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Birthright Citizenship Under Attack: Can Congress Overrule Wong Kim Ark?
Who was Wong Kim Ark? The question of who qualifies as a citizen at birth in the United States—seemingly settled over a century ago—is once again a subject of legal and political contestation. The Supreme Court’s landmark decision in United States v. Wong Kim Ark (1898) has long stood as the definitive interpretation of the Fourteenth Amendment’s Citizenship Clause, guaranteeing birthright citizenship to nearly all born on American soil. Yet in recent decades, especially amidst rising anti-immigrant rhetoric and calls for tighter immigration control, this foundational principle has come under renewed scrutiny. At the heart of this debate lies a constitutional query of considerable magnitude: Can Congress, by statute, overrule Wong Kim Ark and limit or abolish birthright citizenship for children born to noncitizen parents?
This essay argues that Congress lacks the constitutional authority to override Wong Kim Ark through ordinary legislation. The case established a robust interpretation of the Fourteenth Amendment that only a constitutional amendment—not statutory action—could abrogate. This discussion requires an exploration of the historical and legal context of Wong Kim Ark, the meaning of the Citizenship Clause, the limits of congressional power over citizenship, and the implications of recent political efforts to narrow or eliminate birthright citizenship.
I. The Citizenship Clause and the Historical Origins of Birthright Citizenship
The Citizenship Clause of the Fourteenth Amendment reads:
“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.”
This provision was adopted in 1868 to repudiate the infamous Dred Scott v. Sandford (1857) decision, which denied citizenship to African Americans, and to codify the principle of jus soli—the right of the soil—into constitutional law. It is based on the English common law tradition that birth within the territory confers allegiance and thus citizenship, regardless of the legal status of one’s parents.
The phrase “subject to the jurisdiction thereof” has generated interpretative debate. However, contemporaneous legal scholars and legislators understood it to mean subject to U.S. law and government authority—excluding only those not subject to full U.S. jurisdiction, such as foreign diplomats and enemy occupiers, not immigrant residents.
II. United States v. Wong Kim Ark: The Precedent
In United States v. Wong Kim Ark, 169 U.S. 649 (1898), the United States Supreme Court rendered a decisive interpretation of the Fourteenth Amendment’s Citizenship Clause, resolving one of the most significant legal questions of the post-Reconstruction era: whether the child of non-citizen parents, born on U.S. soil, is entitled to American citizenship at birth. The ruling came at a time of intense anti-immigrant sentiment and racial exclusion laws, particularly targeting Chinese immigrants through legislation such as the Chinese Exclusion Act of 1882. It was a moment when the promise of equality enshrined in the Constitution faced the heavy weight of political expedience and xenophobia.
The case centered on Wong Kim Ark, born in 1873 in San Francisco to Chinese nationals who were permanent U.S. residents but ineligible for naturalization under then-current law, which limited naturalization to “free white persons” and persons of African descent. His parents returned to China temporarily, but Wong remained in the United States. In 1895, after a visit to China, Wong was denied reentry by customs officials on the grounds that he was not a U.S. citizen. He was detained aboard a vessel in the Port of San Francisco, and his legal challenge eventually reached the Supreme Court.
I. Legal Background and Context: Exclusion, Race, and Jurisdiction
The case emerged against the backdrop of Chinese exclusion policies. The Chinese Exclusion Act, passed in 1882 and extended repeatedly thereafter, was the first major federal law to restrict immigration based explicitly on race and nationality. It reflected a prevailing hostility toward Chinese immigrants, who were seen as racially inferior and economically threatening. Chinese immigrants were denied the right to naturalize and often subjected to discriminatory laws at the state and local levels.
Crucially, however, Wong Kim Ark was not about immigration law per se, but about constitutional citizenship. The key legal question was whether a child born in the United States to foreign nationals—particularly those ineligible for naturalization and racially excluded from the polity—could claim citizenship at birth under the Fourteenth Amendment. The government argued that Wong was not a citizen because his parents owed allegiance to the Emperor of China and were not fully subject to U.S. jurisdiction. It invoked the theory that jus sanguinis—citizenship by bloodline—ought to be determinative in this context.
II. The Court’s Reasoning: A Return to Common Law
The Supreme Court, in a 6–2 decision authored by Justice Horace Gray, rejected the government’s argument and affirmed that Wong Kim Ark was a citizen by virtue of his birth in the United States.
