Birthright Citizenship and a Typhlotic Courtroom Lesson 4: Wong Kim Ark

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Birthright Citizenship and a Typhlotic Courtroom - Lesson 1: Esrly U.S. Citizenship

Birthright Citizenship and a Typhlotic Courtroom - Lesson 2: The 14th Amendment

Birthright Citizenship and a Typhlotic Courtroom - Lesson 3: The Reconstruction Era

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The United States v Wong Kim Ark

Wong Si Ping and his wife, Wee Lee, were Chinese subjects who emigrated from China to the United States sometime in the 1850’s. Wong Si Ping opened a shop in San Francisco, and the two took up residence in an apartment above the shop.

Wee Lee later gave birth to a son whom they named Wong Kim Ark. His exact date of birth is unconfirmed with certain documents placing his birth in 1871 while others state that he was born in 1873. Still, Wong Kim Ark is a significant figure in the history of the United States, particularly where the topic of birthright citizenship is concerned.

Given the unfriendly atmosphere toward the Chinese in the United States in the late 1800’s, Wong Si Ping and Wee Lee, along with Wong Kim Ark, set off for China in 1890. However, Wong Kim Ark returned to the U.S. shortly thereafter and acquired employment as a cook. Later, in 1894, Wong Kim Ark returned to China temporarily with the clear intent of returning to the United States, which he did the following year.

Upon his return from his second excursion to China, Wong Kim Ark was refused entry into the United States on the basis that he was not a U.S. citizen, having been born of Chinese immigrants who, while legally present in the United States, were subjects of the Emperor of China making Wong Kim Ark a subject of the Emperor under U.S. naturalization laws. So the young man was stuck on a ship, without permission to disembark. Having filed a writ of habeas corpus with the court, it was ordered that Wong Kim Ark should be allowed entrance into the U.S.

Skipping over the details of the ensuing three-year span, the case of the United States v Wong Kim Ark eventually made it to the Supreme Court in 1898. At that time the court found in favor of Wong Kim Ark, recognizing him as a U.S. citizen based strictly on the fact that his birth took place in this country.

The decision stood in stark contrast to the rulings stated in the Slaughterhouse cases (1873) and Elk v Wilkins (1884). In fact, the decision in Elk v Wilkins was rendered a mere eleven years prior, so it is puzzling that the court so casually discarded the reasoning proffered in that case. In the Slaughterhouse cases, the majority opinion recognized that the 13th, 14th, and 15th Amendments were not written with the general population in view, but specifically concentrated on the condition of former slaves. Consequently, these amendments could not be removed from that context.

In Elk v Wilkins, the court rendered a decision that included a pure definition of the phrase “subject to the jurisdiction thereof.” According to that decision, the words should be understood as:

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…completely subject to their political jurisdiction and owing them direct and immediate allegiance. And the words relate to the time of birth in the one case, as they do to the time of naturalization in the other. Persons not thus subject to the jurisdiction of the United States at the time of birth cannot become so afterwards except by being naturalized, either individually, as by proceedings under the naturalization acts, or collectively, as by the force of a treaty by which foreign territory is acquired.

As appears upon the face of the amendment, as well as from the history of the times, this was not intended to impose any new restrictions upon citizenship, or to prevent any persons from becoming citizens by the fact of birth within the United States who would thereby have become citizens according to the law existing before its adoption. It is declaratory in form, and enabling and extending in effect. Its main purpose doubtless was, as has been often recognized by this court, to establish the citizenship of free negroes, which had been denied in the opinion delivered by Chief Justice Taney in Dred Scott v. Sandford, . . . and to put it beyond doubt that all blacks, as well as whites, born or naturalized within the jurisdiction of the United States are citizens of the United States. . . . But the opening words, “All persons born,” are general, not to say universal, restricted only by place and jurisdiction, and not by color or race . . . .

The real object of the Fourteenth Amendment of the Constitution, in qualifying the words, “All persons born in the United States” by the addition “and subject to the jurisdiction thereof,” would appear to have been to exclude, by the fewest and fittest words (besides children of members of the Indian tribes, standing in a peculiar relation to the National Government, unknown to the common law), the two classes of cases – children born of alien enemies in hostile occupation and children of diplomatic representatives of a foreign State – both of which, as has already been shown, by the law of England and by our own law from the time of the first settlement of the English colonies in America, had been recognized exceptions to the fundamental rule of citizenship by birth within the country.

In the case of Wong Kim Ark, the Court fully discarded the words of these former decisions. It is especially interesting that the Court completely overlooked the point in the Slaughterhouse decision that, but for the freeing of slaves, these three amendments would not exist, meaning they were never intended to apply to the general public. That seems to be a very critical point.

In rendering a decision in United States v Wong Kim Ark, the Court took a bizarre path, given the clarity of these earlier rulings. Here are some excerpts of that decision for your consideration specifically regarding the 14th Amendment.

