On July 4, 1895, U.S. flags fluttered alongside red Chinese lanterns outside 753 Clay Street, the newly claimed San Francisco headquarters of the Native Sons of the Golden State (NSGS).Footnote 1 Inside, NSGS president Chun Dick rose to speak. Standing at five feet two inches with short-cropped black hair, he shared that at least fifty men in NSGS were birthright citizens and ready to vote, and that more Chinese American voters would follow.Footnote 2 Chun Dick, members of the Chinese community in attendance, their guests, and journalists in the room reflected a new political reality: Chinese American children, born in the United States, were coming of age and claiming a place in U.S. politics. Chinese immigrants constituted the largest racial minority in the state, and while many were ineligible to vote, their children who could were organizing to do so. Therefore, this moment on July 4 in San Francisco marked a turning point.
John H. Wise, the San Francisco customs collector charged with overseeing the arrival of all immigrants to the city, took notice of the July 4 NSGS gathering. Out of concern, on July 10, 1895, he telegrammed the Treasury Department in Washington, D.C. to alert officials, “There is now an organization in Chinatown, San Francisco composed of alleged native born Chinese.” Wise, a Democrat, self-described “zealous opponent of Chinese immigration,” and former Southerner whose prominent relatives had fiercely defended slavery, noted, “This organization proposes to demand rights for members as citizens, to vote at elections, and take part in the politics of this country.”Footnote 3 Wise interpreted the work of NSGS as that of foreigners, declaring that “all their actions will be toward legislation, which is detrimental to our Commonwealth.” He insisted that “A test case should be made,” to the Supreme Court using one of the “alleged native-born Chinese, now knocking for admission.” To lead the litigation, Wise recommended that the federal government approach George D. Collins, a San Francisco-based attorney who had a reputation for contesting birthright citizenship, since the young lawyer was “very anxious that a case could be made and appealed to the Supreme Court.”Footnote 4
Three weeks later, Holmes Conrad, the Acting Attorney General of the Department of Justice--a Virginia Democrat who had previously lost his own right to citizenship for serving as a Confederate and regained it--directed Henry S. Foote, U.S. District Attorney, to “test the legality of the admission” for Chinese Americans.Footnote 5 Foote, a Democrat and former Confederate soldier who had been captured by Union forces, requested “an immediate conference” with Wise to discuss a test case.Footnote 6 In early August, Wise detained Wong Kim Ark, a twenty-four-year-old man born in San Francisco, when he attempted to return to the city after a visit to his wife and child in China. For the next three years, the question of Wong’s citizenship—and by extension, the future of birthright citizenship in the United States—wound its way through the courts before the Supreme Court ruled in his favor. The case marks a pivotal moment in U.S. history in affirming the principle of birthright citizenship for the children of immigrants born in the United States.
This essay excavates the historical context in which the federal government challenged birthright citizenship in the case of Wong Kim Ark. It reveals that federal employees with nativist views like John Wise, Henry Foote, and Holmes Conrad sought to use their discretionary authority and judicial power to strip Chinese Americans of their birthright citizenship and block their access to the ballot box. Their efforts were integral to conservative efforts to erode Reconstruction-era reforms, including the Fourteenth and Fifteenth Amendments, in the U.S. West after the Civil War as Chinese American interest in voting rights grew.Footnote 7
In the wake of the Civil War, Radical Republicans pursued constitutional amendments in favor of birthright citizenship and voting rights over concerns that these issues could not be trusted to the states. The Reconstruction Amendments became the formal law of the land by 1870, but efforts to retrench racial hierarchies continued.Footnote 8 Following the ratification of the amendments, men with Confederate ties, like Wise and Conrad, emerged from within the architecture of the federal government and leveraged their discretionary and legal authority as federal employees to circumvent the constitutional amendments that many Democrats and Southern states had opposed.Footnote 9 Their views, which took shape in the South, converged with those of others in the U.S. West and influenced a rising generation of Westerners who viewed Reconstruction-era reforms like birthright citizenship and expanded franchise for all men as racial threats to the nation they claimed to own and control.
