When Congress debated the wording of the Fourteenth Amendment, Chinese immigration was not at the forefront of legislators’ minds. They were primarily focused on granting citizenship to newly emancipated Black people while continuing to deny it to Native people living outside of America’s jurisdiction. Their ultimate choice of words reflected these desires. The first sentence of the amendment proclaimed, “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.”Footnote ¹

But some legislators did realize that by enshrining birthright citizenship in the U.S. Constitution, they were opening a hitherto closed door. Since 1790, Chinese immigrants had been racially barred from naturalization, but the Fourteenth Amendment would produce a clear legal pathway to citizenship for the next generation. Fearing racial contamination through Chinese migration, a few legislators argued against birthright citizenship. But it was a California senator, John Conness (R-CA), who ultimately put their fears to rest. He told his fellow senators that they should make “no further trouble on account of the Chinese in California.” He recognized that the amendment would produce U.S. citizens of Chinese descent, and “that the children of all parentage whatever, born in California, should be regarded and treated as citizens of the United States.”Footnote ² But he assured the Senate that most Chinese would eventually return to the country of their birth and that California was more than capable of protecting itself.

In the end, Conness found it easier to convince his fellow senators than his fellow Californians. The California legislature refused to ratify the Fourteenth Amendment, and the swelling anti-Chinese fervor in the state eventually pushed Conness out of politics. Even without California’s support, the Fourteenth Amendment reached the threshold for ratification in July 1868.

While the Fourteenth Amendment granted U.S. citizenship to American-born Chinese, Congress continued to block the naturalization of Chinese immigrants. When legislators amended federal naturalization law in 1870, they expanded naturalization rights to people of African descent but pointedly excluded the Chinese. As a result, the Fourteenth Amendment and the 1870 Naturalization Act formally cleaved the Chinese community in two: on one side were Chinese immigrants, who would remain permanent aliens, and the other were American-born Chinese, who had the privileges of U.S. citizenship. In practice, the line between these two groups was often blurred by federal inconsistencies and Chinese fraud, but the formal division remained.Footnote ³

The wording of the Fourteenth Amendment was clear, as was Congress’ original intent, but this did not stop the growing anti-Chinese movement from questioning the legitimacy of natural-born Chinese American citizens in the decades that followed. After all, a lot was at stake. For Chinese Americans like Wong Kim Ark, what was most clearly at stake was the ability to cross the United States’ borders. Born in California, Wong visited China and then sought reentry into the United States in 1895. At the time, the Chinese Exclusion laws barred all Chinese laborers from entering the United States. Therefore, Wong’s ability to reenter the country was dependent on his citizenship status. To preserve his transpacific mobility, he fought to affirm his right to birthright citizenship. The landmark case that bears his name, United States v. Wong Kim Ark (1898), established that all persons born in the United States, including the children of aliens, are natural-born U.S. citizens.Footnote ⁴

The case reaffirmed that birthright citizenship was a bedrock of the American republic, but in so doing, it also signaled the widening gap between citizenship and alienage. In the thirty years between the ratification of the Fourteenth Amendment and the decision in Wong Kim Ark, the disadvantages of alienage had proliferated for the Chinese. This was in large part due to the federal immigration laws that emerged in the interim. First the Page Act (1875) targeted “Oriental” women, criminals, and contract laborers; then the Chinese Restriction Act (1882), Chinese Exclusion Act (1888), and Geary Act (1892) targeted Chinese laborers, barring the vast majority of prospective immigrants from China. As the exclusion laws piled up, the hardships of those with alien status increased. For example, Wong, as merely an alleged alien, faced immigration detention and the threat of deportation proceedings.Footnote ⁵

But while historians have emphasized the shifting nature of immigration law and its consequences for Chinese aliens, they have paid less attention to local governance. In fact, states and municipalities also held significant power to determine aliens’ rights. And it was due to local governance that the disadvantages of alienage multiplied during the late nineteenth century.Footnote ⁶ In other words, not only did Wong’s citizenship allow him to enter the United States, but it also granted him certain rights within American society and, at least in theory, protected him from the daily indignities of Chinese alienage.

Historians have spent considerable time mapping the meaning of citizenship—its rights, duties, and privileges; its social, economic, and political forms; its gendered exclusions; and its racial biases. We have spent much less time on alienage, as if the meaning of alienage can be discerned by a study of its inverse. But the problem is that alienage is not the opposite of citizenship. Alienage is not the mere absence of a citizen’s rights. In fact, aliens and citizens in the United States hold a distinct but overlapping set of civil rights. Moreover, in the nineteenth century, there were other important forms of non-citizen status, including that of “denizen,” “slave,” “Indian,” and “national.” Alienage was one form of non-citizenship among many.Footnote ⁷

Historians have more work to do before we can map the meaning of alienage—its rights, duties, and privileges; its social, economic, and political forms; its gendered exclusions; and its racial biases. We know from work on citizenship rights that the language of the law did not always describe social realities at the turn of the twentieth century. Citizens’ rights may appear uniform on paper, but in practice the lived experience of citizenship varied dramatically. To hold rights, people had to have the power to exert them, and that power depended on a host of factors, some of which were relatively stable (i.e., race, gender, class) and others of which shifted frequently (i.e., space, time, circumstance). All this was true for the lived experience of alienage as well. Chinese aliens faced particular hurdles due to both formal laws and legal customs.

