March 28, 2014
Immigration is one of the most divisive social issues today. Just under two years ago, the Supreme Court ruled in Arizona v. United States, a hotly controversial case which dealt with Arizona’s stringent new immigration laws (the bulk of these laws were struck down in the ruling).
Not only was the debate fierce between each position’s respective proponents outside of the Court, the Arizona opinion itself found a scathing dissent by Justice Scalia that railed against progressive immigration policies and, to an extent, immigrants themselves.
The debate continues today in the form of the Border Security, Economic Opportunity, and Immigration Modernization Act of 2013, an sweeping immigration reform bill which passed the Senate last year, but faces heavy opposition within the Republican-controlled House.
Debate over immigration isn’t anything new, however; rather, it can trace its roots back to the founding of this nation. Throughout U.S. history, new waves of immigrants would arrive on U.S. shores – which were virtually always met with resistance and hostility by a sizeable portion of the population already residing therein.
One such wave of immigration – along with its respective counteraction by the existing populace – ultimately resulted in the interpretation of the Fourteenth Amendment’s “Citizenship Clause” that we know today – that all children born on U.S. soil are U.S. citizens (with limited exception).
This interpretation was laid down by the Supreme Court in United States v. Wong Kim Ark, which was decided 116 years ago today, on March 28, 1898.
Wong Kim Ark was the result of anti-Chinese immigration sentiment in the late 19th century. This sentiment produced a series of laws that began with 1882’s Chinese Exclusion Act, which criminalized all immigration from China and created barriers to reentry for lawful Chinese residents already living in the U.S. (if they left the country and later returned). 1888 brought the Scott Act, which prohibited all Chinese non-citizens from reentering the country altogether.
It is against this backdrop that the facts of Wong Kim Ark arise: Wong Kim Ark was born in the U.S. as the son of two Chinese immigrants. Wong’s parents returned to China in 1890; Wong followed, but only for a short-term visit. Wong returned to the U.S. in the same year, and was granted reentry to the country without issue.
Wong again visited China in 1894; when he tried to return this time, however, he was denied entry. This is most likely due to the passage of the Geary Act in 1892, which required all Chinese residents, citizens or not, to prove their lawful residence upon request with a “resident permit.”
Wong challenged this determination, arguing that he was a citizen because he was born in the U.S. The government, in response, argued that Wong was a Chinese citizen since his parents were both Chinese citizens at the time of Wong’s birth (these two competing principles of citizenship are respectively known as jus soli and jus sanguinis).
The district court ruled in favor of Wong, and the Supreme Court agreed to review the case. The Court sided with Wong, following English common law in adopting the principle of jus soli – that citizenship at the time of one’s birth is determined by the place in which he or she is born. Chief Justice Melville Fuller, joined by Associate Justice John Harlan, dissented, advocating instead for adoption of jus sanguinis – citizenship inherited from one’s father, regardless of the place of birth.
Clearly, had the Court ruled as the dissent wanted, immigration law would be vastly different than we currently know it. In truth, the history of this nation would be vastly different than we currently know it, since a large number of influential figures throughout history – including current U.S. President Barack Obama – are second-generation immigrants.
As such, it should come as no surprise that Wong Kim Ark is controversial even today, with some legal scholars arguing that the ruling doesn’t apply to the children of undocumented immigrants and some members of Congress attempting to overrule the 116 year-old case through a constitutional amendment or some other legal means.
Nevertheless, despite disagreement with Wong Kim Ark within some portions of the population, the ruling appears to be in no danger of invalidation. Thus, it will remain one of the most significant cases in U.S. legal history.