The debates lawmakers engaged in following the Civil War focused largely on the citizenship and voting rights of African Americans, Native Americans, women, and immigrants. The heated debates concerning immigrant communities included both Chinese immigrants and their children, whether born in the United States or abroad. The Fourteenth Amendment, ratified in 1868 after decades of African American advocacy for birthright citizenship, defined national citizenship in the United States for the first time. The Amendment, one of three after the Civil War, shifted power from the states to the federal government and declared that “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.”Footnote 10 In 1870, Congress ratified the Fifteenth Amendment, which formally guaranteed: “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.”Footnote 11 The amendments represented a sea change in citizenship, voting rights, and state power, particularly for children born in the United States and many men of color.Footnote 12 But the color line among immigrants was maintained in federal naturalization law in 1870.Footnote 13 Congress agreed to pass the Fifteenth Amendment and extend voting rights to male citizens as part of a critical compromise that excluded women and all immigrants who were not white or of African descent.Footnote 14
The amendments sparked fierce debate in California and influenced party politics. Among their broader concerns, leading politicians and everyday residents of the state expressed their belief that the new amendments would grant citizenship and voting rights to Chinese immigrants and their children.Footnote 15 The California legislature did not ratify the Fourteenth and Fifteenth Amendments until the mid-twentieth century, revealing an unwilling consensus in both parties (and third parties) to accept greater racial equality even as formal law on the books. When Congress forwarded the Fifteenth Amendment to the states for ratification, opposition in California coalesced around racial science that did not view men of color as equally human.Footnote 16
California lawmakers’ resistance and contestation of voting rights mapped onto a larger national and imperial story. In the post-Civil War decades, southern states enacted Jim Crow laws that disenfranchised African Americans and circumvented the promise of the Reconstruction Amendments through local and state law, including state constitutional amendments, literacy exams, and poll taxes. Meanwhile, federal and state governments subjected many Native American communities to wardship, forced removal, and assimilation policies aimed at erasing tribal sovereignty and land rights further west. When Native people like Winnebago John Elk attempted to vote by claiming they were birthright citizens, the Supreme Court ruled against them.Footnote 17 Even when Congress extended citizenship to Native communities, which some communities opposed, it did not guarantee their access to the vote. Across the country, state lawmakers compelled or supported by partisan institutions and civic organizations, also sought to restrict voting rights for immigrant men by reconfiguring voting as a citizen-only right. While many states recognized the right of declarant aliens (i.e., those who had filed naturalization papers) to vote, some suffragists advocated against anti-alien suffrage with aspirations to secure voting rights for women who were U.S. citizens.Footnote 18 What these forms of voter disenfranchisement revealed was that the constitutional debates over citizenship and voting rights that defined the heated halls of Congress after the Civil War and during Reconstruction had not come to an end despite existing constitutional protections.
Over the coming decades, the California legislature ratified a series of amendments to the state constitution with the intent to disenfranchise Chinese immigrants. By this time, Chinese immigrants were already cast as outsiders and the immigration problem in the U.S. West, and lawmakers had responded with a sweeping, punitive legal regime. From naturalization and business permits to property ownership and reentry rights, Chinese immigrants encountered barriers at every turn. The use of the state’s legal system to block the rights of Chinese immigrants was publicly apparent as early as 1852. In an April address that year to the state legislature, Democratic Governor John Bigler laid bare the racial logic behind this regime. Citing federal restrictions that limited naturalization to “free white persons,” Bigler urged lawmakers to deny Chinese immigrants even basic legal rights, such as testifying in court or serving on juries. Chinese people, he claimed, were incapable of understanding U.S. institutions or values. “To enhance the prosperity and preserve the tranquility of this State,” he declared, “Asiatic immigration must be checked.”Footnote 19 Bigler’s remarks exposed the structure of racial exclusion: deny immigrants citizenship on racial grounds, restrict their rights because they lack citizenship, and, ultimately, deport them.
