Wong Kim Ark: China's Revenge?
Kathy Knechtges’ luminous essay Forgotten Victims—American Workers Immiserated By Chinese Immigration In Nineteenth Century California has attracted a great deal of attention. Readers seem refreshed to see the matter discussed as a rational and reasonable response to a serious social problem, rather in the usual “Blame Whitey” tradition of Chinese chauvinism.So this is a good occasion to recall that a quite possibly nation-killing consequence of the 19th Century Cheap Labor Lobby’s Chinese labor binge was the 1898 Won Kim Ark case. This piece of Supreme Court judicial legislation has saddled America with Birthright Citizenship, Anchor Babies and Birth Tourism.
As Howard Sutherland recounted for us in his seminal piece Weigh Anchor! Enforce the Citizenship Clause
The first sentence of the 14th Amendment says:
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. [emphasis added]
This had been agreed even to exclude American Indians from citizenship because they were deemed the subjects of their tribes (a situation not changed until the Snyder Act of 1924).
However 30 years later the Supreme Court wanted to award citizenship to the son of non-citizen Chinese legal immigrants. So they simply wrote new law.
The majority opinion is a lengthy disquisition on the English Common Law understanding of citizenship and how it is acquired, and how those common law antecedents made their way into the laws of the United States…The majority gave short shrift to the intent of the Citizenship Clause's framers. They ignored the fact that, by putting the Citizenship Clause, qualified by the jurisdiction phrase, into the Constitution, the country had deliberately superseded the common law view. They preferred to read the jurisdiction phrase as applying to little more than the children of accredited diplomats.
The dissenting minority paid more attention to the Senate ratification debate… The dissenters also noted, correctly, that there is nothing in the wording of the Citizenship Clause or the Civil Rights Act of 1866 that limits the application of the "subject to the jurisdiction thereof/not subject to any foreign power" language only to diplomats or other accredited representatives of foreign governments. Similarly, there is no warrant in the Citizenship Clause for automatic extension of birthright citizenship to the children of aliens legally resident in the United States. They are subject to another jurisdiction: that of their parents' (and their own) native countries.
(The issue of granting of citizenship to the children of illegal immigrants has never reached the Supreme Court.)The best that can be said for the 1898 Supreme Court was that they were acting just out of class prejudice, registering a protest that these deplorable white peasants were reversing the Asian immivasion.
The wicked Arizona decision of last year – leaving the Federal Government unfettered freedom to choose not to enforce immigration law – was more likely motivated by a very different Supreme Court’s enthusiasm for electing a new people.