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 episode was written and produced by Felix Poon.
Transcript:
Archival: Civics 101 is supported in part by the Corporation for Public Broadcasting.
Felix Poon: Hi, Nick. Hi, Hannah.
Hannah McCarthy: Hey, Felix.
Nick 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. We're very glad you're here today.
Hannah McCarthy: Felix Yeah. And Felix, you are going to guest host today, right?
Felix Poon: I am, because I've got a story for you, and this story starts in 1895. A man named Wong Kim Ark is on a steamship returning to his hometown of San Francisco, [00:00:30] 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.
Hannah McCarthy: But you said it was his hometown of San Francisco, Right. So are you saying that someone born on U.S. soil was not allowed back into the country?
Felix Poon: 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 [00:01:00] could, but some Chinese Americans sued the U.S. government to be granted entry. Wong came out, 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 as a U.S. citizen. And that's the law. But not many people have ever heard of Wong Kim Ark and the landmark Supreme Court decision that decided his fate and [00:01:30] the fate of U.S. immigration policy that endures to this day. 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 refresher course on the basics of how our democracy works. Today, the story of Wong Kim Ark, the man, the landmark Supreme Court case and the legacy of birthright citizenship. Before I tell you about Wong Kim Ark, I need to tell you about the America [00:02:00] that you 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.
Carol Nackenoff: In San Francisco. You have a labor organizer, Denis Kearney, who was agitating that the Chinese were taking white jobs [00:02:30] and and running a Chinese must go campaign.
Felix Poon: This is Carroll Nackenoff, professor of political science at Swarthmore College and coauthor of the forthcoming book American By Birth Wong Kim Ark and the Battle for Citizenship.
Carol Nackenoff: In July of 1877, a mob formed and destroyed $100,000 in Chinese owned property, burning laundries and leaving four dead.
Felix Poon: That's millions of dollars of damage in today's money. That's a lot. But [00:03:00] 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.
Hannah 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?
Nick Capodice: No, not at all.
Felix Poon: Yeah, I didn't even learn about it until college, and I was kind of shocked to hear about [00:03:30] it, especially 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. So that's the hostile environment that Wong Kim Ark was born into around 1871 [00:04:00] in San Francisco. He grew up in Chinatown. He was five foot seven tall. His father was Wong Zi Ping, 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?
Carol Nackenoff: They ran a store that's considered a merchant, which was in the city directory listed in 1879 and 1880 as a butcher and provision for.
Felix Poon: Wong Kim Ark didn't have much formal education. [00:04:30]
Carol Nackenoff: From age 11. He was listed as a cook.
Felix Poon: 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 Yishai from his ancestral town of toI san. 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 [00:05:00] States.
Bethany Berger: And so he was detained. And he said, hey, I was born here. I'm a citizen. You have to let me in.
Felix Poon: This is Bethany Berger, professor of law at the University of Connecticut.
Bethany Berger: Not only did he say that he had.. 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.
Felix Poon: One of those papers is a notarized letter. We, the undersigned, do hereby certify [00:05:30] that the said Wong Kim Ark is well known to us a witness statement.
Carol Nackenoff: Anybody else traveling, a white American traveling abroad didn't have to have anything in the way of documents.
Felix Poon: This is Carol Nackenoff again.
Carol Nackenoff: 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.
Felix Poon: These witnesses [00:06:00] couldn't be Chinese. They had to be white.
Nick Capodice: Wait, was that written in? Was that was that a stipulation of it? Like they had to be white?
Felix Poon: 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, right?
Carol Nackenoff: And they would go through an interview, get this certificate that allowed them to return, go and return. [00:06:30] And it was a single use document.
Felix Poon: Even with this documentation in hand, the customs agent denies Wong K mark entry and so basically he has nowhere to go. So he gets back on the boat.
Hannah McCarthy: Seriously, did he have to go back to China?
Felix Poon: 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 [00:07:00] 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.
Nick Capodice: The six companies. What's that?
Felix Poon: Well, companies is probably a misnomer. There were 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.
Bethany Berger: Again. In the first. Years of [00:07:30] the exclusion laws.They brought 7000 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.
Hannah McCarthy: That's actually very cool.
Felix Poon: So the six companies are there for Wong Kim Ark. They file for habeas [00:08:00] corpus.
Nick Capodice: Habeas corpus, that little Latin phrase. That means bring the unlawfully detained person before the court.
Felix Poon: Yep, that's it. It's a right to a trial. Meanwhile, Wong Clark is still off the coast of San Francisco on a ship. And that ship is about to sail back to China.
Bethany Berger: So he's put onto another ship, and then that ship wants to go back and he's put on to another ship. And so this is a period. Of months. In which he's confined, looking over. At. [00:08:30]His hometown, but unable to set foot there.
Nick Capodice: So is he granted habeas?
Felix Poon: They do grant him habeas. But what's interesting here is that the judge actually agrees in principle with the U.S. government that Wonky Mark 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 Clark is a U.S. citizen because of the citizenship clause of the 14th Amendment.
Hannah McCarthy: So this judge makes explicitly [00:09:00] 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 [00:09:30] Felix Wong, Kim Ark won?
Felix Poon: Yeah, he won. I mean, he was still unlawfully detained on three different boats for five months, but at least he won his court case.
Nick Capodice: So is that it, Felix Like, is this happily ever after for Wong Kim Ark?
Felix Poon: No, not quite.
Julie Novkov: The government immediately appeals, so they take it all the way up to [00:10:00] the US Supreme Court.
Felix Poon: This is Julie Novikov. She's a professor of political science at the University at Albany and coauthor with Carroll on their book, American by Birth. Wong Kim Ark in the Battle for Citizenship.
Julie Novkov: 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 [00:10:30] 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, they are entitled to citizenship on the basis of the 14th Amendment.
