Political writers often refer to the Supreme Court’s 1898 decision in United States v. Wong Kim Ark as the ultimate authority on birthright citizenship, natural born citizenship, and the citizenship status of controversial “anchor babies.” Because it forms the underlying precedent for current interpretations of citizenship law, it’s instructive to examine the case in detail.
In 1898, Congress had not formalized permanent residence in the United States. Immigration was loosely controlled. Essentially, anyone who entered the U.S. through a port of entry was considered a potential immigrant and was regarded as a permanent legal resident. Nothing resembling a green card existed until the Alien Registration Act of 1940.
Similarly, there was no visa system in place in 1898. That concept didn’t begin to emerge until the Immigration Act of 1917. Only then, during WWI, did we begin “[t]he practice of requiring all aliens to obtain visas from U.S. officials abroad before departure for the United States...” Only when Congress acted did we develop the modern rigorous means to distinguish ‘visitors’ from ‘residents.’
Given the timeline of immigration law developments, when Congress debated and ratified the 14th Amendment, particularly its citizenship clause, it did not define what constituted residence in a state or what was meant by the words “under the jurisdiction thereof.” Similarly, the Constitution does not define the terms “citizen,” “persons,” or “natural born citizen.” Absent explicit definitions from the Framers or Congress, the Wong Kim Ark Court said it had the responsibility to define the terms:
The constitution nowhere defines the meaning of these words, … In this, as in other respects, it must be interpreted in the light of the common law, the principles and history of which were familiarly known to the framers of the constitution. (Emphasis mine.)
The Court could looked to documents associated with ratifying the 14th Amendment, which would have provided information about Congress’s intentions. These documents would have included the Civil Rights Act of 1866, enacted by the previous Congress and with the same authors as the 14th Amendment. It could also have looked at the Congressional Globe, where the congressmen who wrote the 14th Amendment explained their goals. This would have been a purely originalist approach to analyzing the Amendment.
Instead, though, the Court ignored documents spelling out the legislators’ intentions and, instead, referred to English Common Law. The idea that the people behind the 14th Amendment might have used some basis other than English common law was alien to the Court. From Wong, a direct expression of English common law jus soli citizenship:
By the common law of England, every person born within the dominions of the crown, no matter whether of English or of foreign parents, and, in the latter case, whether the parents were settled, or merely temporarily sojourning, in the country, was an English subject…
The Court continued in this vein, citing out-of-context language in 1874’s Minor v. Happersett, to further justify using common law to decide Wong Kim Ark:
In Minor v. Happersett, Chief Justice Waite, when construing, in behalf of the court, the very provision of the fourteenth amendment now in question, said: ‘The constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that.’ And he proceeded to resort to the common law as an aid in the construction of this provision.
In fact, the Minor court, actually quoted almost verbatim from the Franco-Swiss philosopher, Emmerich de Vattel’s “Law of Nations”—which is certainly not a part of English Common Law. This quote from Minor emphasizes the language that is essentially de Vattel’s words:
The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At common-law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners. (Emphasis mine.)
It should be obvious why the Wong Kim Ark decision did not accurately quote from the Minor case. Waite had quoted the only certain descent of US citizenship as jus sanguinis—that is, a child’s citizenship derives from his parents’.
The Court noted the change in wording between the Civil Rights Act of 1866 and the 14th Amendment. In the first, the phrase used was “and not subject to any foreign power,” while in the second it was “under the jurisdiction thereof,” making it seem as if this was a substantive change. In doing so, it ignored the words of Sen. Jacob Howard, the primary floor manager and chief spokesperson for the 14th Amendment during the Senate’s debate. He assured his fellow Senators,
This 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.
He added,
Indians born within the United States, and who maintain their tribal relations, are not, in the sense of this amendment, born subject to the jurisdiction of the United States. They are regarded, and have always been in our legislation and jurisprudence, as being quasi foreign nations.
One must immediately conclude that if Indians who remained [citizens] of their respective [foreign nation] were regarded as not under the jurisdiction of the United States, then it must follow any [citizens of foreign nations] present in the United States are also not under the jurisdiction of the United States.
When they were in the United States, Wong’s parents were always and only subjects of the Emperor of China. In the parlance of the authors and ratifiers of the 14th Amendment, Wong’s parents were never solely under the jurisdiction of the United States. By ignoring the ratifiers’ history, the Wong Kim Ark disagreed, concluding that Wong’s parents were presumed under the jurisdiction of the United States by virtue of their presence therein, i.e., a jus soli, or birthplace, interpretation conflating “within the United States” with “under the jurisdiction thereof.”
The Wong interpretation of jurisdiction would also mean that Indians were who not taxes were born citizens under the 14th Amendment—but, again, that was contrary to the authors’ explicit declarations, the Census Clause, and the precedent set by 1884’s Elk v. Wilkins, which held that John Elk, despite being born to parents domiciled in the U.S. was not a U.S. citizen because he was born on Indian land and was a member of a recognized Indian tribe. He and his parents owed to the tribe, which had no allegiance to the United States.
To show more strongly the difference between temporary residence versus allegiance, the Wong Kim Ark court concluded that the Wong parents were California residents but Chinese subjects:
His father and mother were persons of Chinese descent, and subjects of the emperor of China. …. They continued to reside and remain in the United States until 1890, when they departed for China… (Emphasis mine.)
Nevertheless, the court discounted the fact that the Wongs returned to China, never to return to the United States. These are the actions of temporary visitors, not residents.
The court also discounted Wong’s continued Chinese allegiance. The U.S. attorney, quoting a customs collector, described Wong this way (emphasis mine):
Because the said Wong Kim Ark has been at all times, by reason of his race, language, color, and dress, a Chinese person. (Emphasis mine.)
The court excluded this from the facts of the case despite the likelihood that this assessment of Wong was entirely correct. Effectively, Wong grew up as a Chinese national on American soil, no doubt a circumstance that never occurred to the birthright citizenship authors who wrote the clause with newly freed slaves in mind.