Early Federal Cases on Chinese Birthright Citizenship

2025, by Charles J. McClain ©

Introduction

            The Fourteenth Amendment, added to the Constitution in 1868, states in its first clause, that “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.” The United States v. Wong Kim Ark, a United States Supreme Court case decided in 1898, affirmed that the clause applied to persons of Chinese ancestry born in this country. The decision was of great importance to the Chinese immigrant community, as the 1882 Chinese exclusion legislation made Chinese ineligible to acquire citizenship through the naturalization process. The case also gave the Supreme Court occasion to comment at length and more generally on the meaning of the amendment’s birthright citizenship clause. It is rightly viewed as a landmark in American legal history.  A great deal has been written about the Supreme Court case, little about the interesting federal cases on Chinese birthright citizenship that preceded it, cases that constitute, in a sense, Wong Kim Ark’s prehistory. This article focuses on those cases and the events leading up to the Supreme Court decision, with some comment at the end on the U.S. Supreme Court decision itself.  

   Wong Kim Ark’s First Visit to China and the First Federal Cases

        Wong Kim Ark was born in San Francisco in 1873, the son of a Chinese merchant. In early 1890 he left for a visit to China, intending to return. At this time it was risky for Chinese to leave the United States if they wished to return to this country. An 1888 amendment to the Chinese exclusion legislation prohibited Chinese laborers from entering the United States even if under the terms of treaty and previous legislation they had the right to return, and local governmental officials had great discretion in determining who was and who was not a laborer.  But when Wong Kim Ark left he must have been confident that he would have no difficulty reentering the United States. Prior to his departure four lower level federal courts had ruled that Chinese born in the United States were US citizens and he had ample proof of his birth in this country. It is to these cases that we now turn. 

The first and most important of these was In re Look Tin Sing (1884).  Look Tin Sing was born in Mendocino, California in 1870, the son of a Chinese merchant resident in that city for many years. He left for China in 1879 and upon his return to San Francisco in 1884  was refused entry on the grounds that he was a laborer and lacked papers  that would have permitted him to land.^[1]  Using the writ of habeas corpus, he sought relief in the United States Circuit Court in San Francisco on the grounds that he was an American citizen by virtue of the Fourteenth Amendment and, as such, had every right to enter the United States.  Supreme Court Justice Stephen Field, sitting here as a Circuit Court judge and joined in the opinion by the three other judges on the panel,  agreed and ordered him admitted.^[2]  Field looked first to the language of the Amendment, which he declared  was sufficiently broad to cover Look Tin Sing’s case, the only possible stumbling block being the phrase “subject to the jurisdiction”. But, according to Field, the phrase simply meant that Look Tin Sing, upon birth was under the protection of American laws and, upon reaching maturity, was under an obligation to obey them. The words excluded from citizenship the children of diplomats, who, though physically here, by a legal fiction were considered to be resident of their home countries. They were also intended to exclude American citizens who exercised the right to renounce their citizenship, a right Field said, that had always been recognized in American law. (The English common law doctrine of permanent allegiance to the country of one’s birth, Field declared, had never taken root here.)  Look Tin Sing did not fall into either of these categories. Quite independent of the Fourteenth Amendment, Field went on, it had always been American law that birth of a child on American soil conferred citizenship, “whatever the situation of his parents.”, at least when it came to whites.  In support of this proposition he cited a single case, the 1844 New York state court case of Lynch v. Clarke. There the New York court, after what Field characterized as elaborate consideration, had confirmed the American citizenship of a child born in New York City to foreign parents during their temporary residence in the city.  The purpose of the Fourteenth Amendment, Field said, was two-fold, first, to confirm the generally recognized American rule of the acquisition of citizenship by birth,  and second, to overrule the 1857 U.S. Supreme Court case of Dred Scott v. Sanford, which had held that African Americans, even those who were free, could never become American citizens, to bring them, so to speak, within the ambit of this generally recognized rule.

            Three other federal court decisions, handed down in 1888, two from Oregon, one from California, reached the same conclusion. The first Oregon cases, Ex parte Chin King, Ex parte Yung Sing Hee, decided by the federal circuit court in Portland in June, 1888, involved two women, the daughters of a Chinese merchant who had resided in that city for thirteen years and twelve before that in San Francisco. Upon their return to Portland from a trip abroad on a British ship, they were barred from landing and ordered held in custody aboard ship by the collector of customs on the ground that they lacked the return certificate that would have allowed them to land.^[3] They appealed to the court, alleging that they were born in the United States and by virtue of that fact were native born American citizens and entitled to land. Judge Matthew Deady agreed and ordered them released from custody. Hewing closely to Justice Field’s line of reasoning in Look Tin Sing, he ruled that a child born within the territorial jurisdiction of the United States was a citizen, “without reference to the political status or condition of its parents.” [emphasis added]. That he declared was the longstanding rule of the common law, which, he declared, had been incorporated into the Fourteenth Amendment. The attorney for the federal government had argued that the fact that the women had left the United States with no definite purpose of returning undermined their citizenship claim. But Deady thought this fact irrelevant. That was the situation of hundreds of the children of American citizens, he noted, who left the country each year for purposes of “nurture or education.” And Deady added a new twist to the argument. He thought that the action of the collector violated Article Four of the federal Constitution, which guaranteed to the citizens of a state the right to travel to or reside in any other state. The collector was in effect infringing on this right.  

