Birthright Citizenship: The SCOTUS case that solidified the 14th Amendment

Most of us know about birthright citizenship, but not many people have ever heard of Wong Kim Ark and the landmark Supreme Court decision that decided both his fate and the fate of a U. S. immigration policy that endures to this day. This is the case that solidified the Fourteenth Amendment as we understand it today. CLICK HERE: Visit our website to see all of our episodes, donate to the podcast, sign up for our newsletter, get free educational materials, and more! To see Civics 101 in book form, check out A User's Guide to Democracy: How America Works by Hannah McCarthy and Nick Capodice, featuring illustrations by Tom Toro. Check out our other weekly NHPR podcast, Outside/In - we think you'll love it! Learn more about your ad choices. Visit megaphone.fm/adchoices

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• 0:00Speaker 00

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• 1:32Nick Capodice?

  You're listening to Civics 101. I'm Nick Capodice. Today, we are revisiting a topic that is at top of mind right now, as on his first day in office, President Donald Trump has signed an executive order titled, quote, "Protecting the meaning and value of American citizenship," end quote. This order is designed to overturn the 14th Amendment to the Constitution, which guarantees birthright citizenship. The relevant part of the 14th Amendment, by the way, says, quote, "All persons born or naturalized in the United States and subject to the jurisdiction thereof,"

• 2:10Nick Capodice?

  Are citizens of the United States and of the state wherein they reside. Now, we will be doing an episode on executive orders. We're going to do another on birthright citizenship explicitly, and we're working on one about constitutional crises. So stay tuned for those. But today, we are looking back at a critical moment in the history of birthright citizenship. It is the landmark Supreme Court case from 1898 that cemented the interpretation of the 14th Amendment as we understand it today. The case also determined the fate of the man at its center, Wong Kim Ark. This episode was produced back in 2020 by Felix Poon, who is now a producer on the NHPR podcast Outside In.

• 2:55Nick Capodice?

  But at the time, he was an intern with us here on Civics 101. With all the developing news around this executive order, including the many, many lawsuits that have already been filed to stop it. I'm not going to say the exact number here because it's likely to have increased in the time between me saying these words and them getting to your ears. It seemed like a good time to replay this episode because it provides some understanding of the rights held by the people born in this country and how the Supreme Court has, at least in the past, affirmed those rights. So without further ado, here's the episode.

• 3:35Speaker 04

  Hi, Nick. Hi, Hannah.

• 3:37Hannah McCarthy?

  Hey, Felix.

• 3:37Nick Capodice?

  Hello, Felix. Listeners, if you don't know who this is, this is Felix Poon. Felix has been an intern with Civics for the last summer and has been a delight to work with. And we're very glad you're here today, Felix.

• 3:47Hannah McCarthy?

  Yeah, and Felix, you are going to guest host today, right?

• 3:49Speaker 04

  I am, because I've got a story for you.

• 3:52Hannah McCarthy?

  Ooh.

• 3:52Speaker 04

  And this story starts in 1895. A man named Wong Kim Ark is on a steamship returning to his hometown of San Francisco, the city where he was born. And when he lands, a customs agent says he can't enter the United States. He says, "You're Chinese, and there's a Chinese exclusion law, so you can't come in."

• 4:14Hannah McCarthy?

  But you said it was his hometown of San Francisco, right? So are you saying that someone born on US soil was not allowed back into the country?

• 4:22Speaker 04

  That's right. That's what I'm saying. And he wasn't the only one. This was actually pretty common at that time. Customs agents tried to keep as many Chinese-Americans out as they could. But some Chinese-Americans sued the US government to be granted entry. Wong Kim-ahk sued, and his case went all the way to the Supreme Court. And it's his case that solidifies birthright citizenship. Nowadays, pretty much everybody knows about birthright citizenship, which is anybody born in this country is a US citizen. And that's the law. But not many people have ever heard of Wong Kim-ahk and the landmark Supreme Court decision that decided his fate and the fate of US immigration policy that endures to this day.

• 5:06Speaker 04

  And that, my friends, is the story I'm going to tell you about today. I'm Felix Poon, and this is Civics 101, the podcast to refresh your course on the basics of how our democracy works. Today, the story of Wong Kim-ahk, the man, the landmark Supreme Court case, and the legacy of birthright citizenship. Before I tell you about Wong Kim-ahk, I need to tell you about the America that he was born into. Chinese immigrants began arriving in significant numbers in the 1850s. Many came for the gold rush in California. And when the gold rush ended, they found jobs as railroad workers, miners, farmhands, laundry owners, and domestics. But hostility towards them had been growing.

