US v Wong Kim Ark

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United States v. Wong Kim Ark (1898): The Battle for Birthright
Citizenship in America
2401 words

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Introduction
Have you ever wondered why anyone born in the United States, regardless
of race, ethnicity, or sex, is automatically granted citizenship? Rest assured, this
idea did not always exist. If not for a man named Wong Kim Ark and his legal
journey, birthright citizenship might still be a foreign concept to our nation. While
there have been many well-known United States Supreme Court Cases that have
fundamentally changed the course of our nation’s history, such as Marbury v.
Madison (1803), Dred Scott v. Sandford (1857), and Brown v Board of Education
(1954), some cases, such as United States v. Wong Kim Ark (1898), are inarguably
just as essential and impactful but do not receive equal recognition among history
textbooks and courses. This essay will share relevant historical context and
background information on the United States v. Wong Kim Ark (1898) court case. It
will also detail the lasting influences of the Supreme Court’s landmark decision
and explain why this case deserves much greater recognition than it has received,
considering its profound impact on many generations of Americans.
Historical Context
The first wave of Chinese arriving in the United States primarily comprised
merchants, laborers, and students.1
Like immigrants from other nations, they
sought greater economic opportunities and a better future for their families.

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However, they were instantly treated like low-class individuals upon their arrival.
Anti-Chinese sentiment began to rise rapidly, and many Americans were
determined to oppress the Chinese socially and politically. Signs stating “NO
CHINESE NEED APPLY” were seen in shop windows throughout California.2
“The Chinese must go!” became a common rally cry during the 1870s.3
Feelings of
anti-Chinese sentiment culminated in the Chinese Exclusion Act of 1882, which
prohibited further Chinese immigration to the United States.4
The Chinese Exclusion Act was certainly not the only anti-Chinese
legislation Congress passed during this time. The Page Act of 1875 barred Asian
women suspected of prostitution from entering the country and attempted to
regulate contract labor from China.5
The Scott Act of 1888 prevented Chinese
laborers, even those who were American residents, from returning to the United
States.6
In 1892, Congress reinforced the Chinese Exclusion Act of 1882 by
passing the Geary Act, which not only attempted to shut down Chinese
immigration for the next decade but also targeted Chinese immigrants that were
already living in the United States.7
Wong Kim Ark
Wong Kim Ark was born in 1873 in San Francisco at 751 Sacramento
Street.8
At a young age, his parents took him to the Taishan Province in China,

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where he received three years of education. Ark returned to the United States at
age 11 and began working as a cook’s apprentice.9
In 1890, Ark accompanied his
parents across the Pacific and returned home without conflict.10
In 1894, he took off for China again to visit his family. For his return, he
prepared a photograph and a native-born affidavit signed by three witnesses.11
However, this time, he was detained upon reentry by the recently formed Bureau of
Immigration. The Bureau insisted that Ark was not a citizen of the United States
and therefore was "not entitled to land in the United States, or to be or remain
therein.”12
District Attorney Henry Foote believed Ark’s lack of education and
political affiliation with China overcame his claim to citizenship, which was solely
based on mere “accident of birth.”13
Fortunately for Ark, attorney Thomas Riordan, well-known for his work on
behalf of Chinese-Americans, came to the rescue.14
Riordan filed a habeas corpus
petition on behalf of Ark, in which he stated,
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, and are there carrying on
business, and are not employed in any diplomatic or official capacity under
the Emperor of China, becomes at the time of his birth a citizen of the
United States, by virtue of the first clause of the Fourteenth Amendment of
the Constitution.15
The petition was accepted into the Northern District of California’s federal
court, where District judge William Morrow sided with Ark, declaring:

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Wong Kim Ark is a citizen of the United States within the meaning of the
citizenship clause of the fourteenth amendment. He has not forfeited his
right to return to this country. His detention, therefore, is illegal. He should
be discharged, and it is so ordered.16
Ark was finally free. However, the United States government, recognizing
the significance and potential implications of the case, appealed Morrow’s
decision.17
The fate of Ark and millions of Americans now rested in the hands of
the Supreme Court.
United States v Wong Kim Ark (1898)
Representing the United States government were Solicitor General Holmes
Conrad, a former confederate, and George Collins, an attorney for the San
Francisco Bar Association.18
They argued that although birthright citizenship was
likely presumed, it was still a monarchical practice unfit for the United States
republican government.19
Both individuals also believed that from the moment
Wong Kim Ark was born, he immediately became a subject of the Emperor of
China by virtue of his parentage.20
Thus, Ark could not have been born “subject to
the jurisdiction” of the United States, and only Congress had the power to grant
him automatic citizenship by altering the naturalization process.21
Attorneys Thomas Riordan, Maxwell Evarts, and J.Hubley Ashton
represented Wong Kim Ark.22
Riordan, who represented Ark in the federal court,

