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Friday, August 14, 2020

Wong Kim Ark Held That Children of Immigrants Were Natural Born Citizens

When Howard Wasserman and Ediberto Roman are right, they're right: Kamala Harris is a natural born citizen eligible to the presidency, and therefore to the vice presidency under the last sentence of the Twelfth Amendment. A fact perhaps not all students of the subject know: Presidential eligibility was specifically litigated in the Wong Kim Ark case, which held that the children of unnaturalized Chinese migrants born in the United States were U.S. citizens.  In the Supreme Court, the Department of Justice explained the importance of denying birthright citizenship to Chinese American children:

Are Chinese children born in this country to share with the descendants of the patriots of the American Revolution the exalted qualification of being eligible to the Presidency of the nation, conferred by the Constitution in recognition of the importance and dignity of citizenship by birth? 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.

Brief for the United States at 34, United States v. Wong Kim Ark, 169 U.S. 649 (1898) (No. 95-904), reprinted in 14 Landmark Briefs and Arguments of the United States Supreme Court: Constitutional Law 37 (Philip B. Kurland & Gerhard Casper eds., 1975).

Nevertheless, the Court found that American-born Chinese people were U.S. citizens.  Engaging in analysis which might fairly be called an example of Derrick Bell’s interest convergence thesis, the Court noted that a contrary conclusion “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.” 169 U.S. at 694. So Wong Kim Ark put children of non-white immigrants in the same boat as the children of White immigrants. 

Another possibility, which I suggest should be considered just as seriously and respectfully as other notions running around, is that because the Citizenship Clause of the Fourteenth Amendment made only "citizens" and not "natural born citizens," no one is eligible to be President who was born after the effective date of the Amendment, July 28, 1868.  The law, after all, I think all would agree, is the law, and must be scrupulously followed regardless of any personal preferences we may harbor.

Posted by Jack Chin on August 14, 2020 at 12:26 AM in Constitutional thoughts, Legal History | Permalink


And by the way, concerning number of years of residency (Kamala Harris) one may read here in "Excess of Democracy":


Posted by: El roam | Aug 14, 2020 8:52:46 AM

Important issue these days. Just worth to mention the dissenting opinion in Wong Kim Ark case:

According to Justice Fuller, the issue, lies on broader contexts. Allegiance, political context, and international law. All that, leads to clear conclusion, that born in the US, is not sufficient. But, being subjected to jurisdiction thereof. Being subject fully to jurisdiction of the US. Suppose, one diplomat:

He is subjected to the jurisdiction of the US, yet, not fully. He is yet faithful, to the sending state, his state of origin. So, the same with Chinese immigrants in that case, yet, having allegiance to the Chinese Emperor.

Beyond comparative historical analysis with the common law, and British crown, he refers even to the 14th amendment, stating, that this amendment, in relation to citizenship, is made to grant citizenship to black slaves. But, the latter, didn't ever have double loyalty in this regard. They have never been aliens in the US. I quote:

"By the thirteenth amendment of the constitution, slavery was prohibited. The main object of the opening sentence of the fourteenth amendment was to settle the question, upon which there had been a difference of opinion throughout the country and in this court, as to the citizenship of free negroes (Scott v. Sandford, 19 How. 393); and to put it beyond doubt that all persons, white or black, and whether formerly slaves or not, born or naturalized in the United States, and owing no allegiance to any alien power, should be citizens of the United States, and of the state in which they reside"


Posted by: El roam | Aug 14, 2020 8:47:36 AM

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