Dear Republicans: Allow Me To Introduce You To Someone

One of the stories over the past few years has been the efforts of various Republicans to re-write citizenship laws outlawing “birthright citizenship” to the children born here to undocumented immigrants. The most recent attempt was in January of this year. Each of them has failed, which is why some have even discussed changing the Constitution. Why that? Because they don’t have a leg to stand on. I’d like to introduce them to someone.

Source: Wikimedia Commons

Who is he?  Was he a famous ruler, businessman, artist, inventor, or scientist?  No, he worked as a cook in San Francisco.  But 115 years ago today, he became the reason why all the various attempts to deny citizenship to those born here are doomed to failure.   His name?  Wong Kim Ark.

What happened?

Wong visited China in 1890, and upon his return to the United States in July 1890, he was readmitted without incident because of his U.S. citizenship. In November 1894, Wong sailed to China for another temporary visit, but when he returned in August 1895, he was detained at the Port of San Francisco by the Collector of Customs, who denied him permission to enter the country, arguing that Wong was not a U.S. citizen despite his having been born in the U.S., but was instead a Chinese subject because his parents were Chinese.

It’s important to remember that at that time in history, Chinese were the subject of a great deal of prejudice, and very unwelcome in this country.  So much so that the Chinese Exclusion Act was passed.  That act excluded Chinese from entering the United States for (at the time) 10 years.  Later acts, like the Scott Act expanded on that, by stating that any Chinese who left the country would not be readmitted, followed by the Geary Act in 1892 which:

The law required all Chinese residents of the United States to carry a resident permit, a sort of internal passport. Failure to carry the permit at all times was punishable by deportation or a year of hard labor. In addition, Chinese were not allowed to bear witness in court, and could not receive bail in habeas corpus proceedings.

In addition to that, there was the Burlingame Treaty with China, which specifically stated that Chinese immigrants would not be allowed to become naturalized citizens.  So it’s understandable as to why Customs wouldn’t allow him reentry, despite his claiming to be a U.S. citizen.    There was also considerable pressure to make sure that Chinese weren’t citizens, because there were some legal questions:

San Francisco attorney George Collins had tried to persuade the federal Justice Department to bring a Chinese birthright citizenship case before the Supreme Court. An article by Collins was published in the May/June 1895 American Law Review, criticizing the Look Tin Sing ruling and the federal government’s unwillingness to challenge it, and advocating the international law view of jus sanguinis citizenship. Eventually, Collins was able to convince U.S. Attorney Henry Foote, who “searched for a viable test case and settled on Wong Kim Ark” ….

The question of the citizenship status of U.S.-born children of alien parents had, up to this time, never been decided by the Supreme Court.

Thus began United States v. Wong Kim Ark.   The Supreme Court looked at the entire history of citizenship laws, the debates surrounding the drafting and adoption of the 14th Amendment, and came to this conclusion:

The evident intention, and the necessary effect, of the submission of this case to the decision of the court upon the facts agreed by the parties were to present for determination the single question stated at the beginning of this opinion, namely, whether a child born in the United States, of parent of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States. For the reasons above stated, this court is of opinion that the question must be answered in the affirmative. (bolding mine)

The Court reached that decision just 30 years after the 14’th Amendment was passed, and in an era when it was common to hate, fear, and discriminate against those of Chinese descent.  It was even enshrined in the law.  Despite all that, they decided what was right, what the Constitution said, and what the 14’th Amendment was saying.  In case after case since then, courts at all levels have reached the same conclusion:  If you are born here, you are a citizen.   One of the key citations in them is the precedent case:  United States v Wong Kim Ark.

There is a Latin maximStare decisis et non quieta movere: “to stand by decisions and not disturb the undisturbed.”  In law, this has become stare decisis, or precedent:

The principle of stare decisis can be divided into two components.

The first is the rule that a decision made by a superior court, or by the same court in an earlier decision, is binding precedent that the court itself and all its inferior courts are obligated to follow. The second is the principle that a court should not overturn its own precedent unless there is a strong reason to do so and should be guided by principles from lateral and inferior courts. The second principle, regarding persuasive precedent, is an advisory one that courts can and do ignore occasionally.

After 115 years, numerous cases and attempts to get around it, it still stands.  This is why all the attempts will fail:  stare decisis.  It has been decided.    There’s another lesson here as well.  Despite all the fear, bigotry, xenophobia, and outright demagoguery various right wing politicians have been promulgating, and introducing laws attempting to enshrine that, in the end they’ll fail.  Just as attempts to keep other immigrants out and deny them citizenship, like the Chinese, failed.

So, Republicans, meet Wong Kim Ark.   An unassuming young man who made a statement:  I am an American citizen.  115 years ago today the Supreme Court said he was right.  He’s the reason your current attempts are doomed to fail, and I thought you should get to know the person responsible.