If voting rights were restricted to immigrant communities based on citizenship, what about those who were birthright citizens? In the immigration context, attacks on birthright citizenship became a charged battleground where nativists sought to deny entire generations of Chinese Americans access to civil and political rights guaranteed to them as U.S. citizens. Some contended that Chinese American children, even if born in the United States, inherited their foreignness and alienage from their parents. Others asserted that, even as U.S. citizens, Chinese Americans born in the United States could not exercise the same rights as other citizens because their parents were ineligible for naturalization; therefore, it was impossible that their children could claim U.S. citizenship. In courtrooms, legislatures, and formal academic writing, nativists framed their arguments carefully. Federal and state judges eventually rejected this logic in a series of substantive rulings, but not before the struggle over America’s ballot box forged new mechanisms of racial inequality.
“John Chinaman Can’t Vote” and the Theory of an “Incapable” Race
Wong Kim Ark was eight years old in 1878, when a group of Chinese immigrants tested their ability to naturalize and John Norton Pomeroy, an attorney, prolific author, and professor at Hastings College of Law, argued that children of Chinese immigrants were not birthright citizens. A California resident, Pomeroy likely witnessed the rise of state and federal laws targeting Chinese immigrants as they became the largest racial minority in the state.Footnote 20 Pomeroy’s arguments emerged in the wake of a courtroom drama that captivated the public. On April 22, 1878, a small group of Chinese immigrants, accompanied by community advocates B.S. Brooks and Consul Bee, submitted naturalization petitions in the U.S. District Court for the Northern District of California in San Francisco. The local press, picking up on these cases, feared that Chinese immigrants could influence local politics and potentially challenge the segregationist and racially oppressive regime supported by them and figures like Bigler. As one paper published in the state’s capital put it, “With the Chinese possessing the elective franchise, what a fearful picture the future of this State would present.”Footnote 21
Judge Lorenzo Sawyer had presided over numerous cases involving Chinese immigrants since his appointment to the court in 1869, but the Chinese immigrants’ naturalization petitions prompted a legal reckoning just as the Workingmen’s Party of California achieved significant political victories in the state.Footnote 22 Although Congress had expanded naturalization rights in 1870, it did so selectively, extending them only to white persons and individuals of African nativity and descent.Footnote 23 Court clerks and judges remained uncertain as to who constituted a white person. Presiding over the case, Sawyer was convinced that Chinese immigrants, based on existing race science, their skin color, common knowledge, and a reading of the congressional record, were not white. He ruled that because Chinese immigrants were not white, they were ineligible to naturalize.Footnote 24 In the press, however, the right to vote emerged as the central issue of concern about the case, making clear that restricting naturalization was critical to creating racial boundaries at the ballot box. “One bone of contention is settled,” a Sonoma County newspaper declared after the court’s decision, “John Chinaman can’t vote.”Footnote 25 That year, state lawmakers including those of the Workingmen’s Party, ratified a new amendment explicitly disenfranchising any “native of China” from the right to vote at California’s Second Constitutional Convention.Footnote 26
Following the court’s decision In re Ah Yup, Pomeroy put his thoughts to paper, seeking to draw a boundary around the Fourteenth Amendment in lectures and essays. Birthright citizenship, he argued, should not apply to the children of immigrants whom Congress deemed ineligible for naturalization. Chinese immigrants did not meet that standard, in Pomeroy’s view. Instead, only children born to a race capable of being made citizens, he asserted, fell within the amendment’s scope. Local papers took up Pomeroy’s arguments, claiming that the law professor would solve a looming dilemma. “There have already been several instances where the children of Chinese born in California have exercised the franchise … The number of Chinese children is gradually on the increase, and the Mongolian element may ultimately become an important consideration to political parties if their right to vote passes unchallenged,” one paper warned before citing Pomeroy’s legal theory.Footnote 27
