[Chapter 02] In a Strange Land: The Rights of Immigrants

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Wong Kim ArkWong Kim ArkWong Kim Ark was twenty-two years old in August 1895, when he arrived in San Francisco Bay aboard the steamship Coptic. The young cook was returning home after visiting China. He carried the necessary document to reenter the United States: a certificate of identity with his photograph and the signatures of three white witnesses who verified his birth in San Francisco. The customs official at the port admitted that Wong's "papers were all straight" but denied him reentry on the grounds that the young man's birth in California did not grant him U.S. citizenship.

Who is a Citizen?

Because the U.S. Constitution did not define "citizen," American jurists had adopted the British common law practice of assigning U.S. citizenship to any person born on United States territory. Race, however, impacted this practice. Courts in southern states, for example, refused to recognize the citizenship of free blacks born in the U.S., a position which the Supreme Court adopted in the infamous 1857 Dred Scott case.

The Fourteenth Amendment, added to the Constitution after the Civil War, defined citizenship for the first time by clearly stipulating that "all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States."

Targeting Chinese Immigrants and Their Children

The Chinese Exclusion Act of 1882, in addition to a 1790 law restricting naturalization rights to "free white persons," already barred Chinese immigrants from naturalizing, but nativists attempted to extend the ban on citizenship to the U.S.-born children of Chinese immigrants. They argued that a child's citizenship derives from the nationality of the parents, regardless of where the child is born. In 1888 an attorney with the Department of Justice promoted the idea of bringing a test case to the Supreme Court to challenge birthright citizenship claims made by Chinese Americans.

They found their test case with Wong Kim Ark. Wong was the son of merchant Wong Si Ping and his wife, Wee Lee, who had lived in the United States for more than seventeen years. The younger Wong had visited China twice, once in 1890 and again in 1894, but had otherwise lived only in California.

When Wong Kim Ark was denied entry into the country of his birth, the Chinese Consolidated Benevolent Association hired attorney Thomas Riordan, who had represented Chinese in other cases challenging exclusion laws. Riordan filed a petition for a writ of habeas corpus, arguing that Wong was being illegally detained.

The "rag tag and bob tail of humanity"

Before the federal district court, government attorneys contended that birth in the United States did not automatically translate into allegiance to America, especially if immigrant parents did not instill in their children loyalty to the United States. They argued that citizenship should be determined by descent, to protect the nation from "the rag tag and bob tail of humanity, who happen to be deposited on our soil by the accident of birth, and whose education and political affiliations are entirely alien." Although Judge William W. Morrow sympathized with the government's arguments (as a member of Congress, he had supported Chinese exclusion legislation), he ruled that Wong Kim Ark was a U.S. citizen and ordered his release. Morrow explained that to accept the government's arguments would mean "denationalizing" thousands of people who had been born in the United States to immigrant parents. The government appealed to the Supreme Court.

Stave v. Federal Power

U.S. Solicitor General Holmes Conrad, a Virginian who resisted the outcome of the Civil War, introduced a federalist argument to the government's case: states, not the federal government, had the right to define citizenship and its rights. He further argued that the Fourteenth Amendment was invalid because southern states had been forced to ratify it. And to top off his case, he added a cultural component: since Chinese immigrants were barred from naturalizing, that status should also apply to their American-born children.

Countering Solicitor General Conrad were Wong's attorneys, Maxwell Evarts and J. Hubley Ashton, two prominent northeastern lawyers who had represented other Chinese immigrants. Arguing that persons born in the U.S. had long been recognized as citizens, they also addressed the government's contention that the Fourteenth Amendment was invalid. They asserted that the principle of equality defined in the amendment would forestall a bloody civil war like the one recently ended.

The Court Rules

On March 28, 1898, the high court ruled in Wong's favor. In a 6-2 opinion by Associate Justice Horace Gray, the justices determined that the framers of the Fourteenth Amendment had accepted the potential that children of Chinese immigrants would be granted birthright citizenship. Gray had written the Court's decision in an earlier case, Fong Yue Ting v. United States, that upheld broad congressional power to deport aliens at will. His Wong Kim Ark opinion was consistent in affirming the federal government's authority, in this case to define citizenship.

Wong Kim Ark had won the battle for birthright citizenship, but exclusionists and nativists continued to clamor for restrictions on the immigration and naturalization rights of Asians and Latinos. During World War II, the Native Sons of the Golden West would challenge the validity of the Wong Kim Ark decision in their quest to rid the country of Japanese Americans.

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