            In re Yung Sing Hee, a decision handed down by the same Oregon court in October, again involved a Chinese female, the daughter of a Portland merchant. Yung Sing Hee returned to Portland in 1888 after a trip to China but was ordered detained aboard ship by the collector of customs on the grounds that she lacked the necessary papers that would allow her to land.   She filed a habeas corpus petition with the federal circuit court and at the hearing was able to produce testimony evidencing her birth in the United States. The testimony was that of her father, corroborated by the testimony of two Chinese merchants. The fact that all the witnesses were Chinese did not bother Deady at all. It was, he stated, reasonable and convincing and had stood up well to cross examination.  Both by virtue of the common law and the Fourteenth Amendment, Deady ruled, Yung Sing Hee was a native-born American citizen and had the same right to come and go as did other American citizens.  As an American citizen, Deady added, none of the exclusion acts could apply to her. If they were intended to apply to American citizens of Chinese extraction they constituted bills of attainder, barred by Article One of the Constitution. 

            In re Wy Shing, a case decided the following month by the federal court in San Francisco, deserves some special notice  inasmuch as Wy Shing, the subject of the case, was the son of a laborer, though one entitled to be in the United States. All previous cases had involved the children of merchants.  Wy Shing was born in San Francisco and was sent to China when he was six, in the care of the father’s brother. He returned to the United States without incident at a date not mentioned in the opinion.  He left on a second trip to China in 1885 but was denied entry on his return on the grounds that he was a laborer.  Circuit judge Lorenzo Sawyer ordered him admitted. In a brief opinion he stated that he saw nothing wrong with Field’s reasoning in Look Tin Sing and felt obliged to follow it. If Field were wrong, he observed, then thousands of the children of Caucasian parents born under similar circumstances, would be excluded from citizenship.

            Given the background of the four cases just discussed, it is not surprising that when Wong Kim Ark returned later in 1890 from his first trip to China he had no difficulty entering San Francisco. He had the law unequivocally on his side. And indeed he was allowed to land because he was, in the words of the collector of customs, “a native-born American citizen.” It was on his second visit to China that Wong Kim Ark encountered problems.

Wong Kim Ark’s Second Journey and the Origins of the Supreme Court case

            Wong Kim Ark left for China in 1894 on another temporary visit, but when he returned to San Francisco in 1895 problems arose. He was denied permission to land by the collector of customs and detained aboard ship on the grounds that he was a laborer and not an American citizen and could not enter the United States. He appealed to the federal court in San Francisco, which, not surprisingly, ordered him released from custody. The United States then appealed the decision to the U.S. Supreme Court. Clearly the federal government wanted an authoritative decision on the question of Chinese citizenship from the country’s highest tribunal. The case was submitted on an agreed statement of facts. Extensive briefs were submitted by both sides in 1896 and 1897, and in March, 1898, the court handed down its decision. By a 6-2 vote the court affirmed the San Francisco trial court ruling, with Justice Horace Gray writing the opinion for the court. Chief Justice Melville Fuller entered a dissent. 

The Supreme Court Opinions

            The majority and dissenting opinions in Wong Kim Ark are long and complex, running to fifty-three and twenty-seven pages, respectively, and any brief summary cannot do them full justice.  The main points of contention between them, however, are clear enough. Those were, first, whether the Fourteenth Amendment was merely declaratory of longstanding American law and, second whether the phrase “subject to the jurisdiction thereof” bore in negative fashion on the eligibility to citizenship of the children of Chinese immigrants.  

            It is worthy of note that Justice Gray’s majority opinion cites with approval all of the preceding lower federal court opinions discussed in this article and it echoes the main points made in those cases, though these points are developed at much greater length. He contended that the language of the Fourteenth Amendment had to be interpreted in light of the English common law, one of whose fundamental principles was that birth on English soil conferred English nationality. That, he argued, had  been the rule during the colonial period, when it applied to acquisition of British nationality, and after the Revolution, when it applied to American citizenship. He cited court cases, legal treatises and opinions from the executive branch in support of this proposition. One case cited was the New York case cited by Justice Field, Lynch v. Clarke, which had held that a child born to foreigners temporarily sojourning in the state was an American citizen. In the pre-Civil War period there had been no doubt, he declared, that the children of white persons born here were American citizens. The Fourteenth Amendment, whose main purpose was to affirm the citizenship of “free Negroes”, should be seen, he wrote, as declaratory of that  rule except that it brought all persons, regardless of color, within its boundaries. But what of the Chinese? The language of the amendment was broad, peremptory and explicit, he declared, and there was no evidence that the Chinese were excluded from its coverage. On the contrary, the very possibility of its application to the Chinese had been discussed and the prospect endorsed by a senator (from California, no less) during the Congressional debates on the proposed amendment. The various Chinese exclusion laws, said Gray, had no bearing on birthright citizenship, a thoroughly distinct question in his view. 