Through the 1880s, Chinese American families fought off multiple efforts to strip their children of birthright citizenship. In 1882, Congress—after years of advocacy from nativist lawmakers in the U.S. West—supported the passage of the Chinese Restriction Act. The new law was the first federal law to ban entire community of immigrants from naturalization and entry on account of their nationality and underscored how federal power over immigration, which began to consolidate during the Reconstruction era, could be employed for exclusionary ends. The 1882 law restricted new immigrants—not returning immigrants—but did not receive enough funding for expansive enforcement according to some contemporaries.Footnote 28 In 1884, a more stringent revision of the law required returning passengers to carry certificates of residency. Immigration officials at western ports of entry used the law to detain Chinese immigrants and Chinese American children and young adults born in the United States. That year, John H. Wise detained a young boy named Look Tin Sing at the border, insisting he was subject to immigration laws that required him to carry a re-entry certificate. As the case unfolded, the federal government, assisted by Pomeroy, unsuccessfully attacked birthright citizenship in federal court.Footnote 29 The tactics honed in California—detaining children, weaponizing paperwork, and undermining citizenship through parental status—spread to ports in Oregon and Washington, particularly Seattle and Portland, both home to growing Chinese American communities, where immigration inspectors with aspirations to close to the border to any person of Chinese ancestry attempted to deport the children of Chinese immigrants.
In 1888, Congress passed the Scott Act, a sweeping measure that invalidated all return certificates for Chinese immigrants, effectively stranding tens of thousands of former U.S. residents of Chinese ancestry outside the country. Likely emboldened by the passage of the new law, federal officials on the Pacific seaboard, including John Wise, began detaining immigrants and U.S. citizens of Chinese ancestry again, claiming they could be deported. Their efforts failed in every known case that went to court as federal judges rebuked their claims. But that did not ensure legal justice for Chinese Americans. As the Scott Act went into effect, figures within the Justice Department, including U.S. Attorney for the District of San Francisco, John T. Carey, a Democrat born in Missouri, alleged that Chinese Americans were falsely claiming birthright citizenship to circumvent immigration laws designed specifically to exclude Chinese immigrants. Male lawmakers with similar views called on the department to present a test case to challenge Chinese Americans’ claim to birthright citizenship.Footnote 30 The exact number of Chinese Americans detained during this period is unknown, and it is likely that some citizens were deported. In what survives of these records, it is clear that immigration inspectors continued to detain, and possibly deport, children and young adults even after courts affirmed that U.S.-born children of Chinese ancestry were U.S. citizens.Footnote 31
The “New and Startling Phase of the Chinese Question”
Chinese immigrant communities across the United States responded to the rise in federal anti-Chinese legislation and local violence by turning, in part, to the ballot box. In the mid-1880s, as increasingly stringent legislation took effect, naturalized Chinese immigrants began to discuss the importance of voter registration. Not all judges agreed with the ruling in Ah Yup’s case. Judges across the country naturalized Chinese immigrants believing they were white.Footnote 32 How often many of these groups of men met is unknown, but their meetings leave a trail in the local press. In July 1884, for example, The Rock Island Argus reported that approximately fifty naturalized Chinese American men gathered at 32 Pell Street in New York’s Chinatown to form a political association. As U.S. citizens, the men aspired to use their positions to sway politicians away from anti-Chinese platforms.Footnote 33 On the eve of the 1888 presidential election, a group of New Yorkers met again to form the Chinese Citizens’ Union to advance voting and other political issues among naturalized Chinese men. At their meeting, Tom L. Lee, a business owner and community activist, claimed that “… both Republicans and Democrats are determined to boycott the Chinamen,” and the association encouraged its members to “vote as they please.”Footnote 34
