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Balkinization Symposiums: A Continuing List                                                                E-mail: Jack Balkin: jackbalkin at yahoo.com Bruce Ackerman bruce.ackerman at yale.edu Ian Ayres ian.ayres at yale.edu Corey Brettschneider corey_brettschneider at brown.edu Mary Dudziak mary.l.dudziak at emory.edu Joey Fishkin joey.fishkin at gmail.com Heather Gerken heather.gerken at yale.edu Abbe Gluck abbe.gluck at yale.edu Mark Graber mgraber at law.umaryland.edu Stephen Griffin sgriffin at tulane.edu Jonathan Hafetz jonathan.hafetz at shu.edu Jeremy Kessler jkessler at law.columbia.edu Andrew Koppelman akoppelman at law.northwestern.edu Marty Lederman msl46 at law.georgetown.edu Sanford Levinson slevinson at law.utexas.edu David Luban david.luban at gmail.com Gerard Magliocca gmaglioc at iupui.edu Jason Mazzone mazzonej at illinois.edu Linda McClain lmcclain at bu.edu John Mikhail mikhail at law.georgetown.edu Frank Pasquale pasquale.frank at gmail.com Nate Persily npersily at gmail.com Michael Stokes Paulsen michaelstokespaulsen at gmail.com Deborah Pearlstein dpearlst at yu.edu Rick Pildes rick.pildes at nyu.edu David Pozen dpozen at law.columbia.edu Richard Primus raprimus at umich.edu K. Sabeel Rahmansabeel.rahman at brooklaw.edu Alice Ristroph alice.ristroph at shu.edu Neil Siegel siegel at law.duke.edu David Super david.super at law.georgetown.edu Brian Tamanaha btamanaha at wulaw.wustl.edu Nelson Tebbe nelson.tebbe at brooklaw.edu Mark Tushnet mtushnet at law.harvard.edu Adam Winkler winkler at ucla.edu Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts Children of Wong Kim Ark
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Monday, November 15, 2021
Children of Wong Kim Ark
Guest Blogger
For the Symposium on Carol Nackenoff and Julie Novkov, American by Birth: Wong Kim Ark and the Battle for Citizenship (University Press of Kansas, 2021). Bethany Berger I am the daughter of a birthright citizen
born to an illegal immigrant. My
paternal grandfather came to New York before Congress blocked most migration from
Eastern and Southern Europe in 1924. But
when my grandmother, a cousin from the same stetl in Galicia, came here, she
did so illegally. My grandparents
married in 1926, and my father was born in 1927, the year Congress capped all
immigration at 150,000 annually. In the
1930s, as Adolf Hitler rose to power overseas, my grandparents decided to
secure her immigration status. My
grandmother traveled to Canada with my father, staying with family there for a
year until she could reenter legally as my grandfather’s wife. Over the next decade, my grandparents wept
learning of the deaths of relatives who remained in Europe, and opened their
Staten Island home to those who managed to escape. As with Wong Kim Ark, their story is one
of migration as part of a network of transnational family links, sometimes on
the right side and sometimes on the wrong side of the law. Although these
new details add to our understanding of Wong’s life, perhaps the greater
contribution of American by Birth is to bring together the ways his
struggle intersects with centuries of efforts to use citizenship and
immigration policy to control U.S. law and identity. Nackenhoff and Novkov start this examination with
Calvin’s Case, the 1608 English effort to determine the status of
Scottish citizens in an expanding Great Britain, and conclude with
former-President Trump’s promise (thankfully, broken) to end birthright
citizenship. In between they survey the
antebellum struggle over citizenship of Black Americans, debates over residents
of island territories like Puerto Rico, Guam, and American Samoa, and the many
and complex ways federal law has restricted who can come to the United States
and how since the 1870s. Through this
examination, American by Birth shows both the racial particularity of
Wong Kim Ark’s story and how we are all, in some sense, children of Wong Kim
Ark. First, as
Nackenhoff and Novkov show, the story of Wong Kim Ark and other immigrants of
color is different in many ways from those of White immigrant families. It is true that both federal law and local
practices discriminated against Jewish families like my father’s: the national
origin quotas in the 1924 Immigration Act targeted Jews and Italians for
exclusion; and my grandfather’s Staten Island candy store was pelted with
tomatoes and my father called mazzochristo (Christ-killer) by Italian
American neighbors. But federal immigration restrictions were founded to exclude
Chinese, and excluded virtually all non-citizen Asians between 1917 and 1947. In contrast, federal law placed almost no restrictions
on White immigration before the 1920s, and even after never barred any White national
or ethnic group altogether. Equally
important, my grandfather could become a naturalized citizen, something denied
to Asians until 1952. This meant that as
his wife, my grandmother could re-enter the country legally. Naturalized immigrants could also vote, so politicians
had to consider their wishes whatever they thought of their fitness for citizenship. Further, my grandparents’ otherness was less
clearly marked by their appearance.
