Why Does the U.S. Have Birthright Citizenship? | United States v. Wong Kim Ark

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In episode 41 of Supreme Court Briefs, a man born in the United States is denied entry into the country after his parents are forced out of the country. But wait, doesn't the 14th Amendment guarantee him birthright citizenship? Or does it?

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San Francisco

1868, or 1871...or perhaps 1873.

Wong Kim Ark is born. His parents are Wong Si Ping and Wee Lee, both immigrants from China and not United States citizens. According to the Naturalization Law of 1802, the two could never become citizens because they weren’t “white.” Whatever the heck that means.

Due to the Chinese Exclusion Act discriminating against them, the Wongs moved back to China, when Kim Ark was 9. But a few years later, Kim Ark came right back to California because he wanted to make much more money. This was not a problem for Kim Ark because, since he was born in San Francisco, he was automatically an American citizen thanks to the Citizenship Clause of the 14th Amendment.

In 1890, Wong went to China to visit his parents, and he came back home to the United States with no problem. However, four years later when he went back to China to visit them, he was denied re-entry upon his return. He was like “dude, I live here.” They were like, “nope, not anymore. You’re not a citizen.” During the five months when Wong fought for re-entry into the country, U.S. Customs kept him confined on different ships just off the coast of San Francisco.

Fortunately for Wong, he got support from an organization called the Chinese Six Companies to help him fight for his citizenship. It went to federal district court. So let’s break out that 14th Amendment, shall we? So there’s the Citizenship Clause of it, and what they focused on the most was different interpretations of this phrase here: “subject to the jurisdiction thereof.” Does that cover when a child is born in the U.S. to parents who both are not citizens? Wong’s lawyers argued yes. The United States had been waiting to test out the Citizenship Clause for awhile, and here was their chance. Henry Foote, a former Confederate soldier, represented the United States, calling Wong a “accidental citizen,” not the term you usually hear today, which is “anchor baby.”

On January 3, 1896, the district judge sided with Wong, declaring him a citizen since he was born in the United States. The U.S. government appealed the decision directly to the Supreme Court because...well...they could, and the Court heard oral arguments on March 5, 1897. Soooo, COULD the government deny citizenship to people born in the United States in any circumstance?

The Court said “no.” In a 6-2 decision, they ruled in favor of Wong, declaring that any child born in the country to parents of a foreign country is automatically a citizen. UNLESS...the parents are foreign diplomats, or the person is born on a public ship, or the parents are nationals of a foreign enemy country that is trying to take over the United States. But yeah, you’re born here? You a citizen, buddy! The Court relied on English common law tradition just as much as they relied on the 14th Amendment for this one. Leading the dissent was Chief Justice Melville Fuller, joined by justice John Harlan. They both argued that the history of American citizenship broke with the tradition of English common law after it declared independence in 1776. In particular, they wondered about the part of the citizenship clause that said “subject to the jurisdiction thereof.”