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The Museum of Chinese in America (MOCA) cordially invites you to a special conversation featuring Thomas Lee, Leitner Family Professor of International Law and Co-Director of the Center on Asian Americans and the Law at Fordham Law School.

In this timely discussion, Professor Lee will explore the landmark Supreme Court case of Wong Kim Ark and the principle of birthright citizenship. The presentation will specifically address the aftermath of this pivotal ruling, highlighting the experiences of Wong Kim Ark’s descendants and other Chinese immigrants who sought entry into the United States by asserting U.S. citizenship during the era of the Exclusion Acts. Professor Lee will offer insights into how these significant legal precedents continue to influence American identity, civil rights, and immigration policy today.

MOCA thanks Barclay Damon LLP, Distinguished Sponsor for this presentation of MOCA TALKS.

About Professor Thomas Lee
Thomas Lee is the Leitner Family Professor of International Law and Co-Director of the Center on Asian Americans and the Law at Fordham Law School.  He has written many articles about U.S. constitutional law, international law, and legal history. Before joining the academy, Lee clerked for Chief Judge Michael Boudin of the U.S. Court of Appeals for the First Circuit and Justice David Souter of the U.S. Supreme Court and served as an active-duty U.S. naval cryptology officer. In addition to his teaching and scholarship, Lee is an active litigator with Hughes Hubbard & Reed and has served as Special Counsel to the General Counsel of the U.S. Department of Defense.

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Full Recording Transcript

The Constitutional and Historical Context of Birthright Citizenship

The Constitution was signed in Philadelphia, and it also happens to be Justice David Souter’s birthday—he passed away in May. It’s been a weird Constitution Day for me. This morning, I was in Washington D.C. at the Heritage Foundation, where they published a guide on the Constitution and collected about 200 essays. I contributed one on the Admiralty Clause. I took the train up and now I’m at the Museum of Chinese in America to talk about Wong Kim Ark.

It’s a complicated case and a complicated issue, but I’ll try to explain it to a non-legal audience to show why it’s so important. The framing is relevant because we have a Supreme Court that is originalist in its constitutional interpretation. Five justices are clearly originalist, and Chief Justice Roberts, who appreciates history, values precedent more than the other five.

For the Supreme Court to decide the constitutionality of the executive order regarding birthright citizenship, it’s crucial to understand the context of the Citizenship Clause’s enactment and the Wong Kim Ark case. There’s a lot of history to cover, and my prediction is that the Supreme Court will decide the case by June 2026. I’m going to set up the executive order and the case to help you understand what’s happening.

The crucial provision is the Citizenship Clause of the 14th Amendment, Section 1, Clause 1. It 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”. The critical language is “subject to the jurisdiction thereof”.

The crux of the debate is that no one knows for sure what that means. The majority view is that it simply means being subject to the territorial jurisdiction of the United States. The minority view, however, says that it implies a greater degree of political allegiance.

On January 20th, President Trump issued an executive order that interpreted the Citizenship Clause to allow the executive branch to deny citizenship to children born in the United States whose fathers are not U.S. citizens or green card holders and whose mothers are unlawfully or temporarily present. Unlawfully present means they entered without approval from U.S. federal immigration authorities, and temporarily means they were here on a tourist visa, or perhaps overstayed.

The puzzle is whether these two categories of people, who were clearly born in the U.S., fit within the understanding of “subject to the jurisdiction” as the words were understood in 1868, since we have an originalist court.

Before discussing Wong Kim Ark, I want to go over some pre-history. One of the museum’s exhibits talks about the legislation passed with respect to Chinese people. The first was the Act to Prohibit the Coolie Trade of 1862, which was passed during the Civil War due to the fear that Chinese “coolies,” or coerced indentured laborers, would be brought in to substitute for plantation labor. Next was the Page Act of 1875, which excluded Chinese women and coerced laborers. Part of the reason behind the Page Act was the perception that Chinese women were sex workers, but also a real desire to prevent Chinese people from settling in the United States.

The third and most famous act was the Chinese Exclusion Act, which was actually called “An act to Execute Certain Treaty Stipulations Relating to the Chinese”. It was titled this way because of a legal debate over whether a statute could violate the Burlingame Treaty, which at the time allowed free travel between the U.S. and China. This act blocked laborers who were not in the U.S. at the time of its enactment. To prove you were in the country, you had to have a certificate of residence. The act did not apply to merchants, students, teachers, or tourists.

The Scott Act of 1888 prohibited reentry, and the Geary Act further tightened the exclusion laws. The Exclusion Act of 1902 made the exclusion of Chinese laborers permanent, and it wasn’t repealed until 1943, when China became an ally of the U.S. during World War II.

