Birth of a birthright: meet Wong Kim Ark, the Chinese-American whose Supreme Court case changed the country
- The 1895 case of Wong Kim Ark in San Francisco ended up in federal court
- Anti-immigrant forces gearing up for a fight to win judicial sanction for anti-Chinese laws saw Wong as a perfect test case
This story is published in a content partnership with POLITICO. It was originally reported by Jonathan M Katz on politico.com on October 31, 2018.
John H Wise was the scion of an old Virginia family, from Accomack county on the Eastern Shore. His relatives were fierce defenders of slavery – especially his Uncle Henry, who as governor had overseen the hanging of the insurgent abolitionist John Brown, then served as a Confederate brigadier general in the Civil War.
But John Wise left home not long after graduating from the University of Virginia to work as a customs inspector in San Francisco, and there were few African-Americans in California to discriminate against at the time. So, he became famous for discriminating against another group of people: Chinese immigrants.
In 1893, when President Grover Cleveland appointed him collector of customs, a job that put him in charge of foreign entries to the biggest port on the west coast, Wise started making up harsher entrance requirements for Chinese entrants than the law required.
He made merchants from China produce stacks of sworn statements, business documents and photographs at a time when none of that was easy or cheap to obtain. Once, as the historian Erika Lee has written, he deported a long-time US resident who was trying to re-enter the country to see his fiancée. Then he wrote a poem to the man’s attorney in Los Angeles, gloating: “I’ve sent him back to China / Where he can eat his mice.”
By then, many white Americans were echoing Wise’s attitudes. The United States was still a minor player in world affairs, but through conquest and coercion it had spread across North America and was on the cusp of becoming a Pacific power.
Over the next few years, US troops would defeat Spain in war, conquer Cuba, Puerto Rico and Hawaii, and turn the Asian archipelago of the Philippines into a US colony. China lay just beyond. And as has happened throughout American history, as the United States expanded its reach, brandished its power and gained the wealth of other nations, people from those countries started wanting to move to the place their nations’ wealth was going.
Thousands of Chinese people had fled European invasions, civil war and economic strife at home to seek work in the US. And though they made up only a small fraction of immigrants, they were the largest nonwhite group of newcomers, which made them targets of fact-free panics over supposed influxes of disease, crime and a general degradation of culture.
Some called the immigrants an “unarmed invasion”. And those weren’t just words. Armed vigilantes attacked Chinese immigrants. In 1871, a Los Angeles crowd killed 17 by hanging, in what has been called the largest mass lynching in American history.
In 1882, Congress passed the Chinese Exclusion Act. The law prohibited Chinese people from being naturalised as citizens, creating a permanent class of aliens on racial lines. The first federal immigration restriction based on race, it laid the groundwork for the first large-scale deportation of immigrants in US history. But much to the dismay of Wise and other white supremacists, none of that stopped Chinese people from trying to build new lives in America.
In 1895, a man named Wong Kim Ark showed up on a boat at the Port of San Francisco. Wong was 22 years old, with bright, broad features and his hair pulled back in a traditional queue. The son of parents from Taishan, on the southern Pearl River Delta, he must have looked at first to the customs officials like any other young man from the province they called Canton. But Wong was born in San Francisco. His parents had come to America decades earlier and spent years helping manage a grocery store in Chinatown. They had entered the US before there was a federal immigration service or such a concept as “illegal immigration”. Yet, unable to attain citizenship under the racial laws, fearing vigilante violence, they had fled with their son back to China in 1890.
But for Wong Kim Ark, America was home. He’d returned to California after only a few months, was admitted without any problem, and established himself as a restaurant cook. Thinking he was free to travel, he’d sailed to China in November 1894 to see his family. But when he returned this time, he ran into John H Wise. The customs chief ruled that Wong was not a US citizen and thus immediately deportable under the Exclusion Act. Wise ordered Wong arrested by a US marshal and confined to a steamship in San Francisco Bay.
