page_title: United States v. Wong Kim Ark
section_title: Dissent
hierarchical_section_title: United States v. Wong Kim Ark / Opinion of the Court / Dissent
caption_attribution_description: English: Melville Fuller, Chief Justice of the United States 1888–1910
context_page_description: United States v. Wong Kim Ark, 169 U.S. 649, was a landmark decision of the US Supreme Court ruling that "a child born in the United States, of parents of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China", automatically became a U.S. citizen at birth. This decision established an important precedent in its interpretation of the Citizenship Clause of the Fourteenth Amendment to the Constitution.
  Wong Kim Ark, who was born in San Francisco in 1873, had been denied re-entry to the United States after a trip abroad, under a law restricting Chinese immigration and prohibiting immigrants from China from becoming naturalized U.S. citizens. He challenged the government's refusal to recognize his citizenship, and the Supreme Court ruled in his favor, holding that the citizenship language in the Fourteenth Amendment encompassed the circumstances of his birth and could not be limited in its effect by an act of Congress.
context_section_description: Chief Justice Melville Fuller was joined by Associate Justice John Harlan in a dissent which, "for the most part, may be said to be predicated upon the recognition of the international law doctrine". The dissenters argued that the history of U.S. citizenship law had broken with English common law tradition after independence—citing as an example the embracing in the U.S. of the right of expatriation (giving up of one's native citizenship) and the rejection of the contrary British doctrine of perpetual allegiance. The dissenters argued that the principle of jus sanguinis (that is, the concept of a child inheriting his or her father's citizenship by descent regardless of birthplace) had been more pervasive in U.S. legal history since independence. Based on an assessment of U.S. and Chinese treaty and naturalization law, the dissenters claimed that "the children of Chinese born in this country do not, ipso facto, become citizens of the United States unless the fourteenth amendment overrides both treaty and statute."
  Pointing to the language of the Civil Rights Act of 1866, an act of Congress which declared to be citizens "all persons born in the United States and not subject to any foreign power, excluding Indians not taxed", and which was enacted into law only two months before the Fourteenth Amendment was proposed by Congress, the dissenters argued that "it is not open to reasonable doubt that the words 'subject to the jurisdiction thereof,' in the amendment, were used as synonymous with the words 'and not subject to any foreign power'". In the dissenters' view, excessive reliance on jus soli (birthplace) as the principal determiner of citizenship would lead to an untenable state of affairs in which "the children of foreigners, happening to be born to them while passing through the country, whether of royal parentage or not, or whether of the Mongolian, Malay or other race, were eligible to the presidency, while children of our citizens, born abroad, were not."
  The dissenters acknowledged that other children of foreigners—including former slaves—had, over the years, acquired U.S. citizenship through birth on U.S. soil. But they still saw a difference between those people and U.S.-born individuals of Chinese ancestry, because of strong cultural traditions discouraging Chinese immigrants from assimilating into mainstream American society, Chinese laws of the time which made renouncing allegiance to the Chinese emperor a capital crime, and the provisions of the Chinese Exclusion Act making Chinese immigrants already in the United States ineligible for citizenship. The question for the dissenters was "not whether [Wong Kim Ark] was born in the U.S. or subject to the jurisdiction thereof ... but whether his or her parents have the ability, under U.S. or foreign law, statutory or treaty-based, to become citizens of the U.S. themselves".
  In a lecture to a group of law students shortly before the decision was released, Harlan commented that the Chinese had long been excluded from American society "upon the idea that this is a race utterly foreign to us and never will assimilate with us." Without the exclusion legislation, Harlan stated his opinion that vast numbers of Chinese "would have rooted out the American population" in the western United States. Acknowledging the opposing view supporting citizenship for American-born Chinese, he said that "Of course, the argument on the other side is that the very words of the constitution embrace such a case."  Commenting on the Wong Kim Ark case shortly after the issuance of the Court's ruling in 1898, San Francisco attorney Marshall B. Woodworth wrote that "the error the dissent apparently falls into is that it does not recognize that the United States, as a sovereign power, has the right to adopt any rule of citizenship it may see fit and that the rule of international law does not furnish [by its own force] the sole and exclusive test of citizenship of the United States".
caption: Chief Justice Melville Fuller wrote the dissent in the Wong Kim Ark case.
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