            The phrase “subject to the jurisdiction thereof” he interpreted as meaning subject to the legal authority of the United States.  Chinese persons born in the United States were as much subject to American authority as were their parents. The only purpose of the phrase, he contended, was to exclude the children of diplomats and of alien enemies. The Supreme Court, moreover, he declared, had already disposed of the question. Another clause in the Fourteenth Amendment stated that no state should deny to any person “within its jurisdiction” the equal protection of the law.  In the 1886 case, Yick Wo v. Hopkins, the court, in striking down a discriminatory laundry law, had unanimously ruled that this clause applied to the Chinese. What was the difference, he asked rhetorically between “subject to the jurisdiction” and “within the jurisdiction.” For all practical purposes they meant the same thing.           

            Chief Fuller dissented. The English common law rule regarding nationality by birth was an outcome of feudalism, he declared, and had no applicability here. He acknowledged that when the Constitution spoke of common law rights or used common law terms, the common law of England could be used as an aid in interpretation, but when the Constitution referred to what were essentially political rights it could not apply, and nationality was such a right. The Revolution, he stressed, constituted  a break with the English common law in fundamental ways.   He denied that mere birth within the territorial limits of the United States had ever been enough to confer citizenship and cited his own list of cases and treatises in support. But he reserved most of his opinion for discussion of the Amendment’s phrase “subject to the jurisdiction thereof”.  It meant, he said, to be completely subject to American jurisdiction, not owing allegiance to any other power, but under longstanding Chinese law Chinese nationals, wherever born, were held to owe permanent allegiance to the emperor. He also attached importance to the fact that under the exclusion laws and treaties with China, Chinese were barred from becoming naturalized American citizens. 

Conclusion

            Wong Kim Ark, though decided a century and a quarter ago, remains the case in which the Supreme Court elaborated at greatest length on the meaning of the Fourteenth Amendment’s birthright citizenship clause and must therefore be considered the leading case on the subject. The case has been generally viewed as standing for the proposition that any child born in this country, other than the child of diplomats, is a citizen by reason of birth, and the view of most legal scholars is that only an amendment to the Constitution can change that rule. Others contend that a constitutional amendment is not necessary and that either Congress or the President has the authority to effect changes.^[4]  Those arguing in favor of presidential or congressional authority note that the only question addressed and decided by the court in Wong Kim Ark, was, as the court stated, whether a child born in the United States of Chinese parents who at the time of his birth were domiciled here and were here carrying on a business was a birthright citizen, and they contend that the decision did not go beyond that class of persons. But, as others have pointed out, the reasoning of the court that led it to its holding was general in scope, nothing in it suggesting that the court intended to limit that holding only to the Chinese children of domiciled merchants. Rather, to judge from his language, Justice Gray seems to have been of the opinion that birthright citizenship had broad and extensive application.(The court’s favorable citation of Lynch v. Clarke, the New York case confirming birthright citizenship for a child born to foreigners passing through New York City, seems significant in this respect.) A full discussion of this question is beyond the scope of this article, but whatever conclusion one reaches, one thing can be said for certain. The U.S. Supreme Court case of United States v. Wong Kim Ark is yet again evidence of the large role that Chinese immigrants have played in the unfolding of American legal history. 

[1]. In 1884 Chinese laborers, upon presentation of papers documenting previous residence in the United States, were permitted to land. That would change with passage of the 1888 exclusion law, which barred all Chinese laborers, even those with previous residence, from entering the United States.

[2]. At the time U.S. Supreme Court justices had the duty to periodically travel to assigned regions of the country and to there join lower federal court judges in the hearing of cases. Three circuit court judges joined Field in his opinion.  The writ of habeas corpus brings before the court a challenge to the legality of one’s detention.

[3]. After passage of the draconian 1888 law, Chinese non-laborers could enter the United States upon presentation of certain papers, authenticating their status. 

[4].  President Trump has issued an executive order, denying birthright citizenship to children born here to parents who had entered the United States illegally or who were here only temporarily. The order has been ruled invalid by a federal court. The U.S. Supreme Court has agreed to review the lower court ruling and a decision can likely be expected during its next term. scheduled the case for oral argument .

by editor: Charles J McClain holds a Ph.D (history) from Stanford university and a JD from University of California, Hastings College of Law. He is currently Vice Chair (emeritus) of the Jurisprudence and Social Policy Program and a Lecturer in Residence at the School of Law, UC Berkeley. An eminent legal historian, he has published widely in the field of American legal history, with some special emphasis on the legal history of the nineteenth -century Chinese immigration to America.