Chinese American organizing in U.S. politics and voting was not new. As early as 1852, Norman Asing, a Chinese immigrant and businessman who owned the Macau and Woosung Restaurant in San Francisco, issued a searing open letter to then-Governor Bigler. “Sir: I am a Chinaman, a republican, and a lover of free institutions,” he began. “I am a naturalized citizen, your Excellency … and a Christian, too.” He denounced Bigler’s proposal to deport Chinese immigrants as unlawful and un-American: “You have no more right to propose a measure for checking immigration than you have the right of sending a message to the Legislature on the subject.” His closing carried both warning and resolve: “As many of us, and many more, will acquire a domicile amongst you.”Footnote 35 Moreover, Chinese Americans had voted in major U.S. elections as early as 1860 when Pennsylvania-based Hong Neok Woo voted for Abraham Lincoln before serving in the Union Army.Footnote 36
By the 1890s, Chinese immigrants’ involvement in U.S. politics was swept into large-scale political resistance when Congress introduced a mandate requiring Chinese immigrants to carry certificates of residence and produce them for any law enforcement officer. Failure to comply could result in hard labor and deportation.Footnote 37 The Geary Act, a more punitive extension of the Chinese Exclusion Act named after California Congressman Thomas J. Geary, set off a flurry of protest and litigation from Chinese immigrants organized, in part, by the Chinese Six Companies, a central body that planned and advocated for Chinese immigrants in the United States (among other economic and diplomatic interests). Chinese immigrants likely recognized the importance of naturalization and voting amid forced registration under the Geary Act and a wider range of laws targeting Chinese immigrants. But Chinese American men encountered resistance as they registered to vote. In 1893, local authorities in New York City alleged that Wong Chin Foo, a naturalized U.S. citizen who went on to co-found the Chinese Equal Rights League in New York City, violated voting laws. A jury later declared him not guilty.Footnote 38 Even those born in the United States faced challenges when exercising their right to vote. In 1894, for example, twenty-two-year-old Sam Sing, a native of Oroville, CA and manager at Hong Wo & Co—a prominent merchandise store in Marysville’s Chinatown—attempted to vote in Marysville, CA, where he was registered as a Republican for the midterm elections. Judge C.A. Webb insisted that the young manager was ineligible to vote due to his “transient alien parentage,” but the larger board agreed to let him since his name appeared on the official list of registered voters.Footnote 39 During that year’s election, the ballot included state constitutional amendments to prohibit new voters who could not read the U.S. Constitution in English and write their name. The same constitutional amendment sought to ensure “no native of China...ever exercise the privileges of an elector in this State.”Footnote 40 After the election, The San Francisco Call reflected on Chinese American voting and suggested: “The fact that [Chinese voters] were not molested has given these native sons … new ideas as to their rights and privileges, and they are very much interested in them, and all Chinatown is agog over the matter …”Footnote 41 By the early months of 1895, Chun Dick and other young Chinese American men like him proudly organized the NSGS and declared their place in U.S. politics.
Federal bureaucrats like John Wise and the judge overseeing Oroville’s voting precinct were committed to undermining voting rights for Chinese Americans. In August, Wise detained Wong Kim Ark. Wong may have been an ideal test candidate for the federal government because he was an adult laborer with limited financial resources and social capital. Additionally, Wong’s parents, wife, and children did not reside in the United States, so the family would not be separated if he were deported. Wise claimed that despite his birth in San Francisco, Wong Kim Ark was not a U.S. citizen. By Wise’s logic, children born to Chinese immigrants in the United States were the subjects of a foreign power, just like their parents. In court, the federal government was represented by U.S. District Attorney Henry S. Foote and legal scholar George D. Collins. In his argument supporting the federal government, Collins asserted that if common law ideas of birthright citizenship prevailed, U.S. citizenship would extend to the “rag tag and bob tail of humanity, who happen to be deposited on our soil by the accident of birth,” and “whose education and political affiliations are entirely alien.”Footnote 42 These argument mimicked the general premise of inherited alienage touted by John Pomeroy in the wake of the In re Ah Yup decision nearly thirty years earlier.
