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.
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.
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 maxim: Stare 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.