Justice Gray’s opinion delved deeply into the historical origins of American citizenship law. He emphasized that the Fourteenth Amendment had codified the common law principle of jus soli, according to which citizenship attaches at birth to anyone born within the sovereign territory of a nation, regardless of parental lineage—except in limited cases such as the children of diplomats or invading enemies.
“To hold that the Fourteenth Amendment does not cover the children born in the United States of foreigners residing here would be to deny the meaning which has always been given to the words of the Constitution,” Gray wrote.
The Court cited English common law precedents, including Calvin’s Case (1608), in which birth within the dominion of the sovereign conferred “natural-born subject” status. Gray argued that the American legal tradition had adopted this understanding, and that the Fourteenth Amendment was intended to affirm this rule in light of the citizenship controversies that culminated in Dred Scott.
Moreover, the Court reasoned that the clause “subject to the jurisdiction thereof” was not intended to exclude children of lawful resident aliens, even if those aliens were barred from naturalization. The phrase excluded only those whose allegiance to the U.S. was legally absent, such as foreign diplomats or hostile occupiers—not immigrants living peacefully and subject to American law.
III. The Dissenting Opinion: Concerns of Allegiance and Race
Justice Melville Fuller, joined by Justice Harlan, dissented, arguing that the children of noncitizens—especially those barred from becoming citizens themselves—should not automatically receive citizenship by birth. Fuller maintained that birthright citizenship should apply only to those who were fully and voluntarily subject to U.S. political jurisdiction.
Though couched in legalistic language, the dissent reflected the racial and political anxieties of the age. The Chinese were viewed by many lawmakers as culturally incompatible with American norms, and their children were considered by some to be incapable of full assimilation. Fuller’s dissent raised the fear that Wong Kim Ark would create an uncontrolled path to citizenship for children of immigrants broadly considered undesirable.
However, the dissent failed to provide a persuasive alternative interpretation of the Fourteenth Amendment’s language or intent. Its reliance on the perceived loyalty or assimilability of a given group introduced a dangerous subjectivity into the legal definition of citizenship—one the majority firmly rejected.
IV. Doctrinal Impact and Enduring Significance
The decision in Wong Kim Ark has become a cornerstone of constitutional citizenship doctrine. It reinforced the Fourteenth Amendment as a shield against racialized and arbitrary exclusion from the national community. By ruling that the Constitution—not Congress, not public opinion, and not racial animus—determines who is a citizen at birth, the Court preserved the integrity of a principle vital to American democracy: equal belonging by birth.
In the century since, the Court has not deviated from the Wong Kim Ark precedent. Later decisions, such as Plyler v. Doe (1982), which held that undocumented children are “persons” entitled to equal protection under the Fourteenth Amendment, implicitly reaffirmed the inclusive vision of jurisdiction adopted in Wong Kim Ark.
The decision also holds international significance. Few nations embrace unconditional jus soli, and the U.S. remains one of the most generous in this regard. As such, Wong Kim Ark not only defines the legal reality of American citizenship but also reflects a broader commitment to egalitarianism, birthright, and the rejection of caste.
V. Philosophical Reflection: Citizenship and the Human Condition
Beyond the legal reasoning, Wong Kim Ark offers a philosophical assertion about the nature of political membership. Citizenship, in the Court’s formulation, is not inherited through blood or lineage; it is conferred through presence and birth, through being here, in the shared space of the political community. It reflects a universalist rather than ethnonationalist vision of statehood—one that values inclusion over exclusion, principle over prejudice.
The case reminds us that constitutional law is not merely technical; it is deeply moral. The affirmation of Wong Kim Ark’s citizenship declared that no person born on American soil could be alien to its promises simply because of ancestry. It made clear that the Constitution belongs to all who are born under its skies—regardless of the walls others would build.
III. Can Congress Overrule Wong Kim Ark? The Limits of Legislative Power
At the core of the contemporary debate surrounding birthright citizenship lies a fundamental constitutional inquiry: Does Congress possess the authority to legislatively overturn the Supreme Court’s decision in United States v. Wong Kim Ark (1898)? Can a mere statute—passed by majority vote in both Houses and signed by the President—redefine the meaning of the Fourteenth Amendment’s Citizenship Clause, particularly the phrase “born in the United States, and subject to the jurisdiction thereof”? The short but constitutionally profound answer is: no.