• 5:51Speaker 06

  In San Francisco, you have a labor organizer, Dennis Kearney, who was agitating that the Chinese were taking white jobs and running a Chinese must-go campaign.

• 6:06Speaker 04

  This is Carol Nakanoff, professor of political science at Swarthmore College and co-author of the forthcoming book, American by Birth: Wong Kim Ark and the Battle for Citizenship.

• 6:15Speaker 06

  In July of 1877, a mob formed and destroyed $100,000 in Chinese-owned property, burning laundries and leaving four dead.

• 6:27Speaker 04

  That's millions of dollars of damage in today's money. That's a lot. But more importantly, that's lost life and a lost sense of safety and belonging. And this racially motivated violence happened not just in San Francisco, but all along the West Coast, including Seattle, Tacoma, and Los Angeles, where more than half the victims were publicly lynched.

• 6:49Hannah McCarthy?

  That's horrifying. And I feel like this is a moment in American history that we really don't hear about, at least I didn't learn about in school. Did you, Nick? No, not at all.

• 6:58Speaker 04

  Yeah, I didn't even learn about it until college. And I was kind of shocked to hear about it, especially that, like, I'd never learned about it before. And this is when Congress began excluding Chinese immigrants. They passed the country's first immigration act, the Page Act, in 1875, barring Chinese women from entering the country. And then in 1882, the Chinese Exclusion Act barred all Chinese people from entering the country.

• 7:28Speaker 04

  So that's the hostile environment that Wong Kim Ark was born into around 1871 in San Francisco. He grew up in Chinatown. He was 5'7" tall. His father was Wong Seiping, and his mother was Lei Mei. His parents came to the US from Toisan, China. So public record listed them as merchants, but like, what does that actually mean?

• 7:48Speaker 06

  They ran a store. That's considered a merchant, which was in the city directory listed in 1879 and 1880 as a butcher and provisioner.

• 8:00Speaker 04

  Wong Kim Ark didn't have much formal education.

• 8:02Speaker 06

  From age 11, he was listed as a cook.

• 8:06Speaker 04

  And that's about all we know about his life in the US. There are records of four trips he took to China. The first was in 1889 with his parents. He gets married on this trip to a woman named Yi Shi from his ancestral town of Toisan. His second trip is in 1894 to 1895 to visit his wife and family. And it's coming back to San Francisco on the second trip that the customs agent says he can't enter the United States.

• 8:32Speaker 07

  And so he was detained. And he said, hey, I was born here. I'm a citizen. You have to let me in.

• 8:39Speaker 04

  This is Bethany Berger, professor of law at the University of Connecticut.

• 8:43Speaker 07

  Not only did he say that, he had papers with him to prove that. And the customs officer says, I don't care. Chinese cannot become citizens by being born in the United States.

• 8:57Speaker 04

  One of those papers is a notarized letter.

• 9:00Speaker 07

  We, the undersigned, do hereby certify that the said Wong Kim Ark is well-known to us.

• 9:04Speaker 04

  A witness statement.

• 9:05Speaker 06

  Anybody else traveling, a white American traveling abroad, didn't have to have anything in the way of documents.

• 9:15Speaker 04

  This is Carol Nakanoff again.

• 9:16Speaker 06

  And so the Chinese had a far more rigorous documentation regime than anybody else. They had to have witnesses that attested to where they lived and that they knew them.

• 9:31Speaker 04

  These witnesses couldn't be Chinese. They had to be white.

• 9:34Nick Capodice?

  Wait, was that written in? Was that a stipulation of it? Like, they had to be white?

• 9:39Speaker 04

  I don't think they said it was like a written requirement, like, you must make sure you get a white person. It was just kind of like an unspoken rule that they wouldn't trust Chinese people. And so it was just kind of like, they can't be Chinese. In practice, it was find a white person.

• 9:53Hannah McCarthy?

  Right.

• 9:54Speaker 06

  And they would go through an interview, get this certificate that allowed them to return, go and return. And it was a single-use document.

• 10:04Speaker 04

  Even with this documentation in hand, the customs agent denies Wong Kim Ark entry. And so basically, he has nowhere to go. So he gets back on the boat.

• 10:14Hannah McCarthy?

  Seriously? Did he have to go back to China?

• 10:17Speaker 04

  We'll get to that part. But first, I have to tell you about those who came before him and what happened to them. There are a lot of Chinese men traveling back and forth to visit family in China at this time, and many are getting denied reentry to the United States. Some of them just give up and make the trip back to China, a trip that takes 33 days, according to an old newspaper clipping. But others fought their detentions in court with the help of the Six Companies.

• 10:42Nick Capodice?