After the federal government and Wong’s attorneys laid their arguments to rest, a newspaper awaiting the court’s decision described the climate: “The Chinese will await [Judge Morrow’s ruling] with eagerness, and the politicians who have been counting on the Chinese vote are saying nothing just at present.”Footnote 43 The San Francisco Call predicted that Chun Dick and others leading the NSGS “could probably control all the votes of Chinatown for some lucky manipulator in 1896.”Footnote 44 As the election year began, Morrow ruled in Wong Kim Ark’s favor in district court.Footnote 45 “That Chinese born in this country…may exercise the elective franchise, and may go and come whenever and wherever they please,” a local newspaper declared, “is the effect of…Judge Morrow’s decision of the test case of Wong Kim Ark.”Footnote 46 Months later, The San Francisco Call proclaimed that the case marked a “new and startling phase of the Chinese question,” whereby “A small army of Mongols is marching leisurely along the dusty highway of time toward the ultimate and sure ballot-box,” before condemning the rise of Chinese Americans in local and state politics.Footnote 47
As the federal government appealed the case, anti-Chinese advocates continued to oppose voting rights in private correspondence. In January 1896, the Department of Justice hired George D. Collins to assist the federal government in building a case against Wong Kim Ark. Collins was no ordinary lawyer. He openly criticized federal precedent on birthright citizenship and published on the subject, including in the American Law Review.Footnote 48 He was also a generation younger than and familiar with the writings of lawyers like Alexander Porter Morse, a Democrat who led Louisiana’s case to protect segregated train cars in Plessy v. Ferguson. The two represented the multi-generational attempts to restrict citizenship and equal rights following the Civil War.Footnote 49 Many of Collins’s legal connections and views were clear but he also reserved some for a more private sphere. In a private letter sent to the Supreme Court while Wong Kim Ark’s case was waiting to be heard, Collins requested the court issue a decision a few months before the presidential election “Otherwise there will be a considerable difficulty in California relative to the votes of the Chinese.” He also warned that any ruling against Wong Kim Ark “would disenfranchise a large number of white persons whose citizenship is based upon birth but whose parents were then aliens…” and that they would need “sufficient time to become naturalized and registered as voters, in order to be entitled to vote at the presidential election.”Footnote 50 Collins made his racial priorities clear: he supported stripping citizenship and voting rights from U.S.-born children of Chinese immigrants but not those of European descent. Collins was not alone. Attorney General Judson Harmon, an Ohio Democrat, hoped the case would be heard by the Supreme Court prior to the election. A local paper reported Harmon intended to prevent more than 500 Chinese Americans from voting in California.Footnote 51
Collins, Harmon, and Wise were not the only men concerned about voting rights in the upcoming election. In Texas, elected officials in San Antonio took to the courts to prohibit the naturalization of Mexican immigrants like Ricardo Rodriguez with the explicit intent of restricting their right to vote in May 1896. The leading proponents of the disenfranchisment efforts hoped to target birthright citizens of Mexican ancestry and explicitly looked at the cases of Ah Yup and Wong Kim Ark as possible precedent.Footnote 52 Rodriguez’s test case on the southern borderland and Wong Kim Ark’s on the Pacific border revealed the legal formations forged against Mexican and Asian Asian immigrant communities in federal court as elected officials, government employees, and lawyers targeted their right to U.S. citizenship to dismantle the promises of the Fourteenth and Fifteenth Amendments.Footnote 53
In his argument to the Supreme Court in Wong Kim Ark’s case, U.S. Solicitor General Holmes Conrad challenged the Fourteenth Amendment itself as he continued through his final days as solicitor during the Republicans’ ascension to the presidency with the victory of William McKinley. Conrad advocated for states’ rights, perpetuated theories of cultural citizenship, race science, and social Darwinism, and insisted Southerners had been coerced into ratifying the Fourteenth Amendment. “For Conrad,” the legal scholar and historian Lucy Salyer astutely notes, “a powerful national government brought distasteful memories of Reconstruction, described in the brief as ‘that unhappy period of rabid rage and malevolent zeal when corrupt ignorance and debauched patriotism held high carnival in the halls of Congress.’” Conrad’s politics disturbed Collins, who asked the attorney general to repudicate his brief.Footnote 54 The request revealed how legal bedfellows seeking to deny birthright citizenship to specific communities could also hold diverging political views. Later that month, after two years of litigation--during which Wong Kim Ark lived under the threat of deportation--the Supreme Court ruled 6-2 in his favor, affirming that children born in the United States were U.S. citizens.Footnote 55 Soon, the court found itself facing similar questions around citizenship and rights in the context of its newly colonized subjects across the Pacific and Caribbean following the country’s victory in the Spanish-American War, and time and time again with Indigenous peoples.