Antisemitic neighbors might threaten to turn my grandmother in to
immigration authorities, but once their citizenship was established, it is
unimaginable that authorities would have arrested and detained them simply
because of how they looked. Yet this
happened to Wong Kim Ark even after his citizenship was affirmed by the U.S.
Supreme Court, and happens daily to Latino U.S. citizens in the Southwest. In another
sense, however, we are all children of Wong Kim Ark. As Novkov and Nackenhoff point out, although
birthright citizenship is rare in most of the world, is it common throughout
the Americas. They note that this partly
reflects our shared history as settler colonial nations, because an expanded
citizenry helped displace Indigenous sovereigns. It also, however, reflects our shared history
as immigrant nations. This shared history
shows why birthright citizenship in the U.S. is importantly different from that
affirmed by the King’s Exchequer in Calvin’s Case. In their thoughtful 1985 book, Peter
Schuck and Rogers Smith pointed to Lord Coke’s reliance on involuntary
subjection to the King to support their argument that democratic principles
required mutual consent for citizenship, rather than simply birth on the soil
of the sovereign. But birthright
citizenship has a vastly different meaning here than it did in
seventeenth-century England. Calvin’s
Case was decided when England was just becoming an imperial power,
absorbing other territories without their consent. Although the U.S. has its own grim colonial
history, birthright citizenship here means inclusion as partners in a shared political
project. Except with regard to Indigenous
peoples, it is the antidote to involuntary subjection, not the source of
it. What is more,
this distinctly U.S. context means that restrictions on birthright citizenship undermine
our democratic project. The ideal and reality of the United States depends on
attracting new people and incorporating them not as subject laborers but as partners
in building a democratic nation. The continued attractiveness of the U.S. to
those from other countries—whether Chinese supporting transnational families,
Central Americans fleeing gang violence, or Jews fleeing pogroms—reflects our
success in this shared project. And this
success means that efforts to close our borders will never succeed. They will instead, redouble efforts to
exploit loopholes in law and enforcement.
If exploiting
these loopholes is successful (as it was for my family and Wong’s), it can create
new citizens who can fully share in the democratic project. My father volunteered at age 17 to fight in
World War II, and later helped the ACLU litigate for constitutional rights.
Wong Yuk Jim, who migrated to the U.S. as Wong Kim Ark’s youngest son (but may
in fact have been his grandson), was drafted in the same war, then served the
U.S. for decades as a sailor for the Merchant Marines. But denying legal status does not make the
migrants disappear. Instead, it creates
what Mae Ngai called “impossible subjects,” undocumented residents who live,
work, and form families in the United States, without the security and shared
rights that citizenship provides. The
laws creating this status both undermine our national project, and betray the
legacy of Wong Kim Ark.
Bethany Berger is Wallace Stevens Professor of Law at the University of Connecticut School of Law. You can reach her by e-mail at bethany.berger@uconn.edu.
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