  Wait, the Six Companies, what's that?

• 10:43Speaker 04

  Well, companies is probably a misnomer. There are really six prominent Chinese associations in San Francisco, and they came together as one to provide social support, but also to provide legal support to Chinese-Americans. Here's Bethany Berger again.

• 11:00Speaker 07

  In the first years of the exclusion laws, they brought 7,000 cases challenging Chinese exclusion. And they were so successful in doing this that Congress and the customs officials kept trying to amend the laws to make it harder for them to win these cases.

• 11:23Hannah McCarthy?

  That's actually very cool.

• 11:28Speaker 04

  So the Six Companies are there for Wong Kim Ark. They file for habeas corpus.

• 11:32Nick Capodice?

  Habeas corpus, that little Latin phrase that means bring the unlawfully detained person before the court.

• 11:39Speaker 04

  Yep, that's it. It's a right to a trial. Meanwhile, Wong Kim Ark is still off the coast of San Francisco on a ship, and that ship is about to sail back to China.

• 11:49Speaker 07

  So he's put onto another ship, and then that ship wants to go back, and he's put onto another ship. And so this is a period of months in which he's confined, looking over at his hometown, but unable to set foot there.

• 12:06Nick Capodice?

  So is he granted habeas?

• 12:08Speaker 04

  They do grant him habeas. But what's interesting here is that the judge actually agrees in principle with the US government that Wong Kim Ark is not a citizen. But he says he has to go by legal precedent that was set by earlier court cases. And so he rules that Wong Kim Ark is a US citizen because of the citizenship clause of the 14th Amendment.

• 12:29Hannah McCarthy?

  So this judge makes explicitly clear that he has a racist idea here and that he is only making this decision based on precedents. He basically says, this is against my better judgment. But I'm going to do this anyway. And so just as a reminder, that citizenship clause 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." So Felix, Wong Kim Ark won.

• 13:04Speaker 04

  Yeah, he won.

• 13:05Nick Capodice?

  Woo!

• 13:06Speaker 04

  I mean, he was still unlawfully detained on three different boats for five months, but at least he won his court case.

• 13:20Nick Capodice?

  So is that it, Felix? Like, is this happily ever after for Wong Kim Ark?

• 13:24Speaker 04

  Um, no, not quite.

• 13:27Speaker 06

  The government immediately appeals, so they take it all the way up to the US Supreme Court.

• 13:33Speaker 04

  This is Julie Navkav. She's a professor of political science at the University at Albany and co-author with Carol on their book, American by Birth: Wong Kim Ark and the Battle for Citizenship.

• 13:43Speaker 06

  The majority opinion is written by Justice Horace Gray. And his response is that if people are in the United States and they're following the laws of the United States and basically they're not in some sort of special category like that of a diplomat, they are living under the sovereignty of the United States. And therefore, children who are born to them in the United States are born under that sovereign power. And therefore, according to common law principles, going back to England,

• 14:25Speaker 06

  they are entitled to citizenship on the basis of the 14th Amendment.

• 14:30Speaker 04

  In writing the majority opinion, Justice Gray did reaffirm that there are exceptions to the citizenship clause. Diplomats are not subject to the jurisdiction of the US. If they commit a crime, they don't face the justice system the same way that we do. So they're children that are born here, not US citizens. Children born here of a foreign occupying force? Hasn't happened yet, knock on wood. But if it did happen, not US citizens. So what the majority opinion boils down to is that Wong Kim Ark does not fall into any of these exempt categories, so he is indeed a US citizen.

• 15:05Nick Capodice?

  But hold on, if this case was decided the other way, wouldn't you then have to revoke the citizenship of millions of children born to European immigrants?

• 15:15Speaker 04

  I mean, basically, and Justice Gray wrote this in his opinion, that to deny Wong Kim Ark his citizenship would be to, quote, "deny citizenship to thousands of persons of English, Scotch, Irish, German, or other European parentage who have always been considered and treated as citizens of the United States." This ruling is a big deal. It solidifies a path to citizenship for all immigrants that is based on the 14th Amendment.

• 15:46Speaker 04

  But then, there were some unintended consequences in the aftermath of the ruling.

• 15:50Nick Capodice?

  Like what?

• 15:51Speaker 04

  So there's this phenomenon of "paper sons."

• 15:54Nick Capodice?

  Paper sons, I actually know about these. Do you, Hannah?

• 15:56Hannah McCarthy?

  I don't. I would imagine it's someone claiming someone as their son or daughter, but it would be son in this case.

• 16:04Nick Capodice?

