Collusion: Trump v. Fourteenth Amendment

Amid the spate of executive orders issued by Donald Trump during his first day in office was one ending what has been called “birthright citizenship.” Widely considered both beyond the president’s authority and unconstitutional, the order is merely a ploy to get the matter before the Supreme Court, where Trump expects “his justices” to uphold his edict.

He is, alas, likely to succeed.

Birthright citizenship springs from Section 1 of the Fourteenth Amendment, which states, “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.” While the amendment, ratified in 1868, had clearly been intended to guarantee citizenship to freed slaves, there was nothing in the wording that limited its application, unless “subject to the jurisdiction thereof” could somehow be turned into a restriction, which is what Trump intends to do.

There are two theories that can apply. The first is called jus soli or “law of the soil.” It means that citizenship is determined by where a person is born. The second is jus sanguinis or “law of the blood,” which means that citizenship is determined by the nationality or ethnicity of one’s parents. Although the United States had always been a jus soli nation, there is nothing that says it cannot be changed.

Which is precisely what Trump intends to do.

He is not the first. The same tactic was tried before, more than a century ago, that time aimed not at migrants from across the southern border, but rather at the Chinese.

By the 1890s, Chinese, despised throughout the West, were not only forbidden to apply for citizenship, but, after the Exclusion Act of 1882, were almost entirely barred from entering the country.

A decade before, in 1871, a merchant named Wong Si Ping and his wife Wong Wee Lee welcomed a son, who they named Wong Kim Ark. The elder Wong and his wife had lived in California for more than a decade but could never apply for American citizenship. But what about their child? Was he an American citizen? As a result of the Fourteenth Amendment, had Wong Kim Ark achieved by accident of birth what his parents could never attain under any circumstances?

Throughout Wong’s childhood, the question did not come up. He was more or less accepted as a citizen, although “unnoticed as a citizen” would have been a more accurate phrase.

Wong visited China in 1890, after which he returned to the United States without incident. Some years later, he traveled to China once more, returning to the United States in August 1895. This time, he was denied entry by a customs inspector in San Francisco. Although he had all the necessary documents to prove that he had been born in the United States, the inspector claimed he was not a citizen.

Wong’s being denied admittance was a contrivance by the government in Washington to challenge birthright citizenship. “The decision was in accordance with an arrangement made with Attorney General Judson Harmon, who is anxious to test the right of native born Chinese to land here,” the Associated Press reported. The intention, then as now, was to prompt a re-interpretation of the Fourteenth Amendment by the Supreme Court, where a conservative majority, like today’s, made the government confident of victory.

“According to the contention of the government,” the article went on, “a person born in the United States must not be at the time of his birth subject to any foreign power, thus making it indispensable to citizenship by birth that the parent then be an American citizen.” And so, US Attorney Henry Foote, “claimed that a Chinese could not become a citizen of this country, even though born here, under the Fourteenth Amendment to the Constitution.” Since Wong was born to parents who were subjects of China, Foote went on, he was also a subject of China and was therefore not, in the words of the 14th Amendment, “subject to the jurisdiction” of the United States.

But, significantly, the Chinese would not be the only ones impacted. “If the contention of the government is upheld, the standing of all people born in the United States of alien parentage will be greatly affected.”

Wong was held offshore for five months in a series of ships anchored in San Francisco Bay. In bringing suit, his lawyer insisted that no matter how much the government tried to dodge the issue, the United States was a jus soli nation, had always been so, and the Fourteenth Amendment had been enacted under that rule. Like it or not, Wong Kim Ark was a citizen of the United States, entitled to all the privileges and immunities that citizenship transmitted.

The case made its way to the Supreme Court, where, on March 29, 1898, in a 6-2 decision that stunned white supremacists, the Court ruled for Wong.

Justice Horace Gray wrote the opinion and stated the issue to be decided narrowly. “The question presented by the record is 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, 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.” But the Fourteenth Amendment made no mention of “permanent domicile,” so Gray had already limited the reach of the decision to a certain category of immigrant.

But perhaps the real reason for the Court’s decision can be found buried in the middle of Justice Gray’s opinion: “To hold that the Fourteenth Amendment of the Constitution excludes from citizenship the children, born in the United States, of citizens or subjects of other countries would be to 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.”

The scenario drawn by Western whites of the Chinese arriving by the thousands to overrun white civilization had not persuaded the justices, almost all of whom were from the East. There were so few native-born Americans of Chinese descent that they were less concerned with them than the much larger number of native-born children from “desirable” northern European countries.

The current situation is far different. Outrage over the flood of migrants from across the southern border is nationwide, and while many, perhaps even most, Americans are sympathetic to children of those who entered the country illegally decades ago and have grown up as American citizens, this Supreme Court may not be swayed.

Trump can count on the votes of Thomas and Alito, and likely Gorsuch as well. It is the middle three, Roberts, Kavanaugh, and Barrett, who will determine to what degree the United States has become a heartless nation.

After witnessing the Court’s recent behavior, there is not a good deal of hope.