Response from Carol Nackenoff and Julie Novkov

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). 

Carol Nackenoff and Julie Novkov

We are extremely grateful to all the guest bloggers for the Symposium on American by Birth: Wong Kim Ark and the Battle for Citizenship (University Press of Kansas, 2021).  We deeply appreciate the generosity, kind words, care, and attention given to our work. The excellent questions raised show how fertile a field this is for scholars to till.

A few years ago, David Congdon, now the Senior Editor at Kansas, told us it was a high priority of his to issue a book on United States v. Wong Kim Ark for the Landmark Law Cases and American Society Series, and asked us if we would consider writing it.  We had, at that point, co-authored an article in Polity that looked at Chinese immigration cases through the lens of place within the family and family status within exclusion-era immigration law. We were also working on what would become a chapter in Stating the Family (2020) on what struggles between federal courts and administrative agencies over Chinese exclusion revealed about state development. We agreed to take on Wong Kim Ark but felt that the story of Chinese exclusion should be placed in a somewhat wider framework that looked at othering in the context of citizenship and that brought birthright citizenship controversies up to the present.

The University Press of Kansas is publishing two versions of American by Birth. The one currently available is the lengthier version that includes two chapters on developments in racial/ethnic exclusion and in citizenship following upon the Wong Kim Ark case, along with our footnotes and discussion of many scholars on whose work we depended.  The Landmark Law Cases and American Society version of American by Birth, due out around the end of this year, follows the series’ prescribed format and structure; there will be a bibliographic essay in lieu of footnotes and given its purpose, we were asked to remove mention of most scholars from the text itself.  We also condensed the final two chapters into one and eliminated the discussion of recent developments in birthright citizenship elsewhere in the world to make for a shorter and more focused presentation.

One regret we have—and Amanda Frost was very gracious in not dwelling on these particular shortcomings—is that some of our crucial research took place during COVID-19 lockdowns, which hampered our ability to get at some biographical material. Court records stipulate some of Wong Kim Ark’s background, but this information is cursory and may even misstate the year of his birth. While we had some electronically-available archival data, including some of the interviews with Kim Ark and one or another of his sons conducted by immigration officials trying to ferret out paper sons, Amanda herself, in her wonderful new book, You are Not American: Citizenship Stripping from Dred Scott to the Dreamers (Beacon Press, 2021) discovered some details that we did not. For instance, the third “son,” who came to the United States as Wong Yook Sue, was not related to Wong Kim Ark in any way—he was a paper son, who admitted to the ruse during an INS Chinese Confession Program in 1960! Responsibility for omissions and mistakes is our own.

Frost  encourages further exploration to uncover the meaning of what Congress did and did not do during the Chinese exclusion period, when legislators repeatedly and aggressively sought to close off access to the United States by individual Chinese. She raises a fascinating question:  why did the overwhelmingly anti-Chinese majority in Congress never attempt to regulate derivative citizenship, that is, automatic U.S. citizenship for children born abroad to an American citizen father and a Chinese mother who had never lived in the U.S.? The history of congressional action on married women’s citizenship from the late 19^th to early 20^th centuries offers an interesting comparison.  Congress clearly believed itself to have the authority to remove citizenship even from individuals born as citizens if they, as women, married non-citizens. Did paternity simply transcend race thinking? We suspect that if Congress had believed itself to have the power to legislate, it would have done so, but we would welcome further work to try to understand the presumed limits on legislative authority during this period.

Frost further observes the tension between the anti-caste nature of birthright citizenship and the congressional and administrative efforts to reinforce whiteness in early twentieth-century American citizenry. We agree that the agenda of fostering and reinforcing whiteness warrants more attention. We would further encourage explorations that cross both policy domains (e.g., immigration and naturalization, congressional policies affecting Cuba, Puerto Rico, Hawaii, and the Philippines,) and examine state and local racial regulations alongside federal policy (e.g., segregation, anti-miscegenation) in order to understand how policymakers sought in multiple arenas and at multiple levels to build and maintain a white state.

Researching this book, we were impressed by the extent of legal mobilization on behalf of ethnic Chinese cooks and laborers.  We appreciate Mark Graber’s imagery linking cause lawyering on behalf of those seeking to enter or remain in the U.S. to trench warfare: many habeas battles were more like small, case-by-case skirmishes.  And even the more decisive battles, such as that involving Wong Kim Ark, left Kim Ark and at least several thousand others born in the United States, still facing a documents regime that was structured with the presumption they did not belong. Just recently, Tian Atlas Xu filled in more of the story of these immigration attorneys’ work in “Immigration Attorneys and Chinese Exclusion Law Enforcement: The Case of San Francisco, 1882-1930,” in the Journal of American Ethnic History 41 (Fall 2021).

There are, indeed, parallels between the trench warfare lawyering waged on behalf of ethnic Chinese and the work of immigration lawyers dealing with deportations, the consequences of Trump-era family separation policies, and asylum claims today.  As Maureen Sweeney points out and as Rogers Smith has been claiming for years (though we did not give Civic Ideals due credit), ascriptive illiberalism is alive and well, including in U.S. immigration policies and practices. Race and ethnicity continue to matter long after the quota system in U.S. immigration policy was abandoned. Even those who are citizens are frequently mischaracterized as alien, a pattern Mae Ngai calls “citizenship nullification.”  It is clear that not even all citizens enjoy equal treatment. As Sandy Levinson notes in his blog post, who “we” are as a people has a great deal to do with ancestry. And we agree with him that to understand American politics for the last century or more now, we must pay close attention to clashes about who is seen fit to enter the country and then become a citizen.  One 21^st century political party has ratcheted up attacks on “illegals” and some leaders of that party would like to revisit birthright citizenship; a number of Americans endorse these proposals uncritically.

