The Corner

Justice Harlan On Birthright Citizenship

In the matter of Wong Kim Ark (whose name, I cannot forbear noticing, is an anagram of MAKING WORK), a reader isntructs me thus:

Mr. Derbyshire–With respect to your comments on the ’subject to the jurisdiction thereof’ clause of the 14th Amendment, I thought you might be interested to know that Justice Harlan took a position quite similar to yours. I append an excerpt from a lecture he delivered to his Constitutional Law Class at Columbia University on May 7, 1898, immediately after Wong Kim Ark was decided.

“We had an illustration of the application of this amendment in the present term of our court. It was the case about the Chinese subject, to which I had called your attention heretofore. It is the case of the Chinaman born in San Francisco, twenty-odd years ago, of Chinese parents. Father and mother were living in San Francisco, the father engaged in business there, but they were subjects of the Emperor of China, and this boy was born to them in San Francisco, and the question was whether or not this Chinaman, the son of Chinese parents, residing in the United States, but nevertheless subjects of the Emperor of China, was a citizen of the United States, by reason of the fact that he was born there. The question turns upon two or three words of this amendment. “All persons born in the United States,” well he was born here, but now come the words, “and subject to the jurisdiction thereof.” Now, if that boy was within the meaning of that clause, subject to the jurisdiction of the United States, then he became a

citizen of the United States, and of the state wherein he resided. The majority of the Court held that he was. The minority held that he was not born to the jurisdiction of the United States, as to this Constitution. He was not born subject to the political jurisdiction of the United States. Of course, he owed allegiance to our laws, as every man who comes here, but he was not born under the jurisdiction of the United States, within the meaning of this Article of the Constitution. I was one of the minority, and of course I was wrong. Suppose an English father and mother went down to Hot Springs to get rid of the gout, or rheumatism, and while he is there, there is a child born. Now, he goes back to England. Is that child a citizen of the United States, born to the jurisdiction thereof, by the mere accident of his birth? My belief was never intended to embrace everybody in our citizenship if he was the child of parents who cannot under the law become naturalized in the United States. I was unable to believe that when the boy’s parents could not become citizens of the United States, that it was possible for him to become a citizen of the United States. One of the results of the opposite view is that when that man goes back to China, and the Emperor should conclude to cut his head off, a custom which prevails to a very great extent among these people, we would have to prevent it, and if we could not do this, make him pay for it afterwards. Or if they impress him into the Chinese army, we would have to protect him. Of course, I am wrong, because only the Chief Justice and myself held these views, and as the majority decided the other way, we must believe that we were wrong.”

Harlan was of course the justice who uttered that other opinion

so deeply unpopular — considered wellnigh un-American, I think — among our

educated classes nowadays: “Our Constitution is color blind and neither

knows nor tolerates classes among citizens.” I find myself in agreement

with him on both points.

The common denominator here is the treasuring and cherishing of U.S.

citizenship, as a great boon, a thing of value and moment.

John Derbyshire — Mr. Derbyshire is a former contributing editor of National Review.

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