United States v. Wong Kim Ark was an 1898 U.S. Supreme Court case in which the Court ruled 6–2 that a child born in the U.S. to Chinese nationals with permanent residence—but not citizenship—automatically becomes a U.S. citizen. The ruling established a key—and as of now legally unchallenged—precedent that the Citizenship Clause of the Fourteenth Amendment (ratified in 1868) should be interpreted broadly.
Plaintiff Wong Kim Ark, who was born in San Francisco in 1873, to Chinese parents who were legally domiciled and resident there at the time. Following a trip abroad, Wong returned to the U.S.—which had done without incident before—only to be denied entry based on the 1882 Chinese Exclusion Act, which prohibited immigration from China. Border agents argued that Wong was actually a Chinese subject rather than a citizen because his parents were Chinese, and thus the Act applied to him.
Wong challenged the government’s refusal to recognize his citizenship, and both the district court in California and the Ninth Circuit Court agreed he had citizenship. The government appealed all the way up to the Supreme Court, which had never decided the question of the citizenship status of U.S.-born children of alien parents.
The case highlighted disagreements over the precise meaning of Citizenship Clause—namely, the provision that a person born in the U.S. who is “subject to the jurisdiction thereof” acquires automatic citizenship. The Supreme Court’s majority concluded that the clause needed to be interpreted in light of English common law—from which the U.S. legal system derives—which for centuries had recognized virtually all native-born children as automatic citizens, except those born to foreign rulers or diplomats, born on foreign public ships, or born to enemy forces occupying the territory in wartime. Thus, they concluded that the phrase “subject to the jurisdiction thereof” referred to being required to abide by U.S. law, thereby granting U.S. citizenship to at least some children born of foreigners because they were born on American soil—a concept known as jus soli, or “right of soil”.
By contrast, the court’s dissenters argued that being subject to the jurisdiction of the U.S. meant not being subject to any foreign power—i.e. not being a citizen by another country, such as through jus sanguinis (“right of blood”), citizenship is granted only to anyone born to a citizen (this is the most common approach worldwide). This interpretation would exclude most children of foreigners, such as those whose parents were staying for a limited time, or who otherwise have no intention of becoming U.S. citizens. This foreshadowed the current debate about whether birthright citizenship should apply to children born to illegal immigrants.
However, the dissenters also cited racial and cultural reasons why Chinese, in particular, could not be full-fledged citizens, namely that Chinese law made renouncing one’s allegiance to the Emperor a capital crime. Of course, this assumed such allegiance mattered to one’s eligibility for U.S. citizenship: based on the two dissenters’ interpretation of jurisdiction, it does, since it means they are thus subject to a foreign power; but the other six justices rejected this argument, since they interpreted jurisdiction differently.
Wong’s victory was shocking given the widespread resentment and discrimination against Chinese, as evidenced by an act of Congress dedicated specifically to excluding them. An editorial in the San Francisco Chronicle published two days after the decision may have captured the prevailing reaction: namely that it would open the door to citizenship and voting rights to other undesirable peoples, such as Japanese and Native Americans; the editorial suggested that “it may become necessary … to amend the Federal Constitution and definitely limit citizenship to whites and blacks.”
In any event, the broad jus soli principle established by Wong Kim Ark has never been seriously questioned by the Supreme Court or any lower court, notwithstanding occasional Congressional attempts to pass a law or even ratify an amendment to restrict it. In the 1982 case Plyer v. Doe, the Supreme Court reaffirmed the broad view of the Citizenship Clause, ruling that illegal alien children are people “in any ordinary sense of the term,” and therefore had protection from discrimination unless a substantial state interest could be shown to justify it. Both the majority and the dissent agreed on the broad interpretation of the Citizenship Clause:
Texas officials had argued that illegal aliens were not “within the jurisdiction” of the state and thus could not claim protections under the Fourteenth Amendment. The court majority rejected this claim, finding instead that “no plausible distinction with respect to Fourteenth Amendment ‘jurisdiction’ can be drawn between resident immigrants whose entry into the United States was lawful, and resident immigrants whose entry was unlawful.”
The dissenting opinion also rejected this claim, agreeing with the Court that “the Equal Protection Clause of the Fourteenth Amendment applies to immigrants who, after their illegal entry into this country, are indeed physically ‘within the jurisdiction’ of a state.” The dissent simply concluded that the distinction the statute drew should survive an equal protection attack.
Nonetheless, legal scholars remain increasingly divided about Wong Kim Ark’s application to children born to illegal immigrants. One argument is that the jurisdiction of the U.S. requires a status of “full and complete jurisdiction” that naturally does not apply to foreign nationals who are in the country illegally. A counter-view is that because Wong’s parents were themselves not eligible for citizenship and other rights, their situation is very much like those of illegal immigrants. Scholars differ on the original intent of the Fourteenth Amendment, with some claiming the drafter never had in mind to permit unconditional jus soli citizenship, while others have found debates and conversations among the Senators involved suggesting that they did.