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filed a quick brief, emphasizing that under common law, birth guaranteed
citizenship.23
Thus, since he viewed the 14th amendment as “only declaratory of
the common law rule,” Ark must be a citizen of the United States.24
Evarts and
Ashton, lawyers of the six companies, filed more sophisticated briefs on Ark’s
behalf. Evarts insisted that “every judicial decision directly upon the question in
controversy has been averse to the Government’s present position.”25
For Evarts,
common law was implied, and any interpretation otherwise, such as international
law, would be contrary to established precedent. Like Evarts, Ashton also
constructed his argument on English common law. Ashton argued that Solicitor
General Conrad’s interpretation of international law was unsuitable, as “the
relation of sovereign and subject or citizen is the creature of municipal law, and
international law does not purport to lay down principles or sanction specific
usages in that matter.”26
After hundreds of pages of written arguments and passionate oral arguments
from both parties, it was time for the Supreme Court to make a future-altering
decision.
Majority Opinion

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Associate Justice Horace Gray Jr. was assigned to write the majority opinion
for the court. Justice Gray began by listing the facts stipulated by both parties and
also confirmed the following:
It is conceded that, if he is a citizen of the United States, the acts of
Congress, known as the Chinese Exclusion Acts, prohibiting persons of the
Chinese race, and especially Chinese laborers, from coming into the United
States, do not and cannot apply to him.27
Justice Gray also analyzed the Constitution itself and its provisions for
citizenship.28
After a long address, he concluded that the language in the
Constitution or the 14th amendment did not address the meaning of “subject to the
jurisdiction thereof.” In that case, the proper approach, according to Justice Gray, is
to turn to English common law.29
He emphasized:
By the law of England for the last three centuries, beginning before the
settlement of this country, and continuing to the present day, aliens, while
residing in the dominions possessed by the Crown of England, were within
the allegiance, the obedience, the faith or loyalty, the protection, the power,
the jurisdiction, of the English Sovereign; and therefore every child born in
England of alien parents was a natural-born subject, unless the child of an
ambassador or other diplomatic agent of a foreign State, or of an alien
enemy in hostile occupation of the place where the child was born.30
Essentially, Justice Gray viewed common law as an important precedent set
centuries ago and saw no reason to overturn it. Thus, he rejected the international
law interpretation of both Solicitor General Holmes and George Collins. After

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further reasoning, Justice Gray, representing the 6-2 majority opinion, ultimately
declared Wong Kim Ark a citizen of the United States.31
Dissenting Opinion
Chief Justice Fuller disagreed with the majority and filed a dissenting
opinion. He noted that based on the logic of the majority opinion, any child of
citizens born outside the geographical jurisdiction of the United States would not
be granted automatic citizenship.32
Instead, they would need to obtain citizenship
through naturalization, and “no statutory provision to the contrary is of any force or
effect.”33
Justice Fuller also concurred with Solicitor General Conrad’s arguments
about referencing international law. Although he conceded that constitutional
language often dictated common law interpretation, questions about citizenship and
naturalization, in Justice Fuller’s view, were inherently political, and in this case,
involved “international relations.”34
Justice Fuller also emphasized the American
Revolution, which he believed both asserted American sovereignty and ended all
links between American law and English common law.35
Therefore, political
jurisdiction rather than geographical jurisdiction should be considered when
discussing issues concerning citizenship.

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In addition, Justice Fuller believed that the Chinese differed from other
immigrants on two counts. First, the laws of China forbade them from retracting
their allegiance to China. He wrote the following to highlight this fact:
The Chinese under their form of government, the treaties and statutes,
cannot become citizens nor acquire a permanent home here, no matter what
the length of their stay may be.36
The laws of the United States, Justice Fuller viewed, also barred them from
expressing allegiance to the United States. He emphasized the case Fong Yue Ting
v. United States, which overturned the friendly Burlingame-Seward Treaty of 1868.
The Government of the United States was brought to the opinion that the
presence within our territory of large numbers of Chinese laborers, of a
distinct race and religion, remaining strangers in the land, residing apart by
themselves, tenaciously adhering to the customs and usages of their own
country, unfamiliar with our institutions, and apparently incapable of
assimilating with our people, might endanger good order, and be injurious to
the public interests; and therefore requested and obtained from China a
modification of the treaty.37
Justice Gray concluded his dissent by reiterating his belief that “the
Fourteenth Amendment does not exclude from citizenship by birth children born in
the United States of parents permanently located therein, and who might
themselves become citizens.”38
Thus, Wong Kim Ark, in his estimation, was never
a citizen of the United States and the “order of the District Court should be
reversed.”39
Reactions and Consequences

