Wong Kim Ark

If there’s one thing that is settled law in this country, it’s birthright citizenship. But maybe settled law just doesn’t exist anymore. As I often state to my students when discussing the 14th Amendment, the only thing that actually matters is the opinion of nine political hacks wearing black robes, and to a lesser extent, elected politicians. But still, to overturn Wong Kim Ark would be an enormous counterrevolution of everything that has ever been good about this nation. I doubt Roberts and Barrett would go this far, I don’t know about Kavanaugh. I have zero confidence in Alito, Thomas, or Gorsuch. It will be too close in any case when the inevitable lawsuit happens immediately after Trump issues an executive order to end the practice.

In any case, if you need a primer on Wong Kim Ark, this is a good one:

In 1898, Bay Area-born Wong Kim Ark successfully defended his claim to being a U.S. citizen in the Supreme Court after officials claimed that his parents being Chinese nationals at the time of his birth disqualified him from being an American citizen. For the Bay Area’s Chinese community, who quickly mobilized to defend Wong, the case represented a major victory at a time when anti-Chinese sentiment and xenophobia were rampant across the country.

To this day, legal experts say the case remains the strongest shield against any Trump executive order that tries to undermine birthright citizenship.

In the 1870s, San Francisco was transitioning from a Gold Rush boomtown to an established American metropolis — largely thanks to the labor of tens of thousands of immigrant workers from all over the world. Two of these immigrants were Wee Lee and her husband Wong Si Ping, who came from China and gave birth to a son, Wong Kim Ark, in their home located above their shop on Sacramento Street in the heart of San Francisco’s Chinatown.

As an adult, Wong traveled back and forth between California and his family’s village in southern China. On one of these trips to China, he met and married his wife, who stayed behind with their children, while Wong returned to California, where he worked as a cook.

But on his return to the U.S. from a trip to China in 1896, Wong was detained by customs officials in San Francisco, who blocked him from reentering the U.S. and insisted that he was not an American citizen but rather a Chinese national — a group who at the time faced intense immigration restrictions thanks to the Chinese Exclusion Act of 1882. Officials told Wong that his citizenship depended not on where he was born but rather on the nationality of his parents.

Wong was in a complicated situation, said David Lei, a community historian and board member of the San Francisco-based Chinese Historical Society of America.

“He was a cook. He was in his early 20s. No money — he was really a nobody,” Lei said.

…

In its legal argument, the U.S. government insisted that at the time of Wong’s birth, his parents — despite being merchants and not diplomats — were subjects to the Emperor of China and not the jurisdiction of the U.S. government. However, after a two-year legal battle, the Supreme Court ruled in favor of Wong Kim Ark in 1898, affirming his status as an American citizen, along with all the rights that came with it.

“The amendment, in clear words and in manifest intent, includes the children born within the territory of the United States of all other persons, of whatever race or color, domiciled within the United States,” wrote Justice Horace Gray in the majority opinion. He noted that if citizenship was denied to the children of parents that were citizens of other countries, that would in turn “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.”

Let’s be clear too, this was the most racist Court in American history. This was the same court as Plessy, not to mention so many other less famous racist cases that targeted every non-white population in the United States. So to come to this conclusion in Wong Kim Ark was testimony to how clear the issue was.

Will this Court be worse than the Fuller Court?

It’s entirely possible.