United States v. Wong Kim Ark

169 U.S. 649 (1898)

The Supreme Court held that citizenship as prescribed in the Fourteenth Amendment extends to U.S.-born children of foreign subjects or citizens who, at the time of the child’s birth, are permanent residents and are carrying on business in the United States. Such children acquire U.S. citizenship at birth, but this does not apply if the parents are in the United States in any diplomatic or official capacity. (Read the opinion here.)

The person named in the case, Wong Kim Ark, was born in San Francisco in 1873 to laborers of Chinese descent. His parents were Chinese subjects but maintained a permanent domicile in San Francisco. After arriving back from a temporary visit to China in 1895, Wong Kim Ark was detained at the port of San Francisco and refused permission to land. This was due to the Chinese Exclusion Act, which came into force in 1882, in general forbidding Chinese persons from entering the United States and Chinese residents from naturalizing as citizens. Wong Kim Ark contended that he was a U.S. citizen as prescribed by the Fourteenth Amendment due to his birth in the United States, and therefore the Chinese Exclusion Act did not apply to him. The government argued that since Wong Kim Ark’s parents were Chinese subjects, he did not fall under U.S. jurisdiction and so failed the “subject to the jurisdiction thereof” qualification of the Amendment in conferring citizenship at birth.

In a majority opinion delivered by Justice Gray, the Court first noted that there is no statutory definition of a citizen, except the inclusionary clause in the Fourteenth Amendment stating that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof” are citizens. The Court therefore relied on common law to interpret this and other clauses concerning citizenship. The main principle that the Court chose to draw was from Calvin’s Case, a 17th century English common law case that held a person born within the territory of a King owes him allegiance, and is therefore the King’s subject. The Court then referenced a series of commentaries and cases in both English and U.S. common law that showed subsequent decisions since Calvin’s Case have been consistent with this principle. Persons born within the United States have always been in general assumed to be British subjects, and later U.S. citizens. In particular, this treatment was applied equally to those born to non-citizen parents, except in cases where a child was born in territory occupied by a foreign invasion or where the parents are foreign diplomats or officials.

The Court was also interested in the circumstances surrounding the adoption of the Fourteenth Amendment. It pointed to the Civil Rights Act of 1866, which was passed by the same Congress that adopted the Fourteenth Amendment, stipulating citizenship for “all persons born in the United States, and not subject to any foreign power, excluding Indians not taxed.” From this the Court reasoned that “the opening sentence of the Fourteenth Amendment is throughout affirmative and declaratory, intended to allay doubts and to settle controversies which had arisen, and not to impose any new restrictions upon citizenship.” Further, the Court noted the general principle that “[t]he jurisdiction of the nation within its own territory is necessarily exclusive and absolute. It is susceptible of no limitation not imposed by itself.” The Court therefore interpreted that “subject to the jurisdiction thereof” qualification of the Fourteenth Amendment applies to children of foreign citizens in the United States, except in recognized exceptions of occupied territory and foreign diplomats having immunity from jurisdiction. Combined with the principle of citizenship being conferred through territoriality, which was well-established before the Fourteenth Amendment, the Court decided Wong Kim Ark must have been a citizen from birth.

A dissenting opinion by Chief Justice Fuller, which Justice Harlan joined, disagreed with the majority’s view that the Fourteenth Amendment was intended as a continuation of the English common law rule stemming from Calvin’s Case. In particular, the dissent viewed children born to U.S. citizens born overseas as more deserving of being natural-born citizens than those born in the United States to non-citizen parents, and yet they are not afforded the Constitution’s protection. Further, the dissent argued that the “and not subject to any foreign power” provision in the Civil Rights Act of 1866 showed that Congress intended to exclude children of foreign citizens from the Fourteenth Amendment, as they would be subjects of the same foreign power as their parents. 

Authored by: Xiang Long, Cornell Law School