The power to alter constitutional meaning does not lie within the ordinary legislative process. The principles enshrined in Wong Kim Ark interpret the Fourteenth Amendment itself—an entrenched constitutional provision, not a mere statute open to repeal or revision by Congress. Thus, any attempt to abrogate its holding by legislative means faces insurmountable legal barriers. This section explores those barriers through three critical lenses: (1) the distinction between constitutional and statutory law, (2) the division of powers between Congress and the judiciary, and (3) the doctrinal limits on congressional regulation of citizenship.
1. Constitutional Law vs. Statutory Law: A Hierarchy of Norms
The American legal system is hierarchically ordered: the U.S. Constitution sits at its apex. Below it are statutes, administrative regulations, executive orders, and case law. This structure carries with it necessary legal consequences. Constitutional provisions—particularly those interpreted by the judiciary—can only be altered through the amendment process outlined in Article V of the Constitution, which requires supermajoritarian consensus (two-thirds of both Houses of Congress and ratification by three-fourths of the states).
By contrast, federal statutes are the product of ordinary legislation and can be enacted or repealed by simple majorities. When a statute conflicts with the Constitution as interpreted by the Supreme Court, it is void. This is the essence of judicial review, as declared in Marbury v. Madison (1803). The interpretation of the Fourteenth Amendment in Wong Kim Ark is not merely a policy preference but a binding articulation of constitutional meaning.
Therefore, even if Congress were to pass legislation purporting to exclude from citizenship those born on U.S. soil to undocumented parents or temporary residents, such legislation would directly contravene Wong Kim Ark and be presumptively unconstitutional unless the Supreme Court overruled its own precedent—a move that would require radical jurisprudential realignment.
2. Congressional Power and Judicial Authority: The Separation of Interpretive Domains
Congress does possess plenary power over naturalization under Article I, Section 8, Clause 4 of the Constitution, which grants it the authority “to establish a uniform Rule of Naturalization.” However, naturalization is categorically distinct from birthright citizenship. Naturalization governs the acquisition of citizenship after birth; the Citizenship Clause governs who is a citizen at birth. This doctrinal bifurcation has been confirmed repeatedly by courts, including in Wong Kim Ark itself.
The judiciary, not Congress, is the ultimate arbiter of constitutional meaning. While Congress can influence the scope of citizenship through its control of immigration and naturalization procedures, it cannot reinterpret or narrow the Fourteenth Amendment’s guarantee. The rule established in Wong Kim Ark—that virtually anyone born on U.S. soil is a citizen—is a constitutional floor that cannot be lowered by legislative means.
Even during times of national upheaval, such as wartime or mass immigration waves, courts have maintained a clear distinction between legislative power over immigration and the constitutional status of those born within the territory. In short, Congress can legislate under the Constitution, but it cannot legislate the Constitution.
3. The Misuse of “Jurisdiction”: Attempts to Reframe the Clause
Some scholars and political actors have attempted to argue that Congress could reinterpret the phrase “subject to the jurisdiction thereof” to exclude certain categories of people—most notably the children of undocumented immigrants or temporary visa holders. This argument suggests that “jurisdiction” implies not merely being subject to U.S. laws in a general sense, but full political allegiance or mutual consent to citizenship obligations.
However, this interpretation was explicitly rejected in Wong Kim Ark. The Court held that “subject to the jurisdiction” means being subject to the laws and authority of the United States—excluding only children of diplomats, foreign sovereigns, or invading armies. It does not—and cannot—be twisted to mean political desirability or voluntary allegiance, both of which are subjective, unstable criteria.
If Congress were to enact a statute redefining this phrase to exclude children born to noncitizens or undocumented immigrants, it would be directly contrary to the Wong Kim Ark precedent. While proponents of such legislation argue that Congress has the power to clarify ambiguous constitutional text, the problem is that the text in question is not ambiguous within the framework of existing judicial interpretation. The Supreme Court has already spoken.
4. Pathways for Change: Only a Constitutional Amendment Can Prevail
Given the entrenchment of Wong Kim Ark, the only legally valid pathway to altering birthright citizenship is through a constitutional amendment. This would involve:
- Passage by a two-thirds majority in both the House of Representatives and the Senate;
- Ratification by three-fourths of the state legislatures (currently 38 out of 50 states).
