Balkinization: The Unsettledness of Who Can Become a Citizen

The Unsettledness of Who Can Become a Citizen

Sandy Levinson

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).

Consider Chief Justice Warren’s laconic statement in Loving v. Virginia (1967), “Over the years, this Court has consistently repudiated ‘[d]istinctions between citizens solely because of their ancestry’ as being ‘odious to a free people whose institutions are founded upon the doctrine of equality.’ Hirabayashi v. United States, 320 U. S. 81, 100 (1943).” Much could be said about this, but for purposes of this review, it perhaps suffices to say that this is simply one more instance of the fact that justices of the Supreme Court, including its liberal heroes, are all too often an entirely unreliable narrator about the American past. For the Court, every day is “Constitution Day,” with the consequence that all opinions have ultimately to be upbeat, reassuring their readers (who, as a matter of fact, may be most likely to be law professors and their students) that the American past is worth cherishing and the Constitution worth preserving. But, of course, Warren’s statement, to be blunt, is a lie. One literally cannot understand the American past without paying due attention to “distinctions” based on “ancestry.” Perhaps Warren could attempt to save his point by emphasizing the word “citizens.” Among other things, of course, that reminds us of Dred Scott, which ruled that Blacks were simply barred from membership in the American political community as citizens. But even after the "new day" of the Reconstruction Amendments, African-American citizens were often treated horrendously unequally—and the Supreme Court almost as often legitimated these inequalities, either by claiming that "separate" fullfilled the condition of "equality" or by accepting the legitimacy of purportedly "non-racial" classifications, such as literacy, that just happened to be administered disproportionately against would-be African-American voters.

And, of course, one can be confident that the former governor of California was fully aware of the fact that even after Dred Scott was overruled by the Fourteenth Amendment and the Naturalization Act modified to include the possibility of immigrants from Africa becoming citizens, the bar on Asians becoming citizens remained an important part of American statutory and constitutional law until World War II and its aftermath. Might Warren also have remembered the displacement of Japanese resident aliens and Japanese-Americans into concentration camps, which he avidly supported while Attorney General of California? There is obviously a grotesque irony in citing Hirabayashi for his exuberant premise given that the Court upheld a curfew imposed exclusively on those of Japanese descent.

Carol Nackenoff’s and Julie Novokov’s American by Birth: Wong Kim Ark and the Battle for Citizenship is the rare example of a book that delivers more than the title (and the blurbs) may lead the reader the expect. Especially because the book is being published by the University Press of Kansas, which has published an excellent group of books that focus very explicitly on important cases in American constitutional law, I expected to read a book that similarly focused only on the important case involving Wong Kim Ark. Decided in 1898, it held, by a 6-2 vote, that children of Chinese immigrants, even if the parents were in fact disallowed from becoming American citizens by American law, nonetheless became American citizens by virtue of having been born within the United States, in his case, and not surprisingly, San Francisco. But the book in fact reaches well beyond the specific facts of the case; it is wonderfully informative about the general topic of Chinese immigration, the almost relentless discrimination Chinese immigrants, and the passage of legislation that attempted to shut the door to any further Chinese presence--and, most certainly, to the prospect of naturalization of those Chinese who had been granted permanent residence in the United States. And the last chapter offers a comprehensive overview of the continuing controversy about birthright citizenship where almost all aliens, and not only those from Asia, are the subject of acrimonious attention.

The broader focus is understandable inasmuch as Chinese immigrants were merely part of the larger subset of non-Caucasians or Asians. A thoroughly racist unanimous decisions by the Supreme Court in the 1920’s, obviously joined by Holmes and Brandeis, included even “Caucasian” Brahmins from India within the category forbidden to become naturalized because, as Justice Sutherland told us, what the United States really wanted to do was to confine immigration to Europeans and, as the 1924 law restricting immigration demonstrated, preferably northern (and Protestant) Europeans. These exclusionist laws presented no constitutional problems. Thanks thanks to Justice Field’s unanimous opinion in the aptly named Chinese Exclusion Cases of 1889, a basic attribute of America’s “sovereignty,” whether or not specified in the text of the Constitution itself—it was not—was the ability to declare, without constitutional limits, whom it wished to admit or refuse admission to the United States. Aliens wishing entry into the United States apparently have no genuine rights to be treated fairly that the United States is bound to respect.