  So since the only way you could be a legal Chinese immigrant to the United States was if you were a family member of somebody who had been born here, a child of somebody who had been born here, so you have all these people claiming...

• 16:15Hannah McCarthy?

  Right.

• 16:16Nick Capodice?

  So all new Chinese immigrants to the US are claiming that they are the children of people already here, on paper, therefore "paper sons."

• 16:23Speaker 06

  Some of these "paper sons" were maybe not necessarily the sons of citizens, but they were close relatives, maybe they were brothers, maybe they were nephews, but because there's an awareness among immigration officials that this is happening, they become far, far more suspicious. What evolves out of this is that you... Wind up with kind of a cat and mouse game between Chinese, who are trying to get into the United States, and immigration officials who are trying to keep as many out as possible.

• 17:01Speaker 04

  And exclusion laws only get worse.

• 17:03Speaker 06

  By the time we get to 1924, legislation is basically excluding almost all Asian immigration and denying immigrants from Asia any possibility of gaining citizenship. This actually goes as far in the 1920s as denying citizenship to Japanese who had served in World War I.

• 17:38Nick Capodice?

  Civics 101 is going to be right back after a quick break.

• 17:45Nick Capodice?

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• 18:30Nick Capodice?

  You can even track the progress on a dashboard. And for our listeners, we have an exclusive 60% off an annual Incogni plan. Just go to incogni.com/civics or use the code CIVICS at checkout. There's a link in the episode description. Remember, they can't harm you if they can't find you.

• 18:50Nick Capodice?

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• 21:12Speaker 07

  We have called the Congress here this afternoon not only to mark a very historic occasion, but to settle a very old issue that is in dispute.

• 21:22Speaker 04

  It's not until the Immigration and Nationality Act of 1965 that immigration bans and quotas are completely lifted.

• 21:29Speaker 07

  With my signature.

• 21:32Speaker 07

  This system is abolished.

• 21:34Speaker 04

  And finally, you have greater numbers of Asians immigrating to the US.

• 21:38Speaker 07

  It will never again shatter the gate to the American nation.

• 21:52Speaker 04

  Soon after that, public scrutiny over immigration shifts. And beginning around the 1980s, you have some people using the term "birthright citizenship" pejoratively against the children of undocumented Mexican-Americans. They call for doing away with birthright citizenship.

• 22:08Speaker 07

  ...limit immigration. President Trump is setting to challenge a 150-year-old constitutional standard that anyone born in America is an American citizen.

• 22:19Hannah McCarthy?

  But the president can't just unilaterally do away with something that was decided in the Supreme Court, right? I mean, the Wong Kim Mark ruling means that they can't just get rid of birthright citizenship.

• 22:31Speaker 04

  Well, some would argue that the Wong Kim Mark ruling doesn't apply here because Wong Kim Mark's parents were here legally while undocumented immigrants are here illegally.

• 22:41Nick Capodice?

  So what did the people you talked to think about that?

• 22:45Speaker 04

  They don't think this argument would be very convincing in court. Basically, they say that there was no distinction back then between documented and undocumented. If you made it to US shores, you were a citizen. But given the exclusion laws, it was clear the government wanted to exclude Chinese people from this country. So they're in consensus that the Wong Kim Mark ruling does apply. And therefore, the only way to do away with birthright citizenship is to amend the Constitution, which, by the way, is not an easy process. It would need to pass through both the House and the Senate with 2/3rds majorities, and then it needs to be approved by 3/4 of state legislatures. So birthright citizenship is probably here to stay. And our guests all agree that's a good thing.

• 23:30Speaker 04

  Here's Julie Novkov.

• 23:32Hannah McCarthy?

  Well, I think birthright citizenship is important simply because it provides an additional layer of protection for some of the most vulnerable residents of our country. And it also, I think, telegraphs a message of equality, of being born an American regardless of where you're coming from or what your situation is. There's a kind of moral valence to birthright citizenship that is entangled, in a productive and good way, with American ideals.

• 24:18Hannah McCarthy?

  Felix, I'm so curious. What happened in the end to Wong Kim Mark?

• 24:24Speaker 04

  Well, we don't really know much beyond his third and fourth trips to China to visit his family. Remember, his wife was back in China, and that fourth trip in 1931 was Wong Kim Mark's last. He didn't come back to the US. And we know that he died sometime in the 1940s.

• 24:41Nick Capodice?

  So do you know if, like, he died without ever knowing what his legacy was?

• 24:46Speaker 04

  That's a really good question, Nick. And I think the best person to answer that is Erica Lee. She's a professor of American history at the University of Minnesota. She said the reason why he wouldn't have known is because of his lived experience. Remember those notarized witness statements Wong Kim Mark had to get? Erica went to see the originals at the National Archives at San Francisco, and she saw that. By his third and fourth trips to China, the US government standardized them into a templated form.