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Expectedly, this landmark decision garnered conflicting reactions from the
public. Marshall Woodworth, a US district attorney in San Francisco, believed that
utilizing international law principles may be more “logical and satisfactory than
that of common law.” Nevertheless, he insisted that the court interpreted the 14th
amendment correctly and that there was no “valid objection” to using the common
law doctrine.40
In an article published by the Los Angeles Herald, titled “Citizen
Wong Kim Ark”, Justice Gray’s majority opinion was described as “an exceedingly
able presentation”, but Justice Fuller’s dissent was viewed as “hardly less elaborate
and even more confident and emphatic in tone.”41
One university law professor
believed the court's decision to “be a distinct retrogression” and if the case was
brought to court once more, would likely be “reversed.”42
However, regardless of
personal viewpoints, legal commentators all understood the significance of the
case.
First, the court’s decision altered the judicial interpretation of the 14th
amendment. Prior to the case United States v. Wong Kim Ark (1898), the Supreme
Court, as shown by Justice Miller’s interpretation in the Slaughter-House Cases
(1873), restricted the guarantees of the 14th amendment to white and black
Americans.43
Prospective cases, such as Yick Wo v. Hopkins (1886) and Holden v.
Hardy (1898) showed more expansive interpretations of the amendment.44
Yet, it

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wasn’t until this case that the full protective power of the 14th amendment was
recognized.
Most importantly, this case established the meaning of the 14th amendment
citizenship clause. To be “subject to the jurisdiction” officially meant to be subject
to the geographical jurisdiction as dictated by English common law. Likewise,
birthright citizenship became guaranteed under the 14th amendment.45
Elk v.
Wilkins (1884) had created uncertainty regarding the citizenship status of children
with non-citizen parents, but Ark’s case resolved this uncertainty. Now, all children
born on American soil, regardless of documentation or parentage legacy, would be
American citizens. They would receive the same rights, privileges, and equal
protection under the law. However, there were two notable exceptions to this
citizenship clause. American Indians remained excluded from citizenship
eligibility until 1924 when President Coolidge signed the Indian Citizenship Act.46
Furthermore, the citizenship status of children of undocumented immigrants was
not explicitly discussed in United States v. Wong Kim Ark (1898) but was later
guaranteed in Plyler v. Doe (1982).47
Conclusion
On the same day the Supreme Court issued its landmark decision, the US
Naval Court announced that a mine blew up the USS Maine in Havana Harbor.48

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Thus, the court case did not garner nearly as much press as it should have. Granted,
the decision made a brief appearance in at least 129 magazines and newspapers,
but the majority of them simply republished one or two articles.49
Today, the case is often treated with the same neglect and disrespect. To be
clear, this statement is not referring to legal scholars or law students who could
unquestionably recite this case by heart, but rather those who could alter the history
curriculum in our high schools. This case is far too important to leave out of any
US History course and should be discussed just as much as other prominent court
cases.
As the new generation of pioneers, scholars, and decision-makers, it will
soon become our responsibility to look after the future. However, we must be
cognizant of the past before looking toward the future. The story of Wong Kim Ark
and his fascinating legal battle against injustice is certainly one that we cannot
ignore.