This is no small feat, and rightly so. The Fourteenth Amendment emerged from the crucible of the Civil War and the emancipation of millions. Its Citizenship Clause was intended to prevent precisely what anti-birthright movements now propose: the reintroduction of selective, racialized, or political criteria into the definition of citizenship. The burdensome amendment process reflects the gravity of what is at stake.
Any legislative attempt to circumvent this process is not only legally flawed but also normatively dangerous. It invites a future where citizenship—once considered an inalienable constitutional right—is subject to the winds of politics and the prejudices of the moment.
5. Jurisprudential and Democratic Ramifications
To permit Congress to unilaterally redefine birthright citizenship would be to transform one of the most stable and egalitarian elements of American constitutional law into a legislative bargaining chip. It would violate the principle of stare decisis—the doctrine that legal precedent should be respected—and would erode public faith in the impartiality of constitutional protections.
Moreover, it would set a dangerous precedent whereby any unpopular minority group could, in theory, be excluded from the legal definition of citizenship simply because it suited the political climate. This runs contrary to the ethos of the Fourteenth Amendment and to the spirit of constitutional democracy, which is meant to protect rights against the volatility of majority sentiment.
A Constitutional Boundary Not to Be Trespassed
Wong Kim Ark is not a casual policy judgment—it is a constitutional boundary. It reflects a solemn judicial interpretation of the Fourteenth Amendment, forged in the struggle to define American citizenship on the basis of legal principles rather than race, heritage, or political fashion. Congress is bound by that boundary, and any attempt to trespass it through legislation would be constitutionally infirm.
The enduring legacy of Wong Kim Ark is that it affirms a vision of America in which citizenship is not inherited through the privilege of parentage, but earned through birth into the jurisdiction, laws, and responsibilities of a democratic republic. To undermine this through legislative fiat would be not only unconstitutional but unworthy of the ideals the nation claims to uphold.
IV. The Political Push Against Birthright Citizenship
Despite its constitutional grounding, birthright citizenship has come under political assault, particularly in debates about immigration and national identity. Prominent political figures have called for legislative or executive actions to limit citizenship to children of U.S. citizens or lawful permanent residents. Some have proposed bills, such as the Birthright Citizenship Act, attempting to restrict the application of the Fourteenth Amendment.
These efforts are often grounded in the perception that birthright citizenship incentivizes unauthorized immigration and creates “anchor babies” for permanent residence. Yet empirical data suggest such claims are exaggerated, and legal scholars widely agree that such legislation would be unconstitutional under current precedent.
Even if Congress were to pass such a statute, it would almost certainly face swift constitutional challenge and would be struck down under the doctrine of stare decisis—unless a future Supreme Court decides to explicitly overturn Wong Kim Ark, a move that would constitute a radical and controversial departure from long-settled constitutional doctrine.
V. Broader Implications and the Role of the Judiciary
The attempt to legislatively undermine birthright citizenship raises profound constitutional and philosophical questions. Citizenship is not merely a legal label; it is a recognition of membership in the polity, carrying with it rights, protections, and duties. To allow Congress to unilaterally redefine who is a citizen by birth would upend this foundational principle and make citizenship contingent on political discretion—a prospect alien to the constitutional order envisioned by the Fourteenth Amendment.
Furthermore, weakening the birthright principle could produce a permanent underclass of stateless individuals born on American soil but denied legal recognition. This outcome would conflict with international human rights norms and the very ideals of equality and liberty the Fourteenth Amendment was designed to secure.
The judiciary thus plays a critical role in safeguarding constitutional protections against majoritarian overreach. In defending Wong Kim Ark, the courts uphold not just precedent, but the integrity of constitutional interpretation and the meaning of citizenship in a democratic society.
Conclusion
United States v. Wong Kim Ark remains one of the most significant constitutional interpretations of American citizenship. Its affirmation of birthright citizenship stands as a bulwark against the politicization of legal identity. Congress cannot, by statute, overrule this decision without amending the Constitution itself. While political pressures may agitate against birthright citizenship, the constitutional order—and the judiciary’s role in preserving it—requires fidelity to precedent, legal clarity, and the enduring principles of equal membership in the republic.
To tamper with such a foundational tenet is not merely a legal question, but a moral and philosophical one: Who do we choose to include in “We the People,” and on what grounds? If the answer can be altered by statute, then the meaning of citizenship itself becomes subject to the vicissitudes of politics—something the framers of the Fourteenth Amendment sought precisely to prevent.
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