Felix Poon: In writing the majority opinion, Justice [00:11:00] 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 there are children that are born here, not US citizens, children born here of a foreign occupying force. It 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 [00:11:30] categories. So he is indeed a US citizen.
Nick 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?
Felix Poon: I mean, basically and Justice Gray wrote this in his opinion that to deny 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 [00:12:00] 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. But then there were some unintended consequences in the aftermath of the ruling.
Nick Capodice: Like what?
Felix Poon: So there's this phenomenon of paper sons.
Nick Capodice: Paper sons actually know about these, do you Hannah?
Hannah McCarthy: I don't. I would imagine it's someone claiming someone as their their son [00:12:30] or your daughter, but it would be son in this case.
Nick 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. Right. So all new Chinese immigrants to the U.S. are claiming that they are the children of people already here on paper, therefore paper sons.
Julie Novkov: Some of these paper sons were maybe not necessarily the sons of citizens, but they were close relatives, maybe they were brothers, [00:13:00] maybe they were nephews. But because there's an awareness among immigration officials that that this is happening, they become far, far more suspicious. What evolves out of this is that you 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.
Felix Poon: And exclusion laws only [00:13:30] get worse.
Julie Novkov: 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 One. [00:14:00]
Archival: My fellow countrymen. 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.
Felix Poon: It's not until the Immigration and Nationality Act of 1965 that immigration bans and quotas are completely lifted.
Archival: With my signature. This system is abolished. [00:14:30]
Felix Poon: And finally, you have greater numbers of Asians immigrating to the US.
Archival: Never again shatter the gate to the American nation.
Felix Poon: 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 [00:15:00] Mexican Americans. They call for doing away with birthright citizenship and immigration.
Archival: President Trump is setting to challenge a 150 year old constitutional standard that anyone born in America is an American citizen.
Hannah McCarthy: The President. But the president can't just unilaterally do away with something that was decided in the Supreme Court, right? I mean, the Wonka marque ruling means that they can't just get rid of birthright citizenship.
Felix Poon: Well, some would argue that the Wong Kim Ark ruling doesn't [00:15:30] apply here because Wonka Marks parents were here legally while undocumented immigrants are here illegally.
Nick Capodice: So what did the people you talked to think about that?
Felix Poon: 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 U.S. shores, you were a citizen. But given the exclusion laws, it was clear the government wanted to exclude Chinese people from this country. [00:16:00] 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 two thirds majorities, and then it needs to be approved by three fourths of state legislatures. So birthright citizenship is probably here to stay. And our guests all agreed that's a good thing. Here's Julie Novikov.
Julie Novkov: Well, I think birthright citizenship is [00:16:30] 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 of being born in America. And regardless of where you're coming from or what your situation is, there's a kind of moral [00:17:00] valence to birthright citizenship that is entangled in a productive and good way with American ideals.
Hannah McCarthy: Felix I'm so curious what happened in the end to Wong Kim Ark.
Felix Poon: 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 in that fourth trip in 1931. Was Wong [00:17:30] Mark's last. He didn't come back to the US and we know that he died sometime in the 1940s.
Nick Capodice: So do you know if, like, he died without ever knowing what his legacy was?
Felix Poon: 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 Ark had to get Erika went to see the originals [00:18:00] at the National Archives at San Francisco, and she saw that by his third and fourth trips to China, the U.S. government standardized them into a templated form.
Erica Lee: 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 [00:18:30] that. That term alleged citizen shows just how deeply rooted and institutionalized this racism was. So. 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, where's the copy of the Supreme Court case? Like, shouldn't this be like in Monopoly? Should this be or get out of jail free [00:19:00] card? Like, shouldn't he have just, like, gotten walked off the ship? Hey, it's one mark, you know. Come on in. That didn't happen.
Hannah 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 that person ostensibly the beneficiary isn't practically [00:19:30] 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 Ark, right?
Felix Poon: Oh, definitely. But there is one last thing to this story. What this landmark ruling does do for Wong Kim Ark is that it allows his sons to immigrate to the US and become naturalized citizens. So guess what? Wong Kim Ark has descendants here in the US, and I just think that's amazing because the US government tried so hard to prevent [00:20:00] Chinese immigrants from establishing families here, but here they are, the family of Wong Kim Ark.
Hannah McCarthy: Mark Felix Does this end up being this proud family story that gets passed down?
Felix Poon: 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 Ark's youngest son just happened to see it reported in the Chinese language newspaper.
Erica Lee: And this is where for the first time, those of us who had [00:20:30] researched Wong Kim Mark 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 [00:21:00] Supreme Court case and the right of birthright citizenship was based on his father's efforts. 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, [00:21:30] but for all of us who care about our our country. One would think that when you win a Supreme Court case and that it establishes such a 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 [00:22:00] would be a a statue, that there would be a way that every schoolchild would know who this person was and the importance of his struggle for equality.
Nick Capodice: I just want to say I think it's interesting that the three of us are talking about learning or not learning about [00:22:30] 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.
Hannah McCarthy: I feel like after today, I have a much clearer sense of this time in American history. So thanks for sharing Felix.
Felix Poon: Yeah, thank you for having me host Today it's been an honor to be able to tell you this story. Today's [00:23:00] episode was produced by me Felix Poon, along with Hannah McCarthy, Nick Capodice and Jacqui Fulton. Erika Janik is our executive producer. Special thanks to Bill Hing and Taylor Quimby. Music In this episode from Blue Dot Sessions, Sara, the instrumentalist, Loba Loco and the Tower of Light. You can listen to more Civics 101 at Civics101podcast.org. Civics 101 is supported in part by the Corporation for Public Broadcasting. [00:23:30] It's a production of NHPR, New Hampshire Public Radio.