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Endnotes
1. Teresa Fung, “Being Chinese in America,” Scholastic Update, no.120
(September 18, 1987): 37,
https://link.gale.com/apps/doc/A5209858/AONE?u=googlescholar&sid=googleSc
holar&xid=e629a3c7.
2. Fung., 37
3. Carol Nackenoff and Julie Novkov, American by Birth (Kansas:
University Press of Kansas, 2021), 73
4. John H. Barnhill, Review of Chinese Immigrants, African Americans,
and Racial Anxiety in the United States, by Najia Aarim-Heriot, The Western
Journal of Black Studies 28, no. 3 (2004): 444,
https://link.gale.com/apps/doc/A142574441/AONE?u=nysl_oweb&sid=googleSch
olar&xid=a25b8cd9.
5. Erika Lee. “Review of Closing the Gate: Race, Politics, and the Chinese
Exclusion Act,” Journal of Interdisciplinary History 30, no. 4 (2000): 713-714.
muse.jhu.edu/article/15929.
6. Robert A. Pastor. “U. S. Immigration Policy and Latin America: In
Search of the Special Relationship,” Latin American Research Review 19, no. 3
(1984): 35–56. http://www.jstor.org/stable/2503379.
7. Nackenoff and Novkov, American by Birth, 38.
9. Beatrice Mckenzie, To Know a Citizen: Birthright Citizenship Documents
Regimes in U.S. History, ed. Benjamin N. Lawrence and Jacqueline Stevens (Duke:
Duke University Press, 2017), 119.
10. Ron Soodalter, “By soil or by blood: in 1898 a San Francisco-born man
of Chinese descent expanded the definition of American citizenship,” American
History, vol. 50, no. 6 (February 2016): 59.
http://claver.gprep.org/fac/sjochs/chinese%20immigration%20and%20discriminati
on.pdf
12. Soodalter, “By soil or by blood,” 61.
13. Mckenzie, To Know a Citizen, 121.
16. In re Wong Kim Ark, 71 F. at 392.
19. Holmes Conrad and George Collins, Brief on the Behalf of the
Appellant: United States v. Wong Kim Ark,” in Landmark Briefs and Arguments of

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the Supreme Court of the United States, vol.14, ed. Philip B. Kurland and Gerhard
Casper (Arlington, VA: University Publications of America, 1975), 3, 9-10.
20. Conrad and Collins, Landmark Briefs and Arguments, 26.
22. Nackenoff and Novkov, American by Birth, 106-107.
23. Thomas Riordan, “Brief for Respondent: United States v. Wong Kim
Ark,” in Landmark Briefs and Arguments of the Supreme Court of the United
States, vol.14, ed. Philip B. Kurland and Gerhard Casper (Arlington, VA:
University Publications of America, 1975), 47.
24. Riordan, Landmark Briefs and Arguments, 47-48.
25. Maxwell Evarts, “Brief for the Appellee on Reargument: United States
v. Wong Kim Ark,” in Landmark Briefs and Arguments of the Supreme Court of the
United States, vol.14, ed. Philip B. Kurland and Gerhard Casper (Arlington, VA:
University Publications of America, 1975), 109.
26. J. Hubley Ashton, “Brief for the Appellee on Reargument: United States
v. Wong Kim Ark,” in Landmark Briefs and Arguments of the Supreme Court of the
United States: Constitutional Law, vol.14, ed. Philip B. Kurland and Gerhard
Casper (Arlington, VA: University Publications of America, 1975), 271.
27. Horace Gray and Supreme Court of the United States, “United States v.
Wong Kim Ark, 169 U.S. 649 (1898),” U.S. Reports, no. 169 (1897): 653.
29. Gray and Supreme Court of the United States, United States v. Wong
Kim Ark, 656.
Kim Ark, 658.
Kim Ark, 705.
Kim Ark, 706.
Kim Ark, 706.
Kim Ark, 707.
Kim Ark, 731.
Kim Ark, 731.
Kim Ark, 732.

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Kim Ark, 732.
40. Marshall Woodworth, “Who are Citizens of the United States? Wong
Kim Ark Case—Interpretation of the Fourteenth Amendment,” in The American
Law Review, ed. Seymour D. Thompson and Leonard A. Jones (St.Louis: Review
Publishing Co., 1898), 32:561.
41. Enoch Knight, “Citizen Wong Kim Ark,” Los Angeles Herald, July 24,
1898. California Digital Newspaper Collection, Center for Bibliographic Studies
and Research, University of California, Riverside, http://cdnc.ucr.edu.
42. Enoch Knight, “Citizen Wong Kim Ark.”
43. William Guthrie, Lectures on the Fourteenth Article of Amendment to
the Constitution of the United States (Minneapolis: University of Minnesota Press,
1898), 20-21.
44. Guthrie, Lectures on the Fourteenth Article of Amendment, 20-21.
45. James Ho, “Defining “American": Birthright Citizenship and the
Original Understanding of the 14th Amendment,” The Green Bag 9, no.4 (2006):
368.
47. Ho, “Defining “American”,” 374.

