How to Fix the Immigration Mess

A widespread, but erroneous, misconception is that the Supreme Court’s decision in United States v. Wong Kim Ark (1898) authoritatively interprets the 14th Amendment as requiring birthright citizenship.

This is wrong on a number of levels. First, the Court has never ruled on the status of birthright citizenship—not in Wong Kim Ark nor anywhere else. Second, it could not do so “authoritatively” because to interpret the 14th Amendment as requiring birthright citizenship is inherently erroneous. Third, and most important for our present discussion, even the limited scope of that decision was wrongly decided.

The individual Wong Kim Ark was born on U.S. soil to Chinese parents who, by law and treaty, were not and could not become American citizens. The law was primarily the 1866 Civil Rights Act, which excluded from citizenship persons “subject to any foreign power.” The treaty was an agreement with the emperor of China not to admit to citizenship those of his subjects whom he permitted to leave his country and domicile in the United States in order to work.

Wong Kim Ark twice left the United States and traveled to China. On his second return to America, he was refused entry on the ground that he was not a U.S. citizen. He sued and eventually won his case. Read more…

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