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16 Comments

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16 responses to “Dear Republicans: Allow Me To Introduce You To Someone

  1. Thanks fro raising this Norbrook. I had forgotten about this other dark side of American history toward the “yellow man”.

    I hope you’re right about stare decisis prevailing. It didn’t seem to hold in the Roberts Court with the Citizens United case about money as speech and its involvement in the election process.

    • Citizens United was more an expansion – to a degree that I don’t think was warranted – of a technically existing state.

      This is a case which built on an existing principle in American law, and has since been cemented into place to an extent that even the more … radical … judges have not touched it. One of the “unintended consequences” of the birther movement has been to build up a large recent body of decisions by judges across the spectrum saying it. I don’t think there’s a single judge on the current Supreme Court that’s going to – assuming they wanted to touch it in the first place – overturn it.

      • I think the court en toto won’t allow this but that’s not to say that Scalia won’t make some hair-brained analysis of why this could happen. :-(

        • True. Besides being the first real case like this, the reason it’s such a strong precedent case is that the justices went back over all the various principles of citizenship, along with the history of both English common law, American jurisprudence to date, and exactly what was mean by the founders writing the Constitution, and Congress when they wrote the 14th Amendment. It’s fascinating reading, and the interesting thing is how many of the Republicans complaining about “anchor babies” are raising the same arguments that were raised in this case.

      • Besides the fact the SC ruled on an aspect of the case that was not before them in order to reach that opinion.

      • nathkatun7

        “I don’t think there’s a single judge on the current Supreme Court that’s going to – assuming they wanted to touch it in the first place – overturn it.”

        I hope you are right about this, Norbrook. I am not as confident as you are when it comes to Justices Scalia,Thomas and Alito. Even Kennedy and Roberts are iffy as they have a tendency to be swayed by ideology.

        • I’m a little more confident, because while this is the precedent case, it’s not the only one. There are cases stretching back almost to the beginning of this country, all going with “born here = citizen.” The earlier cases were white males, of course. :roll: But since this case, there’s another line of decisions from the Supreme Court which have all reached the same conclusion. One of the more notable ones was Perkins v Elg, which was a unanimous decision.

          Chief Justice Hughes wrote for the Court:

          Elg became a citizen of the United States upon her birth in New York; the Civil Rights Act of 1866 had specifically addressed the issue of a child born in the United States to alien parents;
          When a citizen of the United States who is a minor has parents who renounce their American citizenship, the minor does not lose his American citizenship as a result, “provided that, on attaining majority he elects to retain that citizenship and to return to the United States to assume its duties”;

          In other words, not only did it reaffirm US v Wong Kim Ark, it also said that the only person who can give up your citizenship is you. Succeeding Supreme Courts have at various times had similar cases, all attempting to “get around” it, and have been bounced back pretty hard. Given that level of precedent, while someone like Scalia might be tempted to go off on a tangent, I can’t see Kennedy, Roberts, or even Thomas and Alito wanting to go that way.

  2. nabsentia23

    Now we know why many right-wingers hate the 14th Amendment.

    • In particular, section 1. It gave all those non-white, non-Christian (Protestant, at that) people ideas, that they were somehow due the same rights.

    • nathkatun7

      Indeed! Of course their hatred didn’t stop them from invoking the Equal Protection clause of the 14th Amendment in “Bush v. Gore”

  3. Vic78

    I wonder if the people that put the 14th amendment together knew that they were setting things up for what we have now. I knew the conservatives saw it coming.

    • Reading the debates over it, and the discussion of the precise wording, the answer is yes, somewhat. They foresaw some of what we know now, but not all of it. One thing they were very aware of is that they were saying that the Bill of Rights applied to all states.

      • nathkatun7

        You are absolutely right Norbrook that the framers of the 14th Amendment wanted to leave no doubt that the Bill of Rights applied to the States. The other objectives they hoped to achieve was to get rid of the 3/5th clause of the Constitution and to nullify (or is it supersede) the 1857 Supreme Courts’ Dred Scott decision which had categorically stated that descendants of Africans, free or slaves, were not and could not be citizens of the United States.

        • Exactly. It was also written to make sure that the 1866 Civil Rights Act wasn’t “superceded” by some Congress down the line. Dred Scott is considered by every historian and legal scholar to be the single worst Supreme Court decision.

  4. aquagranny911

    Stellar Diary!!!

    Muchas Gracias for taking your time to research & write this. I learned so much & I am grateful. I have nothing else to add.

    • Thanks. Most of the time was spent writing, not researching. :-D I have the benefit of having spent a lot of time on anti-birther boards over the past 5 years, and the people there have done a lot of the research already. Wong Kim Ark is the reason they keep insisting that President Obama wasn’t born in Hawaii. :roll: