Chinese New Year began with much fanfare earlier this week, a fortnight-long holiday for reconnecting with loved ones. When we lived in Taiwan and China, I loved everything about this holiday – except the obnoxious noise of fireworks.
This year the story of a man named Wong comes to mind – a man denied US citizenship because his parents were Chinese. His story speaks to our current national discussion concerning birthright citizenship.
When I was in grad school, two of my favorite courses were in constitutional law. I often refer back to what Robert Miller taught me those two semesters at Baylor University.
Dr. Miller showed me how the U.S. Supreme Court applied the Bill of Rights to the states through the 14th amendment. Before the 14th, rights guaranteed under the Constitution did not necessarily apply at the state or local level. After, if the federal government couldn’t prohibit free speech or attack religious freedom, neither could the states.
But the 14th made another significant change – it defined who could and who could not be a US citizen. Here is how the amendment begins: “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.”
All persons born in the United States are citizens. We call that birthright citizenship.
Prior to the 14th, black Americans – whether enslaved, emancipated, or born free – were not automatically US citizens, even if born here. In its egregious Dred Scott v. Sandford decision of 1857, the Supreme Court had nailed shut the door to citizenship declaring that people of African descent could never be citizens of the United States.
It took a bloody Civil War and the passing of the 13th and 14th Amendments to ensure that the Dred Scott decision was dead to rise no more. Sadly, it would be another century before Constitutional rights were fully applied to Black Americans, but the 14th made those future freedoms possible. Even though their rights were limited, the nation accepted that the newly emancipated were guaranteed birthright citizenship.
Notably, other groups remained excluded from citizenship decades after the 14th became law. Not until the Indian Citizenship Act of 1924 did birthright citizenship finally apply to all Indigenous Peoples residing within the boundaries of the US.
In the case of people of Chinese descent, citizenship was denied whether they were born here or not. For reasons that betrayed the core of American values, 19th century laws restricted the right to immigrate, right to marry, and right to citizenship for those who were Chinese. It would not be until the 1940s before these laws were erased.
Now the U.S. Justice Department is challenging this idea of birthright citizenship. The objection is based on a clause in that sentence above from the 14th, the part some of you may have noticed I left out in my summary statement. It reads: “and subject to the jurisdiction thereof”.
The question being asked is, Are people born in the US, whose parents are not US citizens, under the jurisdiction of US law, meaning under its authority? Alternatively, diplomats – whose children do not have access to birthright citizenship – have what is called “diplomatic immunity.” They are clearly not under our government’s authority.
Everyone else in the US is subject to US authority. Immigrants – legal or otherwise – and their native-born children must obey the laws of the land – they have no immunity. At least that has been the straightforward reading of the 14th: nondiplomatic children born here are subject to US authority and therefore citizens.
Under the 14th, immigrants may become citizens through naturalization. Diplomats and the like cannot. Everyone else has birthright citizenship.
But apparently it is not as settled a matter as I had thought. Does this jurisdiction clause restrict birthright citizenship? That, my friends, promises to be one of the burning issues of the year.
Birthright challengers point to the Civil Rights Act of 1866 (not part of the Constitution and superseded by the 14th which is Constitutional). The 1866 Act excluded from citizenship those subject to a foreign power. The current administration claims that the 14th is based on the 1866 act, thus reinterpreting the “subject to the jurisdiction thereof” clause.
As I said earlier, the 14th took many years to become settled law. Most notably the Act of 1924 finally included all Native Americans. As the 20th century progressed, Congress and the Supreme Court affirmed the 14th in every aspect and in all its implications – and for all peoples, regardless of their ethnicity or ancestral homeland. Today the 14th supersedes whatever other 19th century laws had to say on the subject.
I really do love the U.S. Constitution. While I don’t believe the Constitution is in any way divinely inspired, I do think it is a brilliant piece of work in its amended form (there were issues in the original, for sure, especially its treatment of those enslaved and the lack of a Bill of Rights initially).
I’m especially fond of the 14th because of how it ensures that all of our rights contained in the Bill of Rights apply to everyone in every state. Therefore, I fully accept the concept of birthright citizenship, which to me is as plain as the nose on my face (a very prominent feature, I might add).
However, I am no constitutional lawyer or expert, let alone a federal or Supreme Court judge. I only hope that, as we as a nation debate the merits of how the 14th is applied, we will follow constitutional procedure in defining what the Constitution means or should say.
As we celebrate an auspicious Chinese New Year, the case of United States v. Wong Kim Ark is on my mind. Wong Kim Ark, born in the USA of Chinese descent, was a cook by trade and lived in California in the latter part of the 19th century.
Eventually, he made a trip abroad, only to be denied reentry to the US due to the nefarious Chinese Exclusion Act of 1882. That act banned virtually all Chinese immigration and prohibited Chinese immigrants from becoming naturalized U.S. citizens.
Although both of Wong’s parents were born in China, he was born in California – in 1873. Though his parents lived in the US for many years, they were denied citizenship based on the Naturalization Law of 1802. This law did not explicitly deny citizenship to persons of color; it only made provision of citizenship for “free white” immigrants.
When Wong was 16, he made a trip to China and, while there, got married and had a son. Two years later, he returned to the US. He didn’t bring his wife because the Act of 1882 forbade him to do so. Later he went back to visit his wife, and while there conceived another child. Returning from that trip he was detained and denied permission to enter on the grounds he was not a US citizen. He spent the next five months onboard ships off the coast of San Francisco while his case went to court.
Other people of Chinese descent had faced similar challenges, but Wong’s case was the first to reach the Supreme Court. In that 1898 case, the Court focused on the 14th’s “subject to the jurisdiction thereof” phrase, the very phrase now under review. First, the Court agreed that the Chinese Exclusionary Act did not apply to Wong because he had been born in the US – he himself was not an immigrant. Then the Court affirmed Wong’s citizenship based on the 14th.
I find the whole case a fascinating read, especially in that the Court upheld the concept of jus soli – citizenship based on place of birth – as the correct interpretation of the 14th’s citizenship clause. The Court held that birthright citizenship was to be applied to all native-born children (children born on US soil).
The only exceptions were for those born to foreign rulers or diplomats, those born on foreign public ships, or those born to enemy forces engaged in hostile occupation of the nation (not sure how often that’s happened). Oh, and the Court still excluded certain Indian tribes.
There’s lots more to this case if you are interested. Even if you are not, you can be sure the merits of the case will be much in the news in the months to come. So, prepare accordingly.
Eventually and because of this favorable ruling, Wong’s sons were all able to move to the U.S., three of them becoming citizens. His youngest son was drafted in World War II and made a career in the U.S. Merchant Marine. Sadly, his oldest son was denied citizenship because U.S. immigration officials refused to accept that the young man was Wong’s son.
So, as you follow the birthright citizenship discussion in the coming months, keep in mind the case of Wong Kim Ark. The concept of jus soli as the basis for understanding birthright citizenship has never seriously been questioned by the Supreme Court. Meanwhile, the racial overtones of the various 19th century acts regarding citizenship have been removed from law.
The law of the land today is that all people, regardless of color, ethnicity, or nationality, are to be treated equally under the law and anyone born in the U.S. is a U.S. citizen, unless their parents are foreign dignitaries or diplomats – or enemy forces occupying US territory.
I readily admit this concept of birthright citizenship is more complicated than what I’ve presented here – I do self-impose a word limit on my posts, after all. There are serious, Constitutionally-committed thinkers on the various sides of this discussion. The question is not whether people are breaking the law, but rather how we as a nation define the law we have or whether we change the Constitution – and then how we deal with those we’ve just put outside the gate.
Which raises another question, one that has eternal consequences. As my regular readers know, I write my posts through the lens of faith. What does faith have to say about justice and compassion and people living in the margins? Thus, you might ask, what does this debate about birthright citizenship have to do with those matters of faith?
I am concerned that people now identified as US citizens may find themselves living in the margins. If we say to native-born children of unnaturalized immigrants that they can no longer be citizens, will we be sentencing them to a life of legal ambiguity? Like Wong, they may find themselves living on a boat out at sea.
Like Wong, they’ve grown up here, know our cultures and our ways of life, and are deeply connected here. And they certainly have little, if any connection, elsewhere – there is no “there” to go to. They belong with us.
The US as a sovereign nation has a right, under proper Constitutional procedures, to determine who can and who cannot be a citizen. God knows I love my country and its Constitution, but my first loyalty is to my Lord and Savior, who has called me to love and minister to those in the margins. You can’t get more marginal than a person who doesn’t have proper citizenship in a world that doesn’t know what to do with people who don’t fit into appropriate legal categories.
So, while everyone else debates the jurisdiction clause, my calling is to go love and pray for my friends who are suddenly worrying they may be citizenship-challenged.
My hope is that what I write gets you thinking. And I’m always open to hearing from you, regardless what you think of what I write. You can either comment below or send me a private message on the Contact Us page of my website.
You can read what I’ve written before about Native American and immigrant concerns in these posts: When Native Americans were finally welcomed: 100 years ago today; When our nation shut its doors.
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