It was Chief Justice Fuller, author of the dissenting opinion, who got it right. Unfortunately, that opinion has been lost in the wells of history. His opinion was not only in keeping with the original intent of the amendment, but respected the precedent of earlier case law that acknowledged that original intent.

There is an additional point to be made about which the majority opinion is completely silent. No reason is given concerning why, after the ratification of the 14th Amendment thirty years earlier, no child born of non-citizens in the United States was granted birthright citizenship. If, as the majority opinion claimed, the wording of the amendment was so plainly intended to be universal rather than limited, then why, in the three decades following, was it not applied universally? Why was not case after case brought before the Court by foreigners in an attempt to seek birthright citizenship for their children based on the wording of the amendment? The answer seems clear. In those thirty years it was universally recognized that the 14th Amendment did not apply to foreigners seeking U.S. citizenship.

From 1868 to 1898, there was a clear understanding of the intent and application of the 14th Amendment. Foreigners who lived in or visited the United States, and sought citizenship in this country were subject to the naturalization laws, notwithstanding the declarations of the 14th Amendment.

In the majority opinion, the justices appealed to English common law as a natural example of birthright citizenship. However, that appeal demonstrates that the Court lacked a basic understanding of English common law, or, at the very least, misapplied that law. In England, a person did not become a citizen at birth. Instead, a child born in England became a subject of the state rather than a citizen, and there is a considerable difference.

A subject is under the authority of the government, or monarch, with limited rights, but nonetheless saddled with all the responsibilities the government expects him/her to fulfill. A citizen, on the other hand, is able to claim part ownership in the nation from which that citizenship is derived. Consequently, the reference to English common law demonstrates the weakness of the Court’s decision. This is especially disturbing given the magnitude of the case.

There is an additional point to be made in the case of United States v Wong Kim Ark. At no time in the majority opinion was there any mention of the Naturalization Act of 1802 or the earlier cases that could have been relied upon for Supreme Court precedent. It seems the Court sidestepped those arguments that might have obstructed their decision concerning birthright citizenship. This must have been intentional as the law and Court precedents would have formed a huge hurdle for the justices to overcome.

While the Court, in the case of Wong Kim Ark, rightfully took into consideration what they determined to be the young man’s allegiance to the U.S. over a span of more than two decades, he was born of non-citizens so that allegiance could not have been known on the day of his birth. Had he not returned to the U.S. in 1890 after his parents took him back to China, Wong Kim Ark would never have been considered a citizen of the U.S. That having been said, in this case at least both conditions of the 14th Amendment – birth and jurisdiction (allegiance) – were met. However, his dual status of birth and allegiance should not have served as the primer for the watered down principle of citizenship by birth alone.

In the case of Wong Kim Ark, the Supreme Court essentially revised the law, as they are often wont to do. Given the original intent of the 14th Amendment and the precedent established in earlier cases, this case should not have been decided on the basis of the 14th Amendment, as misconstrued by the Court. Instead, the Wong Kim Ark decision should have leaned on The Naturalization Act of 1802. As noted by Justice Fuller in his dissenting opinion, the 14th Amendment, at least where Section 1 was concerned, should not be applied to the case of a child of foreigners who happened to be born in the U.S. Instead, the Court should have recognized that the 1802 statute was the controlling legal authority in the case.

Stay tuned to constitutionmatters.net. In Lesson 5, which will appear on this website on Thursday, May 14, 2026, you will find a review of 20th century immigration laws and how they have impacted the formation of the U.S. population over the past century.

                                       End Lesson 4

By the Thirteenth Amendment of the Constitution, slavery was prohibited. The main object of the opening sentence of the Fourteenth Amendment was to settle the question, upon which there had been a difference of opinion throughout the country and in this court, as to the citizenship of free negroes, Scott v. Sandford, . . . and to put it beyond doubt that all persons, white or black, and whether formerly slaves or not, born or naturalized in the United States, and owing no allegiance to any alien power, should be citizens of the United States, and of the State in which they reside. . . .

In providing that persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens, the Fourteenth Amendment undoubtedly had particular reference to securing citizenship to the members of the colored race, whose servile status had been obliterated by the Thirteenth Amendment and who had been born in the United States, but were not and never had been subject to any foreign power. They were not aliens (and, even if they could be so regarded, this operated as a collective naturalization), and their political status could not be affected by any change of the laws for the naturalization of individuals. . . .

These words appear to not only disregard those earlier rulings, but stand in direct conflict with those decisions. What is even more puzzling is that the majority opinion was authored by Justice Horace Grey, who wrote the majority opinion in Elk v Wilkins. In United States v Wong Kim Ark, Justice Grey fully abandoned the eloquent and rational constitutional arguments he had offered eleven years earlier. However, in his dissenting opinion, Chief Justice Melville W. Fuller highlighted that contradiction, stating:

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