Wong Kim Ark and the 1898 Birthright Case, Read Fairly From Both Sides

Everybody has an opinion about birthright citizenship, and almost nobody has read the case. Ask a partisan on either side what United States v. Wong Kim Ark decided, and you will get a slogan. One side says it settled everything. The other says it settled almost nothing. Both are wrong, and the way to see why is to do the unfashionable thing and read what the Court actually wrote.

I intend to be fair to both sides here, because the question is too important for anything less. A conservative who wants to win this argument has to win it against the best version of the other side, and that starts with knowing what the best version is.

The Text on the Table

The Fourteenth Amendment, ratified in 1868, begins with this sentence in Section 1:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.

Two conditions sit side by side: birth or naturalization in the United States, and being "subject to the jurisdiction thereof." Everything in this debate turns on the second condition. Every person born on American soil is, in some sense, subject to American law, since a tourist who robs a bank gets prosecuted. So the phrase must mean something more than "obliged to obey the traffic code," or it would have no work to do. What more? That is the question the Court faced in 1898, and it is the question we still argue about. For a close reading of the six words, see Subject to the Jurisdiction Thereof, Six Words at the Center of Citizenship.

The Facts of the Case

Wong Kim Ark was born in San Francisco, in the early 1870s by the Court's account, to Chinese parents who lived in the city lawfully and ran a business there. His parents were subjects of the Chinese emperor, and under the law of the day they could not become American citizens, because naturalization was then closed to the Chinese. Wong grew up in the United States and worked as a cook.

After a visit to China, he returned to San Francisco in 1895 and was refused permission to land. The collector of customs said he was not a citizen and so fell under the Chinese Exclusion laws. Wong sued. The government's argument was that a child born here to parents who owed allegiance to a foreign emperor, and who could not themselves become citizens, was not "subject to the jurisdiction" of the United States in the sense the amendment used.

The Court ruled for Wong, six to two, in an opinion by Justice Horace Gray. Chief Justice Melville Fuller dissented, joined by Justice John Marshall Harlan. Justice Joseph McKenna took no part.

The Holding, Stated Carefully

The Court answered a specific question. It asked whether a child born in the United States, to Chinese parents who were subjects of the emperor but who had a permanent domicile and residence here, carried on business here, and were not employed in any diplomatic or official capacity, became a citizen at birth. It held that the child did.

Notice the facts packed into that question. The parents were lawfully present. They had a permanent domicile. They were not diplomats. The decision answered for that case. I will come back to how much more it covers, because that is where the fighting is.

The Majority's Reasoning

Gray built his opinion on the English common law, which the Founders and the framers of the Fourteenth Amendment inherited. Under the common law rule, going back at least to Calvin's Case in 1608, a person born within the allegiance of the sovereign was a natural-born subject of that sovereign. Birth on the soil, in the sovereign's protection, made you his. The rule of jus soli, the law of the soil, was the English rule and, in Gray's account, the American one.

Gray then noted the exceptions the common law had always carried. Children born to foreign diplomats did not become subjects, since their parents were not under the sovereign's jurisdiction. Neither did children born on foreign public ships, or children of enemies born during a hostile occupation of a territory. Gray added, with respect to the amendment itself, that the clause excluded children of members of Indian tribes owing direct allegiance to their tribes.

His conclusion was that the Fourteenth Amendment affirmed the old rule and the old exceptions and did not create a new set. He pointed out that the amendment's opening sentence was written in broad terms, and that the Civil Rights Act of 1866, which the amendment constitutionalized, had been aimed at overturning Dred Scott v. Sandford (1857), the decision that said descendants of enslaved Africans could never be citizens. A rule meant to end that kind of caste would not sensibly be read as creating a new one for the children of immigrants.

Chief Justice Fuller's Dissent

Fuller's dissent deserves better than the dismissal it usually gets. His argument was that "subject to the jurisdiction" had to mean something, and that the Court had flattened it.

He argued, first, that the common law rule of allegiance came from feudal tradition, in which a subject owed perpetual loyalty to a king, and that the American Revolution rejected that notion. Americans, in the founding view, held that allegiance rested on consent. A child born to parents who owed their allegiance elsewhere, and who could not become citizens even if they tried, did not fit a consent-based nation.

Second, he said Congress had power over citizenship, and that the Chinese exclusion laws showed Congress had treated Chinese subjects as a class that could not join the national community. It was odd to say their children became citizens by the mere fact of birth.

Third, he relied on the reading of the clause that the amendment's own sponsors had given. In the Senate debates of 1866, Senator Lyman Trumbull, as Fuller quoted him, said the phrase meant "Not owing allegiance to anybody else." Senator Jacob Howard, who introduced the clause, said it would not include persons born here who were foreigners or aliens, such as those belonging to the families of ambassadors or foreign ministers. Fuller argued that those statements, taken together with the Court's own earlier language, suggested a narrower rule than Gray gave.

The Case Called Elk v. Wilkins

The best card in the critics' hand is a case that came fourteen years earlier. In Elk v. Wilkins (1884), John Elk, a Native American born on a tribal reservation who had left it and lived in Omaha, Nebraska, tried to register to vote. The Court held that he was not a citizen, though he was born in the United States. He was born a member of a tribe and owed his immediate allegiance to it, not to the United States, so he was not "subject to the jurisdiction thereof" within the meaning of the amendment. Congress later extended citizenship to all Native Americans born within the territorial limits of the country, in the Indian Citizenship Act of 1924.