The major Chinese immigrant aid society in the area gave Wong the services of its lawyer, Thomas D Riordan. He argued that Wong was entitled to enter the United States under the 14th Amendment to the US Constitution, which says:
“All persons born or naturalised in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”
Wong’s case ended up in federal court. Anti-immigrant forces had been gearing up for a fight to win judicial sanction for their anti-Chinese laws, and Wong seemed like a perfect test case. They argued that an “accident of birth” couldn’t confer citizenship, on the grounds that Wong’s “education and political affiliations remained entirely alien to the United States”. To put it in Latin, Wong wanted the United States to recognise his jus soli citizenship – the “right of soil”. But Wise and the US attorneys wanted the rule to be jus sanguinis citizenship – the “right of blood”. If they could get the Supreme Court to agree, countless American-born immigrants could be stripped of their rights, rounded up and deported.
But the Supreme Court sided with Wong. Even the aggressively white supremacist justices – who just two years before had ruled in Plessy v Ferguson that segregation was constitutional because blacks were “inferior socially” and thus could be discriminated against at will – could not argue against the plain language of the 14th Amendment.
It was clear, Justice Horace Gray wrote for the 6-2 majority, that even before that amendment “all white persons, at least, born within the sovereignty of the United States, whether children of citizens or of foreigners, excepting only children of ambassadors or public ministers of a foreign government, were native-born citizens of the United States”. And the amendment had settled the question for black people.
The only question was whether it applied to everyone. And the court said it did. The congressional framers of the amendment, Gray noted, had even explicitly said during debate, back in 1868, that birthright citizenship was intended to apply “to the children begotten of Chinese parents in California”.
This principle, the justices found, was firmly rooted in English Common Law, American tradition, and practicality. After all, they wrote, if they interpreted it any differently, they would be forced to “deny citizenship to thousands of persons of English, Scotch, Irish, German or other European parentage who have always been considered and treated as citizens of the United States”.
It does not seem the justices thought much about the wider context of the 14th Amendment. They noted that its key line was written after abolition to “establish the citizenship of free negroes” that had been denied a decade earlier on purely racist grounds in the discredited Dred Scott decision. But there’s nothing in the majority opinion that suggests they were thinking about the fact that such a solution was available to the US Congress because, before the civil war, jus soli birthright citizenship had become nearly universal throughout North, Central and South America. Those policies were born out of Enlightenment ideals, as well as the realisation that, as the legal scholar Katherine Culliton-González has written, “the history of modern nation-building and independence in the Americas is a history of immigration”.
Donald Trump wants to scrap birthright citizenship. The Wong Kim Ark Chinese legal case from 1898 complicates it
The court decided United States v Wong Kim Ark on March 28, 1898. For 120 years since, anyone born in the United States, regardless of their race or class, or the immigration status of their parents – except for the children of foreign diplomats – instantly becomes a US citizen.
But that story has never been simple. Wong would never get to freely enjoy the benefits of citizenship. He was still required to show extra documentation – including the signatures of white people affirming his birthplace – every time he came and left the country. The United States would invade China several times over the next decades. Wong is believed to have finally gone back to China for good, dying there after the second world war.
The same Supreme Court that decided Wong would later deny full constitutional rights to the peoples of the islands seized in the war with Spain. It would take a 1917 act of Congress for Puerto Ricans to receive US citizenship.
As the US invaded or occupied countries in Asia and Latin America in the long century that followed, including China, familiar questions would arise about the rights, desirability and status of those immigrants following resources and relatives to America – and their children.
Such questions would continue to rile and enrage the ideological heirs of people like John H Wise, who believe as he did that America should not have nearly so many immigrants, especially nonwhite ones. Speaking for them this week, Trump floated the possibility of ending birthright citizenship with an executive order – pretending, with no apparent basis, that he can overrule 120 years of Supreme Court precedent by presidential fiat. But Trump, too, owes his Americaness to an immigrant. Like Wong, his grandfather worked in a restaurant. Unlike Wong, the German-born Trump had to apply for naturalisation. He did so in 1892 – at the same moment, according to the author Gwenda Blair, that he registered to vote.
Researcher Hannah Hallikainen contributed to this story.
Jonathan M. Katz (@KatzOnEarth) is a national fellow at New America. His next book, Gangsters of Capitalism, is about the legacy of the Marines who created America’s empire.