Wednesday, November 10, 2021

How America Became American

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)

Amanda Frost 

Today, a child born in the United States is a U.S. citizen, period.  Unlike France, Germany, England, and many other countries, American citizenship is bestowed by birth on U.S. soil, regardless of the parents’ immigration status or the child’s length of residency.  (The only narrow exception being for the children of diplomats).  How did the United States come to adopt and keep (so far) birthright citizenship—a legal rule that historian Eric Foner has extolled as the “good kind of American exceptionalism”?  In their essential new book, American by Birth: Wong Kim Ark and the Battle for Citizenship, co-authors Carol Nackenoff and Julie Novkov answer that question.  

American by Birth seamlessly weaves together history, policy, law, and politics to tell the fascinating tale of how we got here.  The cover art and subtitle suggest that the narrative is centered on United States v. Wong Kim Ark, the 1898 case in which the Supreme Court held that the Fourteenth Amendment guarantees citizenship to all born in the United States.  But in truth the book is much broader than that one legal battle. Nackenoff and Novkov have produced a much-needed, sweeping historical and intellectual history of a bedrock constitutional principle. 

I will begin by describing the book’s many strengths, in particular its investigation of the relationship between anti-immigration sentiment and opposition to birthright citizenship.  I conclude with a few questions that I hope that Nackenhoff and Novkov will explore in their response, and that may also provide a jumping off point for citizenship scholars who seek to build on their work.

The book begins by describing the conflict between the common law concept of citizenship based on birth on a nation’s soil—also known by the Latin term jus soli—and the citizenship of free backs in the antebellum era.  Remarkably, the US Constitution of 1787 did not define citizenship, leaving many aspects of that status up to the states. In the first half of the nineteenth century, disputes over the citizenship of free blacks became one of many points of contention between free and slave states leading up to the Civil War.  The debate came to a head in Dred Scott v. Sandford, when Chief Justice Roger Taney declared not only that Congress could not ban slavery, but also that no black person, free or slave, was a citizen of the United States. 

            Nackenoff and Novkov then broaden the discussion beyond that history, delving into the connection between immigration policies, birthright citizenship, and race and xenophobia.  The Page Act of 1875 and the Chinese Exclusion Act of 1882 not only barred most Chinese immigrants from entering the United States, the latter law also prohibited Chinese immigrants in the United States from naturalizing.  (Shockingly, that bar was not lifted until 1943).  The authors build on Lucy Salyer’s and Erika Lee’s scholarship to describe the extraordinary legal effort mounted by the Chinese community to fight these laws.  Chinese interest groups in the United States funded thousands of individuals cases in the federal courts, often prevailing against the government.  Although the NAACP is better known for its litigation strategies to protect civil rights, Nackenhoff and Novkov point out that the Chinese did it first. 

            Thanks to Lee’s and Salyer’s work, I was already aware that the Chinese community in the United States successfully organized and funded federal litigation challenging the Chinese Exclusion Act.  But it was only in reading Chapter 3 of American by Birth that I realized how profit drove much of this litigation.  The railroads funded some of these cases because they relied on cheap labor from Chinese immigrants.  Lawyers took on these cases for high fees ($100 per case, a windfall for a lawyer in the 1880s).  Even the federal court system benefitted financially through fees charged by clerks, district attorneys, US Marshals, and interpreters.  As Nackenoff and Novkov explain, such “[m]aterial interests may help explain why the cases kept getting to court in the early years of [immigration] restriction, and why cooperation of some federal officials, essential to the Chinese campaign in the earliest years, was forthcoming.” 

            The book also shines in its description of the political, historical, and legal context leading up to the Supreme Court’s decision in United States v. Wong Kim Ark.  The U.S. government took the aggressive position that the Fourteenth Amendment’s birthright citizenship guarantee did not apply to the children of noncitizens.  The citizenship clause provides: “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.”  The Solicitor General of the United States argued before the U.S. Supreme Court that children of noncitizens were not “subject to the jurisdiction” of the United States because they owed allegiance to their parents’ country.  The government intended to deny citizenship to the children of Chinese immigrants, but its argument went far beyond any one group. Had the government won, it would have stripped citizenship from all children of noncitizens—hundreds of thousands of people who had always thought of themselves as American, and who now would no longer be able to vote, hold elected office, or even have the right to remain in the United States.  (Recognizing the potential for this case to cause political havoc, the parties agreed to postpone the oral argument until after the 1897 election.)

            The last two chapters of the book extend the discussion beyond Wong Kim Ark’s case to the present day and the ongoing global debate over birthright citizenship.  The authors convincingly argue that increased immigration flows often lead to restricted birthright citizenship policies.  France, Ireland, and England all limited birthright citizenship in the wake of an influx of immigrants at the end of the twentieth century.  The current debates in the United States about whether to abandon birthright citizenship are closely related to a rise in immigration.  Nearly every paragraph of these chapters contained some fact or insight I found worthy of highlighting or underlying.  (Credit should go as well to Marit Vike, who is listed as a contributor to this chapter).

            This book succeeds in providing a concise and insightful history of birthright citizenship, draws interesting connections between immigration and citizenship policy today.  As with any good work of scholarship, however, it left me with questions for future research. 

One lingering mystery is why Congress did not try to limit derivative citizenship in the wake of Wong Kim Ark.  By federal statute, the children of U.S. citizens were (and are) also automatically U.S. citizens at birth, even when those children are born abroad.  Derivative citizenship significantly expanded the impact of the Court’s decision Wong Kim Ark.  Like Wong, many U.S. citizen men of Chinese ancestry were forced by anti-miscegenation laws to return to China to find wives and start families.  Many of these children eventually sought admission to the United States on the ground that they, too, were U.S. citizens, just as Wong’s children did.  U.S. government officials loudly bemoaned the influx of these foreign-born citizens, but Congress never amended the law to exclude this group from citizenship.  The U.S. Congress had no problem enacting racially restrictive naturalization policies well into the twentieth century, so it remains a mystery why it did not restrict derivative citizenship by race, ethnicity, or other grounds in the wake of the government’s loss in Wong’s case.

            Another open question concerns how Wong Kim Ark affected immigration policy.  The authors write that after the Court’s decision, “keeping undesirable immigrants out in the first place became even more important to the efforts to shape membership in the polity.”  That insight is surely correct.  It is the flip side of the more common observation that increased immigration flows creates pressure to restrict birthright citizenship. In future scholarship, I hope the authors (and others) will explore this observation in more depth, perhaps through additional archival evidence describing how government policymakers sought to use immigration law to undermine the anti-caste goals of the Constitution’s birthright citizenship guarantee.  As American at Birth makes powerfully clear, the battle to control citizenship did not end even after the Court’s decision in Wong Kim Ark supposedly put it to rest.  In fact, it continues to this day. 

Amanda Frost is Ann Loeb Bronfman Professor of Law and Government, at American University. You can reach her by e-mail at


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