One might lament that, but to deny it is simply to misunderstand “who we are” as a polity endlessly fighting over who exactly constitutes (or should constitute) “we the people” who ostensibly are the foundation of the United States of America (assuming, of course, one doesn’t view “sovereignty states” as the foundations). As Rogers Smith argued many years ago in his magnificent book Civic Ideals, what Louis Hartz called the “liberal tradition in America,” which would seem to focus almost exclusively on a given ideology and the willingness to accept its premises, is accompanied by a much more illiberal “ascriptive” tradition that makes “Americanness” a function of ancestry and attributes that are presumptively linked to such ancestry.

I have argued for several years, for example, that a central troublesome text in American political thought is Federalist 2, written by New Yorker John Jay as part of the propaganda to encourage adoption of the new Constitution. Jay takes great “pleasure” in

tak[ing] notice that Providence has been pleased to give this one connected country to one united people--a people descended from the same ancestors, speaking the same language, professing the same religion, attached to the same principles of government, [and] very similar in their manners and customs…. This country and this people seem to have been made for each other, and it appears as if it was the design of Providence, that an inheritance so proper and convenient for a band of brethren, united to each other by the strongest ties, should never be split into a number of unsocial, jealous, and alien sovereignties.

It takes relatively little knowledge of American history to realize that this vision of providential similarity is pernicious nonsense, and one suspects that Jay, by all accounts a very smart man, knew this. But he also knew that creating a new “consolidated” government would require the belief that we were, as stated in the Declaration of Independence, one people, living in what is now Maine down to the southern border of Georgia and going westward at least to the eastern bank of the Mississippi River. It would be awkward, to put it mildly, to concede that we were instead a myriad of quite different peoples, speaking different languages and professing different religious views, not to mention the presence of many peoples wrested from their native continent to be brought to the New World as enslaved persons and Indigenous Nations who most certainly did not view themselves as part of the new country predicated on conquering their lands and destroying their cultures.

As already suggested, it took a full 175 years for the formal law of American citizenship to remove the stain of ancestry-based bigotry. Now, of course, many of those debates have been transferred to arguments about immigration itself, particularly involving the category of the “illegal” immigrant or, as most of “us” would prefer, “undocumented immigrants.” One cannot possibly understand American politics of this century without paying full attention to the various clashes about who indeed is fit to be invited to enter our country and then to become a citizen. And, not surprisingly, part of the current debate concerns the central issue of Wong Kim Ark, the status of children born to those who are not now—and, possibly, could not never become—citizens of the United States. It has become a mantra of many among the modern Republican Party that Wong Kim Ark was either simply wrongly decided or, if rightly decided as an interpretation of the Fourteenth Amendment, substantively “stupid” and meriting formal repeal by a constitutional amendment that would firmly bar citizenship to any child born in his particular circumstances. If, as widely predicted, Harvard Law School-educated Arkansas Senator Tom Cotton runs for the presidency in 2024, one can assume that part of his platform will be the delegitimation of Wong Kim Ark. He might well argue that. Congress has itself the plenary power to reverse the decision, at least with regard to “undocumented” aliens insofar as Wong Kim Ark himself was the child of a couple whose presence in the United States was clearly accepted by the United States, even if they were forbidden to become citizens themselves. As Nackenoff and Novkov, point out, the category of “illegal aliens” was almost a null set at the time of the Fourteenth Amendment itself; it was, by and large, anti-Chinese sentiment that led to the development of the category and the beginning of an administrative apparatus devoted to ferreting out those unwelcome in our country.

So one important question treated by the book is how and why such a liberal decision was reached by the 1898 Court, which was, as the Court of Plessy and then three years later in The Insular Cases, scarcely a bastion of liberalism and sensitivity to the plight of "Others." One fascinating aspect of the story is the role played by the Six Companies in San Francisco, the principal elite organization there among Chinese merchants, and a variety of first-rate (non-Chinese) lawyers who, for a mixture of reasons, provided Chinese defendants with excellent representation. In addition to ideological liberalism, another motivation for some might well have been the traditional support by capitalist interests of essentially open borders because this was thought to be a guarantee of cheap labor (and an opportunity to thwart labor unions, which were often supportive of immigration restrictions). So it should occasion no surprise that there was a de facto alliance between the Six Companies and Leland Stanford’s Southern Pacific Railroad, inasmuch as the western railways were largely built by Chinese laborers.