By the time Wong Kim Ark was decided in 1898, the number of Chinese people in the United States was relatively small and had been decreasing due to the exclusion acts. Historians estimate that the population of Chinese Americans was about 120,000, and only 10% or 11% were born in the U.S.. This means that only a few thousand people were in Wong Kim Ark’s situation, so the case involved a very small population.

 

The Wong Kim Ark Case and its Legacy

Wong Kim Ark was born in San Francisco, California, in either 1872 or 1873 to parents who had come from China. He went back to China twice, in 1890 and 1894, and was denied reentry when he returned in 1894. He claimed that he didn’t need a certificate of reentry because he was a U.S. citizen by birth, relying on the Citizenship Clause.

His parents had not naturalized to become U.S. citizens because, at the time, the naturalization statute required them to be a “free white person or a person of African ancestry or descent”. The Supreme Court presented the question as follows: “whether 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 domicile and residence in the United States…becomes at the time of his birth a citizen of the United States by virtue of the Citizenship Clause”.

The Supreme Court answered the question with a “yes,” citing the English common law tradition that if you were born in the territory of the British crown, you were a subject of the British Empire. The decision, however, leaves some ambiguity regarding its application to the current executive order.

The first point of ambiguity is the status of people who are in the U.S. temporarily. Domicile means you live somewhere with the intention of making it your home, so a temporary visitor would not have domicile. Another question is whether the ruling applies to people who entered the country unlawfully. Wong Kim Ark’s parents had a lawful domicile and residence in California, so one could argue that the case doesn’t apply to those who entered illegally. A hardcore originalist, like Justice Thomas, would argue that the Wong Kim Ark opinion doesn’t matter because the court should only care about the original meaning of the Citizenship Clause in 1868. However, because the decision was so close to the ratification of the clause, it could hold more weight.

A lot of people think of the Wong Kim Ark holding as a triumphant pro-citizen narrative, but the court’s opinion notes that if they had ruled the other way, it would deny citizenship to thousands of people of English, Scotch, Irish, German, or other European parentage. At the time, there were 1.6 million Irish people and almost half a million Italians in the U.S., compared to 119,000 Chinese people. The holding had a much greater impact on Europeans than on the handful of Chinese people in the country.

The decision was, in some sense, a pyrrhic victory for Chinese Americans because it didn’t say the exclusion acts were unconstitutional or change the naturalization statute that limited citizenship to free white people and people of African descent. It implicitly recognized race-based restrictions on exclusion and naturalization.

There was a lot of suspicion that many Chinese immigrants had entered the U.S. with fake papers or had purchased them. From 1957 to 1965, the Chinese Confession Program allowed Chinese immigrants to confess to having entered the country fraudulently in order to obtain legal status. During that period, over 11,000 people confessed to having entered unlawfully. While this demonstrates a history of unlawful entry, I haven’t seen any instances where the government tried to deny citizenship to children of people who had entered unlawfully. This suggests that at the time, people understood that if you had made a home in the country and had a child, the child automatically obtained citizenship, regardless of how the parents arrived.

The case of a temporary visitor is more interesting, and my research is still ongoing. There is a case involving an Irish niece of an American uncle who died without an heir. At the time of her birth, her father had considered living in the U.S. but then gave up on the idea after she was born. This case would seem to suggest that even if a person is here temporarily, their child can gain citizenship.

Ironically, given the anti-Chinese sentiment in 1868, I think there’s a good argument that the original intent of the Citizenship Clause was not to include Chinese people who might have children and then go back to China. The United States is an outlier in terms of granting citizenship solely based on birth in the country, especially for children who are only here for a short period of time.

Wong Kim Ark himself stayed in the U.S., had sons, and was sometimes hassled by border inspectors in Texas who apparently hadn’t heard of the Supreme Court case. His sons, born in China, were also entitled to derivative citizenship, which led to a lot of litigation and the suspicion of counterfeit papers.

It is remarkable how important this history is and how understanding it correctly has immense takeaways for current constitutional litigation at the Supreme Court.

 

The Current State of Birthright Citizenship

There are seven different lawsuits regarding the executive order on birthright citizenship. In the case of Trump v. Costa, the Supreme Court did not rule on the merits, but it did say that one district court couldn’t issue an injunction stopping the government from enforcing the order everywhere. After that, a class-action lawsuit was filed and granted in New Hampshire. The First Circuit, which is the federal appellate court for Massachusetts, Rhode Island, New Hampshire, and Puerto Rico, has strongly indicated that they will strike down the executive order across the board for both unlawful and temporary residents. The Ninth Circuit, which covers the western states, also has a case where they have said the executive order is unconstitutional.

