrase in the 14th Amendment specifically encompassed these conditions (plus a third condition, namely, that Indian tribes were not considered subject to U.S. jurisdiction^[4]) — and that since none of these conditions applied to Wong's situation, Wong was a U.S. citizen, regardless of the fact that his parents were not U.S. citizens (and were, in fact, ineligible ever to become U.S. citizens because of the Chinese Exclusion Act).

Since Wong (according to the majority opinion) was a U.S. citizen from birth, the restrictions of the Chinese Exclusion Act did not apply to him. An act of Congress, the majority held, does not trump the Constitution; such a law "cannot control [the Constitution's] meaning, or impair its effect, but must be construed and executed in subordination to its provisions."

Minority opinion

The court's minority disagreed strongly with the majority view. Chief Justice Melville Fuller, in a dissenting opinion joined by Justice John Harlan, argued that the history of U.S. citizenship law had broken with English common law tradition after independence, and that the principle of citizenship by descent (that is, the concept of a child inheriting his or her father's citizenship regardless of birthplace) had been more pervasive in U.S. legal history.

In the view of the minority, excessive reliance on 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 freed slaves — had, through the years, acquired U.S. citizenship through birth on U.S. soil. But they still saw a difference between those people and U.S.-born individuals of Chinese ancestry, because of (1) strong cultural traditions discouraging Chinese immigrants from assimilating into mainstream American society, (2) Chinese laws of the time which made acquiring a new citizenship or renouncing allegiance to the Chinese emperor a capital crime, and (3) the provisions of the Chinese Exclusion Act making Chinese immigrants already in the United States ineligible for citizenship.

Effect

As a result of Wong Kim Ark's U.S. citizenship being confirmed by the Supreme Court, three of his four sons were subsequently recognized as U.S. citizens and allowed to come to the United States: Wong Yook Sue (黃郁賜, Toisanese: wong11 nguk3 ti33, Cantonese: wong4 yuk1 tsi3); Wong Yook Thue (黃沃修, Toisanese: wong11 nguk3 siu33, Cantonese: wong4 yuk1 sau1); and Wong Yook Jim (黃沃沾, Toisanese: wong11 nguk3 dim33, Cantonese: wong4 yuk1 zim1). A fourth son — his eldest, Wong Yoke Fun (黃毓煥, Toisanese: wong11 nguk3 vun22, Cantonese: wong4 yuk1 wun6) — was rejected by U.S. officials, who claimed to see discrepancies in the testimony at his immigration hearing and refused to accept Wong Kim Ark's claim that the boy was his son.^[5]

U.S. citizenship law since (and, arguably, before) Wong Kim Ark has acknowledged both jus soli (citizenship through place of birth) and jus sanguinis (citizenship inherited from parents). Wong Kim Ark's case was subsequently cited in two major Supreme Court decisions on citizenship: Perkins v. Elg, 307 U.S. 325 (1939) (involving a U.S.-born woman who was alleged to have lost her U.S. citizenship when her Swedish parents took her back to Sweden with them when she was a baby); and Afroyim v. Rusk, 387 U.S. 253 (1967) (involving a naturalized U.S. citizen who subsequently moved to Israel and was alleged to have lost his U.S. citizenship after voting in an Israeli election).

Wong Kim Ark was also cited in Plyler v. Doe, 457 U.S. 202 (1982), a Supreme Court decision which struck down a Texas state law that had sought to deny public education to undocumented alien children (i.e., children born abroad who had come to the United States illegally along with their parents — not children born in the U.S. to illegal alien parents). The court's majority opinion in Plyler (footnote 10, on page 211) noted that, according to the Wong court, the 14th Amendment's phrases "subject to the jurisdiction thereof" and "within its jurisdiction" are essentially equivalent, and that both refer primarily to physical presence.

In response to concerns over illegal immigration in the United States (and the associated fear that children of illegal immigrants could serve as "anchor babies"), bills have been introduced from time to time in Congress which have challenged the conventional interpretation of the citizenship clause of the 14th Amendment and have sought to actively, explicitly deny citizenship at birth to U.S.-born children of foreign visitors or illegal aliens. No such bill has ever come close to being enacted; even if one did, it would presumably achieve its intended result only if the Supreme Court, in a new case, were to conclude that Wong Kim Ark had been wrongly decided and that the precedent set in 1898 should be repudiated. Some attempts have also been made to supersede Wong Kim Ark by amending the Constitution itself, but no such amendment has ever been approved by Congress in order to be voted upon by state legislatures.

