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Philip Wolgin Headshot

Dear Tom, the 14th Amendment Has Come Before the Supreme Court

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Recently I saw a CNN debate between Michele Waslin of the Immigration Policy Center and Former Representative Tom Tancredo (R-CO) on the issue of birthright citizenship and the 14th Amendment. The most incredible part of the video, for me at least, was Tancredo's insistence that the issue of birthright citizenship has never come before the Supreme Court. As anyone who has taken a course on the history of U.S. immigration, or an introductory constitutional law class would know, the very idea of granting citizenship to those born on U.S. soil came from a Supreme Court decision in 1898, Wong Kim Ark.

The parallels between then and now are striking: Wong Kim Ark was decided at a time of extreme nativist sentiment, in this case directed against Chinese and other Asian immigrants, (rather than the current discourse against "illegals", which more often than not refers to Latinos.) As early as 1875 with the Page Laws, Congress had legislated the exclusion of Chinese immigrants, and by the end of the 19th century, most Asians were barred from entering the United States or becoming naturalized citizens. (Asian exclusion did not fully end until the Immigration Act of 1965, and it helped to produce such travesties as the internment of Japanese Americans during World War II.)

Wong Kim Ark had been born in San Francisco in 1873 to Chinese citizens. He travelled outside of the country, and upon attempting to return in 1895, was denied entry on the basis of the Chinese exclusion laws already on the books. The government claimed that as a person of Chinese descent, he was automatically barred from entering the U.S., even if he had previously lived in the country. The Supreme Court disagreed, however. In a landmark 6-2 decision, the Court ruled in Ark's favor, stating that

A child born in the United States, of parents 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, by virtue of the first clause of the Fourteenth Amendment of the Constitution, "All person 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."

In other words, the court ruled unambiguously that under the 14th Amendment anyone born in the United States automatically becomes a U.S. citizen. Since Wong Kim Ark, the U.S. has granted citizenship to all children born in the United States.

Say what you want about current politics, but I for one think it would be foolish to overturn 112 years of precedent. If a new case did ever reach the Supreme Court I would hope that today's justices would reject the tide of nativism, as they did in 1898.