The Supreme Court Should Overturn Wong Kim Ark

The Supreme Court’s decision to hear challenges to President Donald Trump’s executive order ending birthright citizenship has triggered predictable outrage from the left, which insists the Constitution “plainly” guarantees citizenship to anyone born on U.S. soil. They cite more than half a century of practice and supposed precedent, in particular the 1898 case United States v. Wong Kim Ark.

But the Supreme Court has never been bound to preserve a decision simply because it is old, especially when that decision is wrong.

Wong Kim Ark did more than just misinterpret the 14th Amendment. It effectively rewrote the citizenship clause of the 14th Amendment according to English feudal principles that the founders — and framers — rejected. In doing so, the court created a doctrine that the amendment’s authors surely never intended.

The Supreme Court now has the chance to correct that mistake.

Wong Kim Ark was born in 1873 in San Francisco to Chinese parents who were subjects of the Emperor of China but were “domiciled residents” at the time of his birth. After visiting China as an adult, Ark was denied entry into the United States on the grounds that he was not a citizen.

The question before the court was whether a child born to “subjects of the Emperor of China, [who] have a permanent domicile and residence in the United States … becomes at the time of his birth a citizen of the United States.”

A 6-2 majority, led by Justice Horace Gray, said yes. But the reasoning that got the majority to its decision is indefensible. Gray based his entire opinion on the idea that the 14th Amendment must be understood in terms of English common law.

“In this as in other respects, it must be interpreted in the light of the common law, the principles and history of which were familiarly known to the framers of the Constitution,” Gray reasoned. “The language of the Constitution, as has been well said, could not be understood without reference to the common law.”

Gray further argued that “the Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens.”

But as scholar Edward Erler argued in his book United States in Crisis: Citizenship, Immigration, and the Nation State, the phrase “‘subject to the jurisdiction’ is alien to the common law.”

Erler also explains that English common law historically based membership in the king’s dominion on allegiance, but the “framers of the Citizenship Clause intentionally avoided using the word ‘allegiance’ in the clause because they wanted to dispel any idea that citizenship derived from the common law.”

“Thus, Justice Gray’s argument in Wong Kim Ark — that the plain language must yield a common law result — is demonstrably wrong; it was intended to yield the opposite result. The express intention … was to avoid any possible inference that the Citizenship Clause derived any meaning from the common law.”

But Gray dismissed that intention outright. He even wrote that congressional debates were “not admissible” in interpreting the amendment — a bizarre claim given that the debates and statements of purpose are routinely used in interpreting amendments. “[T]he intention of the Congress which framed and the states which adopted this Amendment of the Constitution must be sought in the words of the Amendment; and the debates in Congress are not admissible as evidence to control the meaning of those words,” Gray wrote.

Gray only dismissed the framers’ debates because if he would have properly acknowledged them, he could have never reached the conclusion he did, as Erler points out. In short, Gray substituted English monarchical doctrine for the framers’ republican understanding of law and their own intentions.

The dissent in Wong Kim Ark also observed that such a reliance on common law was incorrect: “[W]hen the sovereignty of the Crown was thrown off and an independent government established, every rule of the common law and every statute of England obtaining in the Colonies in derogation of the principles on which the new government was founded was abrogated,” the minority argued.

In other words, the Revolution itself severed any claim that English feudal concepts governed American citizenship. Therefore, it is unreasonable that Gray’s entire decision is based upon a concept that was expressly rejected by the founders themselves when they created this country. (Notably, as Erler points out, the framers of the 14th Amendment saw themselves as finishing the work of the founders in regard to natural rights and natural law, and therefore they could not have been trying to resurrect the idea of English common law in the land.)

The dissent also argued that “the framers of the Constitution were familiar with the distinctions between the Roman law and the feudal law, between obligations based on territoriality and those based on the personal and invisible character of origin, and there is nothing to show that, in the matter of nationality, they intended to adhere to principles derived from regal government, which they had just assisted in overthrowing.”

Such an understanding wasn’t unique to the dissenters either. In the aftermath of the 14th Amendment’s ratification, Republican Rep. Frederick Woodbridge argued the doctrine of perpetual allegiance “is based upon the feudal system under which there were no free citizens … and the individual man [had] no personal rights; and it was from this source and system that Blackstone derived his idea of indefeasible and perpetual allegiance to the English Crown. … [But] the old feudal doctrine stated by Blackstone and adopted as part of the common law of England, that once a citizen by the accident of birth expatriation under any circumstances less than the consent of the sovereign is an impossibility. The doctrine … is not only at war with the theory of our institutions, but equally at war with every principle of justice and of sound public law.”

As Erler points out, “Thus, the general sense of the Congress in the wake of the passage of the Citizenship Clause of the Fourteenth Amendment was that the English common law was incompatible with the principles of the Founding.”

When this understanding (that is, a detachment from English common law) is coupled with the framers of the 14th Amendment’s explicit comments during the debate process — which Gray did not consider admissible evidence — it is unmistakable that Wong Kim Ark got it wrong.

Framers of the amendment, like Sen. Jacob Howard, were clear that the clause was “simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States.”

The “law of the land” was the 1866 Civil Rights Act, which specified “that all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, and hereby declared to be citizens of the United States.” As Erler points out, that means that Congress, just prior to ratifying the 14th Amendment and its citizenship clause, was “committed to the view that foreigners (and aliens) were not subject to birthright citizenship.”

The modern court has the chance to restore the original meaning of the 14th Amendment by overturning Wong Kim Ark and ending the judicially invented version of birthright citizenship.

Brianna Lyman is an elections correspondent at The Federalist. Brianna graduated from Fordham University with a degree in International Political Economy. Her work has been featured on Newsmax, Fox News, Fox Business and RealClearPolitics. Follow Brianna on X: @briannalyman2