A forgotten Chinese cook’s Supreme Court case affirmed birthright citizenship

When he arrived in San Francisco Bay, returning from China aboard the steamship Coptic in August 1895, Wong Kim Ark could not have imagined the legal fracas that awaited him.

Nor could he have foreseen that, more than a century later, it would be his Supreme Court case that would refute President Trump’s assertion that as chief executive, he can and will eliminate birthright citizenship with a stroke of his pen.

Amid the nasty national debate over who should be allowed to enter the United States or stay here, about who is an American and who should be denied the rights of citizenship, the saga of a forgotten Chinese cook, born on American soil to immigrant parents, demands attention.

“The case set a bright-line rule: When you’re born here, you’re part of us," said Philadelphia immigration attorney William Stock, a former national president of the American Immigration Lawyers Association, who taught law at Villanova University.

Today, the president disparages Mexican immigrants as criminals, drug dealers, and rapists. When the Supreme Court affirmed Wong’s citizenship in 1898, Chinese immigrants were hated and vilified, particularly in the West, where laborers had been drawn by the California gold rush. The 1882 Chinese Exclusion Act remained in force, banning immigration from China amid a perceived “invasion” of unskilled, job-stealing newcomers.

"Wong Kim Ark is a case known well by law students, and students of constitutional law, but nobody expected him to be a national name in 2018," said Jeffrey Rosen, president and CEO of the National Constitution Center in Philadelphia, and a professor at the George Washington University Law School. “Until recently, you didn’t have any serious questioning of the idea that everyone born in the United States was a birthright citizen.”

Now, that has changed. In an interview released last week, President Trump told Axios news website he would issue an executive order ending citizenship for babies born in the U.S. to non-citizens and undocumented immigrants.

“It was always told to me that you needed a constitutional amendment. Guess what? You don’t,” Trump said.

Wong was born in San Francisco at 751 Sacramento St., the son of Wong Si Ping, a merchant. In 1890, both parents returned to China.

Wong, about 21 at the time, visited China the same year. He returned to the U.S. in July, permitted entry on the sole grounds that he was a native-born American citizen.

Four years later in November 1894, at about 25, Wong again traveled to China.

The photo attached to a departure affidavit shows a young man in traditional Chinese garb, his hair shaved in front and woven in the back into the long queue typically worn by men during the time of the Qing Dynasty.

When Wong returned to the U.S. in August 1895, he was denied entry. Customs officials ruled that he was not a citizen, and furthermore, that he could be immediately deported under the Exclusion Act.

Chinese benevolent associations worked to get him a lawyer.

In court, the government argued that despite Wong’s California birth, he, like his parents, was a subject of the emperor. And that because Wong was Chinese, he was specifically banned by the Exclusion Act.

The Supreme Court disagreed, ruling by 6-2 that Wong’s birth on American soil made him a citizen under the 14th Amendment. That his parents were not citizens, and in fact were subjects of the Chinese emperor, mattered not, the court said in U.S. v. Wong Kim Ark.

“To hold that the 14th Amendment of the Constitution excludes from citizenship the children, born in the United States, of citizens or subjects of other countries,” the court wrote, “would be to deny citizenship to thousands of persons of English, Scotch, Irish, German, or other European parentage who have always been considered and treated as citizens of the United States.”

Many people didn’t like the decision. The San Francisco Chronicle erupted. If Chinese could become American citizens, the newspaper asked in an editorial, who was next? Indians? Japanese? The best course, the Chronicle wrote, would be to amend the Constitution so only white and black people could be citizens.

The 14th Amendment, ratified in 1868, states, “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.”

Most scholars, liberal and conservative, agree it would take a constitutional amendment to deny automatic citizenship to children born here to undocumented immigrant parents.

But NumbersUSA and other groups that favor reduced immigration argue that the 14th Amendment has been misinterpreted and that it was intended to provide citizenship for newly freed slaves. Opponents claim a particular clause — “subject to the jurisdiction thereof” — excludes the children of undocumented immigrants, because the parents are not legally in the U.S.

James Ho, a conservative, Trump-appointed federal appeals court judge, declared that argument empty in a lengthy 2006 analysis of the 14th Amendment. Being subject to U.S. jurisdiction simply means being subject to government authority, that people must obey the laws or face penalty or punishment — regardless of immigration status.

Birthright citizenship, Ho wrote, is “protected no less for children of undocumented persons than for descendants of Mayflower passengers.”

What became of Wong? He had four sons, and grandchildren, and great-grandchildren, some of whom still live in the San Francisco area.

Immigration records show that in 1926, three decades after his Supreme Court case, Wong was still in San Francisco on Sacramento Street, living a few doors from where he was born.

That year, at age 57, he testified at an immigration hearing on whether his youngest son, Wong Yook Jim, should be permitted to enter the U.S. from China. The panel chairman moved that Wong Yook Jim should be admitted as the son of a native-born American.

The vote was unanimous.