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.

In American by Birth, Carol Nackenhoff and Julie Novkov expose the links between Wong Kim Ark’s story and many American stories.  The book builds on a series of recent revelations about Wong’s life.  My 2016 article, Birthright Citizenship on Trial: Elk v. Wilkins and United States v. Wong Kim Ark, showed that when the U.S. barred Wong from reentering the U.S. in 1895, he already had a wife and child in China, and that his citizenship allowed his children to migrate to the United States as well.  In 2017, Beatrice McKenzie’s book chapter, To Know a Citizen: Birthright Citizenship Documents Regimes in U.S. History, provided a more detailed examination of the immigration records of Wong and his children, showing that Wong had worked as a cook since he was eleven, and was challenged and only reluctantly admitted on his 1890 return to the United States.  In January 2021, Amanda Frost’s book You Are Not American: Citizenship Stripping from Dred Scott to the Dreamers, included a chapter on Wong Kim Ark with yet more revelations.  First, even after Wong’s Supreme Court victory, he was arrested and imprisoned in Texas on suspicion of unlawful status.  Second, the man admitted as Wong’s second son, Wong Yuk Sue, later confessed to being a “paper son,” one who entered on false claims of relationship.  (Ironically, the U.S. had earlier barred Wong’s eldest, Wong Yuk Fun, for whom we have much evidence of Wong’s parentage, from entry as a fraudulent paper son.)  Novkov and Nackenhoff contribute to the increasingly rich picture of Wong’s life by noting that although Wong’s father was classified as a “merchant”—conjuring images of wealth and prosperity—he was a butcher who did not own the store where he worked.  They also show how challenges to Chinese exclusion shaped not only the law but legal institutions, involving many thousand dollars in court fees and retainers, and involving attorneys representing business interests as well as those devoted to the Chinese cause. 

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


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