The landmark legal case of Wong Kim Ark, and how Asian-Pacific Americans won the right to be Americans

By Frank H. Wu, Wayne State University Law School


Like most Americans, I have almost always taken my citizenship for granted. But like some Americans, I have had my citizenship challenged often enough to realize that I should care about its origins. Although I have always tried to assimilate as much as possible and could hardly have done otherwise, I have from time to time been disappointed that the efforts to conform are not enough for those who define membership in our democracy on the basis of race rather than principle.

I was born a citizen, but birth alone did not always confer citizenship. All of us who care about our civil rights should realize that we owe a measure of our shared equality to an individual named Wong Kim Ark.

In the 1920s, the Supreme Court confirmed that Japanese and Asian Indians were not “free white persons” and thus could not naturalize

More than a century ago in California, Wong took on the federal government in an effort to win his right to remain in his homeland. His legal case ended up in the Supreme Court. His victory shows how, despite recurring prejudice, our country can remain true to its ideals. It is worthwhile to reflect on our history, not to condemn the past by contemporary standards, but to understand how we came to where we are now. There are valuable lessons in these forgotten episodes.

In the middle of the nineteenth century, Chinese immigrants began to arrive here. They were recruited to work on Southern plantations as well as Eastern factories. On Southern plantations, they were touted as replacements for freed slaves. In Eastern factories, they were used as strikebreakers as unions based on ethnicity were starting to form. Famously, more than ten thousand of them helped build the transcontinental railroad. When they finished the job, they were not allowed to join the celebration at Promontory Point, Utah. Afterward, they were fired.

Remarkably, however, it was during the period of Chinese Exclusion that birthright citizenship emerged as a constitutional doctrine. In frontier towns such as San Francisco, Chinese laborers represented more than a quarter of the population. With an economic downturn, whites – many of whom themselves were recent arrivals to the United States – saw non-whites as competition in racial terms. Politicians began to agitate against them, shouting the rallying cry, “The Chinese Must Go!” Even progressive leaders such as Samuel Gompers, founder of the American Federation of Labor, argued that it was “meat or rice,” suggesting that Caucasians could not succeed against Asians and had no choice but to limit their entry.

In 1882, heeding warnings that Asians might overwhelm the West Coast or make it racially mixed, Congress passed the Chinese Exclusion Act. As the name of the bill suggested, it prohibited most people of Chinese descent from coming to this country with only limited exceptions. Later, Congress would extend the policy to create an Asiatic Barred Zone. In the 1920s, the Supreme Court confirmed that Japanese and Asian Indians were not “free white persons” and thus could not naturalize.

I believe that birthright citizenship guarantees our most basic right, to remain in the land of our origin. It signals both that we belong to the nation and that the nation belongs to us

After Exclusion, contrary to images of a submissive subculture isolated from the mainstream, Chinese communities engaged in civil disobedience in the best traditions of American liberty. Chinese who were already present when Exclusion passed were allowed to stay. They could sponsor their children as immigrants under an exception to the act. So they brought in “paper sons,” men who claimed falsely to be their descendants. Chinese communities also organized themselves to protest their exclusion through politics and lawsuits. The Wong case was only one example.

Wong Kim Ark had sued to be re-admitted to the birthplace, after taking a trip to China. He argued that by virtue of his birth on its soil he was a citizen of the United States, even though his parents were racially barred from achieving that status.

In opposing Wong, the federal government argued in its court briefs, “There certainly should be some honor and dignity in American citizenship that would be scarred from the foul and corrupting taint of a debasing alienage.” The Solicitor General asked, “Are Chinese children born in this country to share with the descendants of the patriots of the American Revolution to exalted qualification of being eligible to the Presidency of the nation?” He answered, “If so, then verily there has been a most degenerate departure from the patriotic ideals of our forefathers; and surely in that case American citizenship is not worth having.”

Rejecting these racial arguments, the Court based its ruling on the Fourteenth Amendment. That provision of the Constitution is familiar as the source of “equal protection of the laws.” The Court gave a literal interpretation to its opening lines, that “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.” By doing so, the Supreme Court united racial minority groups. For the Fourteenth Amendment had been passed to overturn the notorious 1857 Supreme Court decision in the Dred Scott case, which declared that blacks were not citizens. Thus, because African Americans were citizens, Asian immigrants could be citizens as well – and vice versa.

Abolishing birthright citizenship would ensure inherited privilege: an individual would be bound by the status of their parents

Today’s debate over birthright citizenship brings the connection full circle. Opponents of birthright citizenship have focused on Latino immigrants. They have said that Mexican women wait until they are about to go into labor, and then cross the border to have American children, supposedly to gain government entitlements. This spectacular racial stereotype is the symbolic sister to the “welfare queen” in the Eighties – the African American single woman who has children solely to obtain public benefits.

With anxieties about immigration, some demagogues have renewed calls for a racial vision of United States citizenship. They forthright in their claim that this is a white, Anglo-Saxon Protestant nation by heritage. Other writers have tried to pit communities of color against one another, suggesting that African Americans should oppose immigration, and immigrants should oppose affirmative action. Yet African Americans, Asian Americans, Latinos, and everyone else should see through Wong Kim Ark that the citizenship status we enjoy depends on the citizenship of others. Abolishing birthright citizenship would reinforce a caste system and inherited privilege: an individual would be bound by the status of her parents and those whose ancestors arrived earlier would have a stronger claim to the nation.

I believe that birthright citizenship guarantees our most basic right, to remain as equals in the land founded for liberty. The law signals both that we belong to the nation and that the nation belongs to us.