After Wong Kim Ark
Responding to the Supreme Court’s ruling in Wong Kim Ark, California’s Newcastle News wrote, “The evil would not be so great were it confined to Chinese actually born here, but it will practically apply to millions of them born in China and claiming to be born here.” The paper then stressed that it would “devolve upon the government to prove the contrary; of course, all it needs to enable a Chinaman to vote would be the ‘proper’ affidavits.”Footnote 56 It also foreshadowed the politics and litigation that followed the Supreme Court’s ruling as federal officials compelled Chinese Americans to prove their status as U.S. citizens at a time when birth certificates were uncommon. Nativists continued to search for new legal avenues to segregate, exclude, and discriminate against U.S. citizens of Chinese ancestry after Wong Kim Ark. Wise and other immigration inspectors in Seattle and Portland detained and deported U.S. citizens of Chinese ancestry, alleging they had lied about their legal status. Wong Kim Ark’s children were held at the border, and when he crossed the border to Mexico in 1901, he was detained again and caught in litigation for four months before federal officials realized who he was.Footnote 57
In detention, immigration inspectors interrogated U.S. citizens of Chinese ancestry, including children, for hours and even days in some cases. When Chinese Americans took their cases to court, the U.S. Supreme Court ruled to restrict their access to judicial review in 1905. Justice Josiah Brewer authored a scathing dissent to the court’s majority, underscoring the hypocrisy of federal bureaucrats in enforcing immigration law against birthright citizens of Chinese descent. “The rules of the Department declare that the statutes do not apply to citizens, and yet, in the face of all this, we are told that they may be enforced against citizens, and that Congress so intended,” Brewer wrote. “Banishment of a citizen not merely removes him from the limits of his native land but puts him beyond the reach of any of the protecting clauses of the Constitution. In other words, it strips him of all the rights which are given to a citizen.” He concluded, “I cannot believe that Congress intended to provide that a citizen, simply because he belongs to an obnoxious race, can be deprived of all the liberty and protection which the Constitution guarantees, and if it did so intend, I do not believe that it has the power to do so.”Footnote 58
In subsequent years, Chinese Americans also found their rights increasingly differentiated from those of other U.S. citizens, including the right to family unification on account of race in 1924. These forms of lawmaking and their implementation revealed the blurred line between citizens and aliens of Chinese ancestry despite growing distinctions on the books, as Maddalena Marinari and Anna Pegler Gordon highlight in this forum. Moreover, while the Supreme Court settled the issue of birthright citizenship in Wong Kim Ark’s case, lawmakers, lawyers, and civil organizations in California (and elsewhere) routinely tried to strip citizenship from the children of Asian immigrants throughout the twentieth century. This history–partly concealed in private correspondence among federal employees and later presented in race-neutral language in the courts, and partly forged through political and legal activism of immigrant communities--created a legacy that casts its shadow over the United States today.
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