Regardless of what the lower courts say, it’s ultimately going to come down to what the Supreme Court decides. As a legal historian, I believe the evidence suggests that if a person has made a home in the U.S., it doesn’t matter if their parents came here unlawfully—the Citizenship Clause likely protects them. That part of the clause would probably be safe even from an originalist perspective.

However, when you’re convinced you’re correct, you may not think about your arguments critically enough, and you might lose against a court that doesn’t share your assumptions. It’s important to keep an open mind and be aware of the other side’s arguments.

I’m often asked about the statistics on how many people born in the U.S. might not be citizens. If you include the undocumented category, we’re talking about at least a couple of million people. The number of so-called “birth tourism” cases is much smaller, maybe 30,000 to 40,000.

When it comes to the “at home” test, there are a lot of complexities. For example, a foreign graduate student here on a visa for three years may have a child. Technically, they are here on a student status, but they may want to stay permanently, which introduces a lot of subjectivity about their intent. My view is that if you’re a foreign graduate student in that situation, you likely do have the requisite intent. The idea of saying you’re only a citizen if your parents are citizens requires too much allegiance.

The counter-interpretation of “subject to the jurisdiction thereof” is that it just means you are under the sovereign control of the U.S.. Even if you’re here in an undocumented status, you’re subject to the laws and can be put in jail. So that interpretation would say that even if you’re undocumented, you’re subject to the jurisdiction.

The government is arguing that the 14th Amendment was purely intended for African Americans who were freed by the Civil War. While the words of the amendment don’t say that, that was the intent. The problem the Dred Scott case sought to answer was how to handle enslaved people who were taken to free states. In those cases, the concept of being “at home” was a big part of the puzzle.

When asked about the current administration and whether the judiciary can help moderate actions encouraged by people like Stephen Miller, I have two thoughts.

First, in California, there was litigation over the use of the National Guard to help ICE enforce immigration laws. Judge Breyer issued a thoughtful opinion saying that this was a violation of the 

Posse Comitatus Act, which says you can’t use the military for law enforcement. This act was passed because Southerners were sick of the Union using the military to help free Black people, so the ideological polarities have shifted. This is an instance where the courts have effectively said you can’t use the military for immigration law enforcement.

Second, regarding the Hyundai situation, where several hundred Koreans who were sent here to build a factory were hauled in, there is very little you can do. If people violate their visas, the government has a right to detain them. Legal claims could arise if they were detained under harsh conditions, but the news reports don’t seem to indicate that the conditions were severe enough to ground a legal claim.

Judge Chin and I set up our center to educate people on these issues because a lot of Asian Americans feel that they are being targeted. We teach a case involving Filipino nurses who were subjected to extremely difficult working conditions and were charged with criminal offenses for leaving their shifts. This raises the question of whether this would have happened if they weren’t Asian. It’s hard to conclude one way or the other, but it is troubling.

The Supreme Court has never said it’s illegal to discriminate on the basis of race or national origin in immigration policies. In fact, old case law is still extremely permissive of discrimination. Unlike in the 1890s, Asian Americans now have a political voice, so it is less likely that discriminatory laws would be passed. However, the government still has a lot of discretion in this area. As a historian, it’s interesting to see how even when Asians win a case, like Wong Kim Ark, it’s not really they who won; it was all the European immigrants who benefited.

The Chinese community resisted and hired really good lawyers, and they put a lot of money into winning these cases. This is a problem now, as many people feel intimidated by the current administration and are less willing to fund legal challenges.

The Europeans in the Wong Kim Ark case were mostly here as immigrants, and their children, if the case had gone the other way, would not have been U.S. citizens. This would have created problems because European countries were claiming them as their own nationals and even prosecuting them for things like treason if they supported independence movements. By ruling the way it did, the Supreme Court was making a statement that these people were U.S. citizens and the U.S. was claiming them. The U.S. also needed labor for its economy, but it just didn’t want Chinese labor.

Wong Kim Ark has lasted until now because we’ve never had a political administration willing to take on the issue. The language in the Citizenship Clause is pretty clear, and the case’s finding that “subject to the jurisdiction” just means subject to the sovereign control of the U.S. is a strong position. During the Reagan years, many Republicans were pro-immigration and believed in the free movement of labor and capital. The Republican Party has since become completely anti-immigration, and the current administration has the political will to push the issue.

The problem is that we’ve gone from one extreme to the other on immigration, and we’ve lost the ability to pursue centrist policies. This is a symptom of what’s happening in the country on a range of issues—you have to be on one extreme or the other