In any event, for whatever reason, the Court did rule in favor of Kim Ark (as he is referred to most often throughout the book, since Wong is his family name), though Chief Justice Fuller and John Marshall Harlan both dissented, adopting rhetoric reminiscent of Jay’s in Federalist 2; the Chinese were basically a people who chose to set themselves apart and could never truly be assimilated within the larger American people. Harlan had, incidentally, first professed these views in his dissent in Plessy, distinguishing the Chinese from the basically assimilable population of African American for whose civil rights Harlan was so commendably concerned. "Color-blindness" apparently did not mean an indifference to cultural differences.

In a brilliant essay examining the rapidity with which Texas's arguably unconstitutional admission to the Union was accepted, Mark Graber suggested that constitutional issues become truly settled in the United States if and only if the losers genuinely give up, as was the case with those who objected to the process by which Texas was brought into the United States. Graber's point, though, is stunningly obvious with regard to abortion. Many of us have learned that the “New Deal Settlement” concerning congressional power and the administrative state, which we learned about in law school or in more general courses at least into the late 1980s, is certainly under relentless attack at present. Who really knows what the Supreme Court would rule should Republicans in fact triumph in 2024 and Cotton (or Trump) gets to replace Steven Breyer with a more compatible hard-right winger? The concluding chapter American by Birth offers an extremely illuminating overview of the extent to which it might be foolish to view Wong Kim Ark, whatever its age, as being truly “settled.”

Indeed, as Nackenoff and Novkov note, one of the most important attacks on it was leveled back in 1985 by Peter Schuck and Rogers Smith in their book Citizenship without Consent: Illegal Aliens in the American Polity. They argued that at the very least the American government, presumably representing “the people,” must consent to the presence in the country of those giving birth, and by definition this is not the case with “illegal” or “undocumented” aliens (even if, as a matter of fact, most “undocumented” aliens appear to have entered legally but then overstayed their visas). In any event, it should be clear that the issues raised by Wong Kim Ark are both practically and theoretically important. Although the United States is not truly “exceptional” in allowing a capacious notion of birthright citizenship, it is part of a diminishing group of countries; many others, including, notably, Great Britain, are tightening up their immigration and naturalization laws in response to the contemporary influx of immigrants (many of them fleeing intolerable situations in their home countries).

It is worth noting, incidentally, that those viewed as “conservatives” might be interestingly split on the issue raised by Wong Kim Ark. A “libertarian constitution” drafted for the National Constitution Center by the Cato Institute’s Ilya Shapiro and others very explicitly included a clause basically requiring open borders. Nackenoff and Novkov quote John Yoo, himself the son of immigrants from Korea, as writing that “Conservatives should reject Trump’s nativist siren song and reaffirm the law and policy of one of the Republican Party’s greatest achievements: The 14th Amendment. According to the best reading of its text, structure, and history, anyone born on American territory, no matter their national origin, ethnicity or station in life, is an American citizen.” It is no longer clear that Yoo speaks for (or perhaps to) “conservatives” who have become far more ascriptive and illiberal in their own notions of what counts as “Americanness” and, consequently, who is capable of becoming a “true American.” But it is also true that “liberals” are basically tied in knots about what America’s immigration policy should be in the 21st century, and this inevitably raises the question of the status of those born to those that even liberals might agree enter the country without invitation.

Moreover, to the extent that the debate concerns who can become a citizen, political liberals in particular may have to contend with the possibility that their own frequent emphasis on “universal human rights” may serve to diminish the importance of citizenship as a foundational category. To the extent, for example, that one emphasizes the parts of the Fourteenth Amendment that speak of “persons” rather than “citizens” (as does the Privileges or Immunities Clause), then one is entitled to ask if citizenship as a category might be outmoded. This might be especially true for those who view the nation-state itself as an outmoded category, whether because one fears the cultural integralism often connected with the term “nation” or because of the sheer fact that solving the profound problems of our own time will obviously require trans- and international solutions.

American by Birth, although relatively slender in terms of pages, is extremely rich in terms of the issues it puts forth. It deserves wide readership and discussion, precisely because it is not simply a work of legal history, but also an entry-point into a decidedly unsettled aspect of our contemporary political debate that might well end up in a full-scale reconsideration of Wong Kim Ark.

Posted 9:30 AM by Sandy Levinson [link]