Why does Elk matter? Because it shows that the Court read "subject to the jurisdiction" to require more than being physically present and answerable to criminal law. It required something like political allegiance. Critics of broad birthright citizenship say that is the key: if allegiance mattered for a Native American born here, it must matter for others, and children of people whose presence is unlawful, or temporary, do not owe the same allegiance.

Defenders answer that Wong Kim Ark itself dealt with Elk. Gray treated it as an application of the tribal exception, which rested on the tribes' status as separate political communities with treaty relations with the United States. That does not carry over to people who come here from other countries and live under American law. A fair reader sees that both accounts are plausible readings of the same pages.

What the Case Leaves Open

Now we come to the question the opinion did not decide. Wong's parents were lawfully domiciled here. The Court's holding, strictly read, covers children of such parents. It does not say, in terms, what happens when the parents are in the country unlawfully, or when they are here temporarily as tourists or on short-term visas.

Here is how each side reads the silence.

The side that favors broad citizenship says the reasoning of the opinion does not depend on the parents' immigration status. Gray's logic rests on birth within the sovereign's territory and under the sovereign's protection. Every person present here, lawfully or not, is under the jurisdiction of American law in the way the opinion describes, so the exceptions he listed are the only ones. He also had before him a statute, the exclusion laws, under which Wong's parents could not become citizens, and he did not rest on their lawful status as the key. That is the broad reading.

The side that favors narrowing says the opinion keeps returning to the facts: "permanent domicile and residence," carrying on business, lawfully here. Courts decide cases, not abstractions, and when a court ties its rule to a set of facts, a later court may ask whether the rule extends past them. The Court also relied on Elk for the point that allegiance matters. That is the narrow reading, and it is a respectable legal argument, not a fringe one. The broad side can point to a footnote in Plyler v. Doe (1982) saying the Fourteenth Amendment's reach over persons within a state's jurisdiction does not turn on whether their entry was lawful, but that was a remark in a schooling case about equal protection, not a ruling on citizenship. See Plyler v. Doe and the Bill States Pay for a Decision Congress Never Made.

I will give you my own view in plain terms. The broad reading has the stronger claim on the opinion's reasoning, because the reasoning is about soil and sovereignty and not about visa categories. The narrow reading has the stronger claim on the opinion's facts, and a question this large ought to be decided by a Court squarely presented with it, or better, by Congress and the states acting through the amendment process. Anyone who tells you the answer is obvious is selling something.

What Each Side Should Concede

Each side has points it should give up, and the arguments are better for it.

The broad side should concede that the case did not decide the unlawful-presence question, that the phrase "subject to the jurisdiction thereof" has to be doing some work, and that the drafters spoke of allegiance. It should concede that other democracies, most of Europe among them, do not grant citizenship on birth alone, which shows that unconditional birthright citizenship is not a requirement of free government. For the comparison, see Most of Europe Does Not Grant Citizenship by Birth Alone. Here Is the Map.

The narrow side should concede that the common law rule was real and old, that Gray's opinion rested on a long reading of it, that the amendment's authors were fighting the legacy of Dred Scott and wanted a rule that could not be gamed, and that a century and more of practice, with the executive branch granting passports to such citizens, carries weight. It should also concede that changing the rule by statute, as some propose, runs into a Court that may well read the amendment broadly, and that the safer course is a constitutional amendment, which takes the people's consent, as it should.

The Founding Question

The deepest part of the debate is the Founders' own: what makes someone a member of the republic? The Declaration says governments derive their just powers from the consent of the governed. The old English answer was birth under the king's protection. The American answer, as it developed, was consent: the right to expatriate and the power of Congress to set naturalization terms. Citizenship by birth sits between those two ideas, and the Fourteenth Amendment's drafters put it in the Constitution on purpose, to end the notion that a government could decide by statute that a class of people born here could never be citizens.

That purpose is conservative in the best sense. It limits what a legislature can do to a class of people. If the narrow side wants to change the rule, it should say how, and it should do so by a method that respects the same limit.

The case in brief

1. The Fourteenth Amendment makes citizens of those born here and "subject to the jurisdiction thereof," and the entire debate is about the meaning of the second condition.
2. Wong Kim Ark (1898) held, six to two, that a child born in San Francisco to lawfully domiciled Chinese parents was a citizen at birth, relying on the English common law and its listed exceptions.
3. The dissent and Elk v. Wilkins (1884) show that the Court has read the jurisdiction clause to require allegiance, not mere presence, which gives the narrow reading real support.
4. The opinion's facts, lawful domicile and permanent residence, leave open the case of parents unlawfully present or only visiting, and neither side can honestly claim the text answers it.
5. Because the question is large and unresolved, the legitimate paths are a case that squarely presents it or a constitutional amendment, not slogans.

What you can do: read Section 1 of the Fourteenth Amendment on the Constitution page, then read Justice Gray's opinion and Chief Justice Fuller's dissent back to back before you argue the question with anyone.