Levinson goes further, calling into question the continued utility of citizenship as a mechanism to extend liberal rights within national contexts. While we agree that “solving the profound problems of our own time will obviously require trans- and international solutions,” we remain troubled by the rise of nationalist-inclined populism in the United States and elsewhere and its potential implications for questioning or restricting citizenship claims. In a world increasingly struggling to accommodate individuals displaced by conflicts and by climate-caused or -exacerbated disruptions, maintaining liberal citizenship, refugee, and asylum policies where they exist is crucial, and policies that increase the risk of statelessness are potentially highly dangerous.

Robert Tsai is clearly correct that it is important to locate Chinese removals in a broader spectrum of methods for controlling unwanted populations. These methods included violence and intimidation, and Tsai notes Beth Lew-Williams’ searing account of anti-Chinese violence in the late nineteenth century.  Methods of controlling unwanted populations also included attempting to bar the Chinese from property ownership and certain employments; they also included cutting off most female migration, with the hope that the Chinese would go home or die out.  District court judge Lorenzo Sawyer wrote in 1886 that if a Chinese man came here and did not bring a wife, eventually he would die off like a worn-out steam engine; as a machine, he would not leave a bunch of children to fill his place.  In the final two chapters, we try to make the case that if the U.S. could not prevent those who were born in the U.S. from being citizens by birth, alternative routes such as policing borders and preventing entry of those who might give birth to undesirable citizens would have to substitute. Tsai points out that judicial settlements of fundamental disputes, such as Wong Kim Ark, often redirect the controversy into policy spaces, and sometimes in undesirable ways.  Battles over border policy and the provision of resources to children of undocumented migrants become proxy fights over belonging.  This seems to us a productive way to frame examination of skirmishes and battles in the aftermath of a Court decision that seemingly faced rather little by way of direct challenge. These were battles, in Bethany Berger’s terms, to control U.S. identity.  Sandy Levinson reminds us that Mark Graber has argued in another context that constitutional issues in the U.S. become fully settled if and only if the losers actually give up. Something that appeared settled for a long time (the New Deal settlement) can be problematized and controversial again.  We may be seeing something similar with regard to birthright  citizenship in the 21^st century (thus Mark Graber’s analogy between Wong Kim Ark and a baseball double rather than a home run).  We still suspect the decision itself is likely to stand, though the matter of children of unauthorized entrants may delimit the holding from 1898.   

Rogers Smith’s comments are quite generous, especially because we disagree with the reading of how the 14^th Amendment and Elk v. Wilkins bear on the question of where the power to establish the rules of birthright citizenship ultimately lies.  Since we discuss this in American by Birth, we will not rehash our reasoning here.  But in the blog post, Rogers Smith takes issue with the use we make of Calvin’s Case and suggests that more attention should be devoted to “how the American Revolution posed fundamental challenges to the English common law doctrine of birthright citizenship and its doctrine of perpetual allegiance, in ways that shaped many of the subsequent developments the book examines.”  Smith points out that birthright citizenship offered a solution to the problem of involuntary submission to a sovereign in 1608. He then argues (correctly) that the American Revolution fundamentally rejected the doctrine that subjects owed an unbreakable, perpetual allegiance to the sovereign who protected them at birth.  [A full-scale rejection of a perpetual allegiance doctrine, however, seems to undercut nineteenth century arguments that the Chinese could not be U.S. citizens because they owed perpetual allegiance to the Emperor of China (an allegiance the Emperor claimed)]. Early American courts sometimes grappled with the differences between early seventeenth century England and post-Revolutionary American citizenship, but they nevertheless treated Calvin’s Case as an appropriate common-law precedent that could be relied upon in addressing citizenship issues that arose in the early decades of the new nation. We do agree with Smith that our analysis could have been enriched by incorporation of expatriation and its significance in antebellum citizenship concerns. We note, however, that the strong form of birthright citizenship endorsed prior to the Fourteenth Amendment served the interests of a settler colonialist state. Bethany Berger, who has also studied this history carefully, thinks of birthright citizenship in the United States as “inclusion as partners in a shared political project” and that, except for Native Americans, birthright citizenship was the “antidote to involuntary subjection, not the source of it.”

Berger’s discussion further underlines how citizenship and immigration policy served as important locations for the development of U.S. law and identity. Our focus on Wong Kim Ark led us to emphasize Chinese exclusion and other efforts to limit the number of citizens of non-white ancestry by both denying naturalization and restricting entrance. Berger notes that immigrants considered White had a different experience. She reminds readers that while the National Origins Act also “targeted Jews and Italians for exclusion,” and many-faced discrimination and hostility, their capacity to naturalize enabled men to bring their wives and to vote, and they did not face widespread suspicion about their eligibility to be in the United States, as did the Chinese in the late nineteenth and early twentieth centuries and many Latinx and Muslim citizens do now. Her essay, steeped in her own family’s personal history, raises the stakes for maintaining a generous vision of birthright citizenship to maintain the United States’ democratic project. She writes that “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.” We couldn’t agree more, and we are tremendously thankful to all of the contributors for continuing an important conversation. 

Carol Nackenoff is Richter Professor Emeritus, Department of Political Science, Swarthmore College. You can reach her by e-mail at cnacken1@swarthmore.edu. Julie Novkov is Interim Dean, Professor, and Collins Fellow in Political Science and Women's, Gender & Sexuality Studies at the Rockefeller College of Public Affairs and Policy, SUNY Albany. You can reach her by e-mail at jnovkov@albany.edu.