16
Bibliography
Barnhill, John H. Review of Chinese Immigrants, African Americans, and Racial
Anxiety in the United States, by Najia Aarim-Heriot. The Western Journal of
Black Studies 28, no. 3 (2004): 444+.
https://link.gale.com/apps/doc/A142574441/AONE?u=nysl_oweb&sid=goo
gleScholar&xid=a25b8cd9.
Conrad, Holmes, and George Collins.”Brief on the Behalf of the Appellant: United
States v. Wong Kim Ark,” in Landmark Briefs and Arguments of the Supreme
Court of the United States, vol.14, edited by Philip B. Kurland and Gerhard
Casper. Arlington, VA: University Publications of America, 1975.
Fung, Teresa. "Being Chinese in America." Scholastic Update, no.120 (September
18, 1987): 37.
https://link.gale.com/apps/doc/A5209858/AONE?u=googlescholar&sid=goo
gleScholar&xid=e629a3c7.
Gray, Horace, and Supreme Court of the United States. “United States v. Wong
Kim Ark, 169 U.S. 649 (1898).” U.S. Reports, no. 169 (1897): 649-732.
Guthrie, William. Lectures on the Fourteenth Article of Amendment to the
Constitution of the United States. Minneapolis: University of Minnesota
Press, 1898.
Ho, James. “Defining “American": Birthright Citizenship and the Original
Understanding of the 14th Amendment.” The Green Bag 9, no.4 (2006):
367-378.
In re Wong Kim Ark, 71 F. 382 (N.D. Cal. 1896)
J. Hubley Ashton, “Brief for the Appellee on Reargument: United States v. Wong
Kim Ark,” in Landmark Briefs and Arguments of the Supreme Court of the
United States, vol.14, edited by Philip B. Kurland and Gerhard Casper.
Arlington, VA: University Publications of America, 1975.
Knight, Enoch. “Citizen Wong Kim Ark.” Los Angeles Herald, July 24, 1898.
California Digital Newspaper Collection, Center for Bibliographic Studies
and Research, University of California, Riverside, <http://cdnc.ucr.edu>.

17
Kurland, Philip B., and Gerhard Casper, eds. Landmark Briefs and Arguments of
the Supreme Court of the United States: Constitutional Law. Bethesda:
University Publications of America, 1975.
Landmark Briefs and Arguments of the Supreme Court of the United States:
Constitutional Law. (Gerhard Casper & Philip B. Kurland eds., University
Publications of America, 1975).
Lee, Erika. “Review of Closing the Gate: Race, Politics, and the Chinese Exclusion
Act.” Journal of Interdisciplinary History 30, no. 4 (2000): 713-714.
muse.jhu.edu/article/15929.
Maxwell Evarts, “Brief for the Appellee on Reargument: United States v. Wong
Kim Ark,” in Landmark Briefs and Arguments of the Supreme Court of the
United States, vol.14, edited by Philip B. Kurland and Gerhard Casper.
Arlington, VA: University Publications of America, 1975.
Mckenzie, Beatrice, To Know a Citizen: Birthright Citizenship Documents Regimes
in U.S. History. Edited by Benjamin N. Lawrence and Jacqueline Stevens.
Duke: Duke University Press, 2017.
Nackenoff, Carol, and Julie Novkov. American by Birth. Kansas: University Press
of Kansas, 2021.
Pastor, Robert A. “U. S. Immigration Policy and Latin America: In Search of the
Special Relationship.” Latin American Research Review 19, no. 3 (1984):
35–56. http://www.jstor.org/stable/2503379.
Philip B. Kurland and Gerhard Casper, eds., Landmark Briefs and Arguments of the
Supreme Court of the United States: Constitutional Law (Bethesda:
University Publications of America, 1975), 3, 9-10.
Soodalter, Ron. “By soil or by blood: in 1898 a San Francisco-born man of
Chinese descent expanded the definition of American citizenship.” American
History, vol. 50, no. 6 (February 2016): 56+.
http://claver.gprep.org/fac/sjochs/chinese%20immigration%20and%20discri
mination.pdf

18
Thomas Riordan, “Brief for Respondent: United States v. Wong Kim Ark,” in
Landmark Briefs and Arguments of the Supreme Court of the United States,
vol.14, edited by Philip B. Kurland and Gerhard Casper. Arlington, VA:
University Publications of America, 1975.
Woodworth, Marshall. “Who are Citizens of the United States? Wong Kim Ark
Case—Interpretation of the Fourteenth Amendment.” In The American Law
Review, edited by Seymour D. Thompson and Leonard A. Jones, 554-561.
Vol.32. St.Louis: Review Publishing Co., 1898.

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