- United States v. Wong Kim Ark
Litigants=United States v. Wong Kim Ark
ArgueDate=March 5, 8
FullName=United States v. Wong Kim Ark
Citation=18 S. Ct. 456; 42 L. Ed. 890; 1898 U.S. LEXIS 1515
Prior=Appeal from the District Court of the United States for the Northern District of California
Holding=A child born in the United States to foreign parents who are subject to U.S. jurisdiction automatically becomes a U.S. citizen.
JoinMajority=Brewer, Brown, Shiras, White, Peckham
LawsApplied=U.S. Const. amend. XIV
Wong Kim Ark [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.] (黃金德;
Toisanese: wong11 gim33 'ak3; Cantonese: wong4 gam1 dak1; Mandarin: huáng jīn dé) was born in San Francisco, California, sometime between 1868 and 1873. [There are discrepancies regarding Wong Kim Ark's birthdate. Although the court documents regarding 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 1910immigration 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 1931immigration 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 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 1870birth and make these statements consistent with the 1931document. Perhaps Wong Kim Ark was simply honestly confused throughout his life regarding the exact year of his birth.] His father, Wong Si Ping and his mother, Wee Lee [Wong Kim Ark's parents are named in the 1895 habeas corpuspetition filed in his behalf after his claim to U.S. citizenship was initially rejected. According to testimony given at a 1910immigration hearing for his eldest son (Wong Yoke Fun), Wong Kim Ark's father died in 1890, and his mother died in 1901or 1902— both in China.] were immigrants from Taishan, Chinaand were not United States citizens.
1890Wong's parents returned to live in China. Later that year Wong himself traveled to China and, having returned, was granted entry "upon the sole ground that he was a native-born citizen of the United States". Four years later, however, the circumstances had changed, as Wong, who was employed in San Francisco as a cook, sailed to China on another temporary visit in 1894. When he returned to the U.S. in August 1895, he was detained at the Port of San Franciscoby the Collector of Customsand denied permission to enter the country "...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."
In 1882, the
Congress of the United Stateshad 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 were ineligible for naturalization; and if they left the U.S., they generally could not return.
Fourteenth Amendment to the United States Constitution, ratified in 1868 after the Civil War, states 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.
"Held": In a 6-2 decision, the Court held that under the Fourteenth Amendment, a child born in the United States of parents of foreign descent who, at the time of the child's birth are subjects of a foreign power but who have a permanent domicile and residence in the United States and are carrying on business in the United States, and are not employed in any diplomatic or official capacity under a foreign power, and are not members of foreign forces in hostile occupation of United States territory, becomes a citizen of the United States at the time of birth.
The 14th Amendment's citizenship clause, according to the court's majority, had to be interpreted in light of
English common lawtradition 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 [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," ussc|112|94| 1884.] ) - 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). The opinion emphasized the fact 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".
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."
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—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 minority argued 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 since independence.
Pointing to the language of the
Civil Rights Act of 1866, 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 14th Amendment was proposed by Congress, the minority 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' . . . ." They thus reasoned that the majority opinion exactly contradicted the original intended meaning of the 14th Amendment.
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.
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 yuk3 ti33, Cantonese: wong4 yuk1 tsi3); Wong Yook Thue (黃沃修, Toisanese: wong11 yuk3 sliu33, Cantonese: wong4 yuk1 sau1); and Wong Yook Jim (黃沃沾, Toisanese: wong11 yuk3 zim33, Cantonese: wong4 yuk1 zim1). A fourth son — his eldest, Wong Yoke Fun (黃毓煥, Toisanese: wong11 yuk3 von22, 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. [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. [http://www.nara.gov 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.]
Prior to "Wong Kim Ark" the Supreme Court had held that birthplace by itself was not sufficient to grant citizenship (Elk v Wilkins, 112 U.S. 94, 1884). U.S. citizenship law since "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", ussc|307|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 Swedenwith them when she was a baby); and " Afroyim v. Rusk", ussc|387|253| 1967(involving a naturalized U.S. citizen who subsequently moved to Israeland 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," ussc|457|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" said that, according to the "Wong" court, the 14th Amendment's phrases "subject to the jurisdiction thereof" and "within its jurisdiction" were essentially equivalent and that both referred primarily to physical presence. It held that that illegal immigrants residing in a state are "within the jurisdiction" of that state, and added in a footnote that "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." [cite web|url=http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=CASE&court=US&vol=457&page=202#f10|title="Plyler v. Doe," 457 U.S. 202 (1982)|publisher=FindLaw|accessdate=2007-10-25]
In response to concerns over
illegal immigrationin the United States (and the associated fear that children of illegal immigrants could serve as links to permit citizenship for family members who would otherwise be ineligible, 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 and 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 1898should 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 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. [ [http://www.heritage.org/research/legalissues/lm18.cfm John C. Eastman, From Feudalism to Consent: Rethinking Birthright Citizenship] , Legal Memorandum No. 18 (
Heritage Foundation, Washington D.C.), March 30, 2006, at 3.] Those advocating this view assert that a subsequent case before the courts, dealing with U.S. born children of undocumented immigrants, would easily be distinguished from "Wong Kim Ark" by virtue of this 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; that the court majority's reason for mentioning the legal resident status of Wong's parents was simply to illustrate that they were in the United States as ordinary people and not as representatives of a foreign government; 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.
List of United States Supreme Court cases, volume 169
case="United States v. Wong Kim Ark", 169 U.S. 649 (1898)
* [http://www.sfweekly.com/issues/1998-11-04/news/feature2.html "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)
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