It has been suggested by some critics of U.S. citizenship policy relating to U.S.-born children of illegal immigrants that Wong Kim Ark does not, in fact, hold such children to be U.S. citizens, because Wong's parents were legal non-citizen residents of the United States at the time of his birth. Those advocating this view assert either that the Wong Kim Ark decision simply does not apply to U.S.-born children of illegal immigrants at all, or else that a subsequent case before the courts would easily be distinguished from Wong Kim Ark by virtue of the difference in the parents' legal status. Proponents of the conventional view argue that the Wong Kim Ark majority defined the "jurisdiction" exception to the jus soli rule very narrowly; that references in the majority opinion to the legal resident status of Wong's parents were obiter dicta and not an essential part of the holdings of the case; and that the 1982 Plyler case affirmed the conventional, mainstream interpretation of Wong Kim Ark with regard to the question of what being "subject to the jurisdiction" of the United States means. In the end, no one can really know how the Supreme Court might rule in a new case challenging the citizenship of U.S.-born children of illegal immigrants until and unless such a case were actually heard, and ruled upon, by the court.

It has also been suggested by some that Wong Kim Ark supports the view that non-U.S.-born children of American parentage are not natural-born citizens of the United States, and that such an individual may therefore not legally become President or Vice-President, even though Congress has enacted laws providing that foreign-born children of U.S. citizens are (in many cases) U.S. citizens by birth via jus sanguinis. Proponents of this view sometimes point to the passage from the Supreme Court's minority opinion about U.S.-born children of foreigners being eligible for the Presidency, but not foreign-born children of U.S. citizens; note, though, that this statement, being part of the minority opinion, is not in any way legally binding as a precedent.

Footnotes

1. ↑  English transcriptions of the names of Chinese immigrants to the United States were often inconsistent. Although most documents about Wong Kim Ark write his name as "Wong Kim Ark" — and this is the spelling Wong himself used — he is also referred to in various documents as "Wong Kim Ock" or "Wong Gin Ock". Some discrepancies also exist in the way his sons' names were written in English.
2. ↑  There are discrepancies regarding Wong Kim Ark's birthdate. Although the court documents related to his claim to U.S. citizenship say he was born in 1873, an affidavit signed by Wong in November 1894 (before his fateful trip to China) said he was 23. In testimony given at a 1910 immigration hearing for his eldest son (Wong Yoke Fun), Wong Kim Ark gave 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). In a 1931 immigration document, however, Wong said his birthdate was a year earlier ("T.C.9-9-7"; October 1, 1870). In testimony at immigration hearings for his second son (Wong Yook Sue) and his third son (Wong Yook Thue), he said he was 56 (in March 1925) and 57 (in July 1926), respectively. These last statements would appear to place Wong's birth in 1868; however, a traditional Chinese custom^{citation needed]} of reckoning one's age starting with one rather than zero (e.g., a newborn baby is said in China to be one year old), and incrementing the age at the start of each new lunar year (rather than on one's birthday), might point to an 1870 birth and make these statements consistent with the 1931 document. Perhaps Wong Kim Ark was simply honestly confused throughout his life regarding the exact year of his birth.
3. ↑  Wong Kim Ark's parents are named in the 1895 habeas corpus petition filed in his behalf after his claim to U.S. citizenship was initially rejected. According to testimony given at a 1910 immigration hearing for his eldest son (Wong Yoke Fun), Wong Kim Ark's father died in 1890, and his mother died in 1901 or 1902 — both in China.
4. ↑  American Indians were granted U.S. citizenship by Congress, in 1924, via the Indian Citizenship Act of 1924. Prior to that time, the Supreme Court had held that American Indians, born on tribal lands, were not born subject to U.S. jurisdiction and did not have a right to citizenship via the 14th Amendment; Elk v. Wilkins, 112 U.S. 94 (1884).
5. ↑  The immigration files for three of Wong Kim Ark's four sons are available for public viewing at the Pacific Region office of the U.S. National Archives and Records Administration in San Bruno, California. A copy of Wong Kim Ark's immigration file can also be seen at the same office (the original file is locked away for safekeeping). As of late 2005, the immigration file for Wong Yook Sue was not available for viewing at the San Bruno National Archives office, but could potentially be seen by filing a Freedom of Information Act request with the U.S. Citizenship and Immigration Services.

External links

• Full text of the Supreme Court opinion at Findlaw.com
• "The Progeny of Citizen Wong," SF Weekly, November 4, 1998 — an article about a great-granddaughter of Wong Kim Ark (a granddaughter of his son Wong Yook Jim)
• "Alien Birthright Citizenship: A Fable That Lives Through Ignorance" — an essay dismissing U.S. v. Wong Kim Ark and asserting that the 14th Amendment does not in fact support citizenship at birth to U.S.-born children of aliens