• 25:13Speaker 07

  It was called "application of alleged American citizen of the Chinese race for pre-investigation of status." This is a government form. That means that someone typeset it, someone put it through the printer, someone ordered thousands of copies to be printed and then sent to immigration offices around the country. Having that that term, "alleged citizen," shows just how deeply rooted and institutionalized this racism was. So no matter if you won the Supreme Court case, on a daily basis, you're still going to be suspect. I also remember flipping through the file and wondering,

• 25:58Speaker 07

  "Where's the copy of the Supreme Court case? Like, shouldn't this be, like, in Monopoly? Shouldn't this be your get-out-of-jail-free card? Like, shouldn't he have just gotten, walked off the ship, "Hey, it's Wong Kim Mark, you know, come on in"? That didn't happen.

• 26:13Hannah McCarthy?

  Felix, this is something that we encounter a lot when it comes to people who win their Supreme Court cases in the names of civil rights. And that's that it just takes so long for whatever it is they've won to be implemented across the United States, right? That that person, ostensibly the beneficiary, isn't practically the beneficiary. They don't get to reap the reward of that decision. And it sounds like that's how it went down for Wong Kim Mark, right?

• 26:44Speaker 04

  Oh, definitely. But there is one last thing to this story. What this landmark ruling does do for Wong Kim Mark is that it allows his sons to immigrate to the US and become naturalized citizens. So guess what? Wong Kim Mark has descendants here in the US. And I just think that's amazing because the US government tried so hard to prevent Chinese immigrants from establishing families here. But here they are, the family of Wong Kim Mark.

• 27:10Hannah McCarthy?

  Felix, does this end up being this proud family story that gets passed down?

• 27:16Speaker 04

  Actually, no. Erica says nobody in the family really knew about it until 1998. There was a 100-year anniversary celebration in San Francisco, and Wong Kim Mark's youngest son just happened to see it reported in the Chinese-language newspaper.

• 27:29Speaker 07

  And this is where, for the first time, those of us who had... Researcher Juan Camarc realized that his son was still living in San Francisco. And that when the reporter interviewed him, he expressed a great deal of surprise, that he had never heard his father talk about his struggle. He had no recollection that this Supreme Court case and the right of birthright citizenship was based on his father's efforts.

• 28:12Speaker 07

  And it was just such a, I think, tragedy of how we choose which stories, which struggles get remembered and which ones we allow to get forgotten. It was a double tragedy, you know, not just for the Wong family, but for all of us who care about our country. One would think that when you win a Supreme Court case and that it establishes such a

• 28:50Speaker 07

  broad base of citizenship rights, the right of birthright citizenship, that your name would be well-known, celebrated, that there would be streets named after you, that there would be a statue, that there would be a way that every school child would know who this person was and the importance of his struggle for equality.

• 29:30Nick Capodice?

  I just want to say, I think it's interesting that the three of us are talking about learning or not learning about this in school, because we've been talking a lot about exclusion and the idea of like the Chinese Exclusion Act, but exclusion doesn't end in 1965. There's still this exclusion of what stories we tell and don't tell.

• 29:49Hannah McCarthy?

  I feel like after today, I have a much clearer sense of this time in American history. So thanks for sharing, Felix.

• 29:57Speaker 04

  Yeah, thank you for having me host today. It's been an honor to be able to tell you this story.

• 30:10Nick Capodice?

  This episode of Civics 101 was written and produced by Felix Poon, Hannah McCarthy, and me, Nick Capodice. Our executive producer is Rebecca Lavoy, our producer Marina Henke, and our senior producer Christina Phillips. Music in this episode from Blue Dot Sessions, Epidemic Sound, Sarah the Ill instrumentalist, Lobaloco, and The Tower of Light. Special thanks to our colleague and friend Taylor Quimby for his voiceover work in this episode. You can listen to more Civics 101, all of Civics 101, at our website civics101podcast.org. Civics 101 is a production of NHPR, New Hampshire Public Radio.

• 30:55Speaker 04

  This is Phil Bretisson, former Democratic governor of the state of Tennessee. If you love digging into how history shapes US policy, check out the new season of You Might Be Right. And this is Bill Haslam, former Republican governor. This season, we're asking the questions that have defined every pivotal moment in American political history. Is democracy really under threat, or is that just a story as old as the republic itself? We're tackling the biggest questions shaping the 2026 midterms, so join us.

• 31:21Speaker 00

  Follow You Might Be Right wherever you get your podcasts.