In the years following the ratification of the Fourteenth Amendment, the constraints on Chinese aliens’ daily lives increased. This was due, in a roundabout way, to the amendment itself. The second sentence of the Fourteenth Amendment reads: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” The mid-sentence shift between the privileges of “citizens” and the rights of “persons” held great significance. It meant that the promise of “equal protection” applied alike to all people residing in the United States, whether or not they were citizens.Footnote ⁸

The Equal Protection Clause posed a problem for lawmakers on the West Coast. During the 1850s and 1860s, western lawmakers had blatantly targeted the Chinese based on their race with little fear of judicial review. But as they watched what unfolded in the South, they realized this strategy was untenable. Based on the Equal Protection Clause, Black litigants went to court to fight discriminatory state laws across the South, and they successfully struck down many laws in which states explicitly targeted them based on race. In the 1870s, Chinese litigants followed suit, beginning a broad assault on state and local racial laws in the West.Footnote ⁹

However, the initial success of Black and Chinese litigants provoked a dramatic backlash. Southern white supremacists reinstated racial lines through violence, a strict racial etiquette, and the legal logic of separate-but-equal.Footnote ¹⁰ In the West, anti-Chinese lawmakers experimented with related strategies, but they also called on the federal government to enact exclusion and, for a local solution, turned to alienage and citizenship laws. In some domains, western lawmakers directly substituted bars based on race for those based on alienage.Footnote ¹¹

Suffrage provides a prime example. California, Oregon, and Washington Territory originally determined suffrage rights based on race. California’s 1849 Constitution limited the vote to “white male citizens of the United States” and any “white male citizen of Mexico, who shall have elected to become a citizen of the United States.” In 1854, Washington Territory granted the vote to “white male inhabitants” who were “citizens of the United States, or shall have declared, on oath, their intentions to become such.” In other words, Washington enfranchised white aliens, as long as they had declared their intent to naturalize. Oregon’s 1858 Constitution did the same. It granted the vote to “every white male citizen” and “every white male of foreign birth” as long as they had lived in the state for six months. Although it was redundant, Oregon also declared that “no negro, Chinaman, or mulatto shall have the right of suffrage.”Footnote ¹²

But the Reconstruction amendments tested these race-based legal provisions. In addition to the Fourteenth Amendment, Congress drafted the Fifteenth Amendment to specifically address voting rights, declaring, “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude.” The Fifteenth Amendment pledged federal protection of Black suffrage, a promise that would, for a short time, transform the American electorate.Footnote ¹³

While the Fifteenth Amendment broadly protected citizens of all races, it did not apply to Chinese aliens. Therefore, when California revised its constitution in 1879, delegates focused on nativity rather than race. The California Constitution declared that “no native of China … shall ever exercise the privileges of an elector.” The state no longer excluded Chinese voters based on their racial status; rather, it excluded them based on their birthplace.Footnote ¹⁴ Oregon did not amend its state constitution in the decades following the Fifteenth Amendment, but an 1887 reprinting of the constitution acknowledged that the law regarding suffrage had changed. The reprinting noted that “negroes and mulattoes born or naturalized in the United States” were now citizens by virtue of the Fourteenth Amendment and, “the same as white citizens,” “entitled to the right of suffrage.”Footnote ¹⁵ The reprinting did not mention Chinese immigrants, who had no path to citizenship, and therefore remained disenfranchised. Upon statehood in 1889, Washington’s new constitution no longer included racial prerequisites for voting, but it made citizenship a new requirement.Footnote ¹⁶

After 1870, the Chinese in the West were disenfranchised based on their permanent alienage (and, in California, their nativity) rather than their race. By substituting alienage bars for racial ones, the states left open the possibility that American-born Chinese would vote in U.S. elections. Therefore, Wong Kim Ark’s voting rights stood in the balance during his fight to maintain his citizenship.Footnote ¹⁷

Suffrage was far from the only right Wong could have lost if he were denied citizenship. Western lawmakers replaced racial language with alienage bars in other domains as well. For example, California had passed an 1860 law that declared that “no Chinese or Mongolian shall be allowed to catch or take fish” without paying $4 per month for a license. But in light of the Equal Protection Clause, they made their intent more subtle in subsequent laws. The state first barred the use of “Chinese sturgeon lines” and “Chinese shrimp nets,” and then barred aliens “ineligible to citizenship” from receiving fishing licenses altogether.Footnote ¹⁸ Wong’s fishing rights stood in the balance during his fight for U.S. citizenship.

So did a host of other rights. In California, Oregon, and Washington, only a citizen (and qualified elector) could stand for elected office at the municipal or state level. Citizenship was also required for most appointed positions, including that of chief of police, school director, health inspector, city clerk, park commissioner, harbor commissioner, and auditor. In some municipalities, other jobs were dependent on citizenship as well; citizenship could be required to become a policeman, schoolteacher, or even one of the contract workers repaving the city streets. In San Francisco, only citizens could apply for a liquor license; in Ferndale, California, only citizens could gain access to government records; in Salem, Oregon, only citizens could swear out a complaint against a “vagrant.” When California passed a civil rights act in 1897 prohibiting racial discrimination in “inns, restaurants, hotels, eating-houses, barber-shop, bath-houses, theatres, skating-rinks, and other places of public accommodation or amusement,” the law only applied to citizens.Footnote ¹⁹ These laws were not necessarily written for the express purpose of restricting the rights of Chinese aliens, but that is what they did.

Due to these state and local laws, as well as federal immigration laws, much hung in the balance in U.S. v. Wong Kim Ark. In the thirty years since the ratification of the Fourteenth Amendment, the gulf between citizenship and alienage had widened, as Western lawmakers targeted Chinese based on their legal status rather than their race. In the case, Wong fought for his ability to reenter the United States and, once within the country, to have equal opportunities in the American West. The government lawyers who fought against him fought not only to close America’s gates, but also to deny all American-born Chinese access to economic resources, occupations, social services, and the ballot. With the support of the White House, government lawyers fought to deny Wong Kim Ark his constitutional right to birthright citizenship—and they lost.