Tuesday, November 16, 2021

What the Legal Battles Over Chinese Migration Teach Us

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)

Robert Tsai 

In American By Birth, Carol Nackenoff and Julie Novkov tell the story of Wong Kim Ark, whose Supreme Court case interpreted the Fourteenth Amendment so as to secure the principle of birthright citizenship, especially through patrilineal descent. Their book is a richly-textured presentation of not only the twists and turns of that particular litigation, but also other efforts by Chinese migrants and their allies to contest the various restrictions on their ability to enter the United States.

I had the pleasure awhile back to write a review essay on historian Beth Lew-Williams’ book, The Chinese Must Go. Nackenoff and Novkov’s offering should be read together with Lew-Williams’ book to get a complete picture of this period. Lew-Williams does the archival work in presenting the complicated forms of extra-legal violence perpetrated against Chinese migrants as well as the nascent methods of formal interdiction. I have called these “racial purges” to underscore how the Chinese removals fell along a broad spectrum of methods for controlling unwanted populations. I also treat extra-legal removals of Chinese migrants from Tacoma, Washington, and elsewhere as dark acts of popular sovereignty because they were defended in such civic terminology, and because these events were ultimately considered by mainstream figures as coherent expressions of political dissatisfaction, even if they deplored lawbreaking as a tactic.  

Nackenoff and Novkov remind us that political violence occurred, but they don’t dwell on it. Instead, their focus is on the action that took place within the formal constitutional order (i.e., the legal system and in Congress). The authors take pains to show how advocacy succeeded in reuniting some migrants with loved ones after they were wrongly deported or prevented from reentering the United States. The authors also do an admirable job of presenting the backgrounds and philosophical leanings of the federal judges on the West Coast who are deluged with thousands of petitions for writs of habeas corpus.

The Wong Kim Ark case forms the heart of the book. Nackenoff and Novkov render a vivid account of Kim Ark’s life and his lawsuit challenging the government’s refusal to allow him to reenter the country. Noteworthy are the ways that both sides invoke the Dred Scott case and how enduring suspicions of potentially disloyal people born to non-citizens influence the U.S. government’s legal position.

Allow me a few broader observations about the implications of Nackenoff and Novkov’s terrific book. First, despite a popular tendency to glorify a handful of decisions that are compatible with a modern sensibility about liberal constitutionalism, American By Birth actually demonstrates the cultural and political limits to judge-centered accounts of constitutionalism. Chinese migrants, often represented by skilled lawyers and organizations looking for test cases, were able to win some cases and gain reentry, especially when travelers were trapped by laws in flux and detained by hostile bureaucrats. That’s the good news.

By and large, however, these wins should be classified as limited instances of individual harm reduction rather than as evidence that Article III judges can withstand mobilized sentiment for long. A surprising bright spot for many readers will be that judges took international law seriously at this time—the U.S. treaty with China plays a role in several decisions in which judges ordered relief for migrants. But the potency of this rationale is quickly blunted by congressional action to exclude unwanted social groups for racial, economic, and cultural reasons. Judges then fell in line.

The sudden rise of habeas petitions filed by Chinese migrants also seemed to have a negative effect on the judicial mindset. Nackenoff and Novkov mention that Justice Stephen Field grew irate during oral argument in one case, telling counsel that “it was because the Courts were overcrowded that the second Act was passed.” He seemed to be searching for a broad-based solution by closing the courthouse doors so judges wouldn’t have to “give each one of them a separate trial” if they chose to leave the country.

In Chae Chan Ping v. United States, Justice Field staked out an expansive view that Congress’s power over demographic control need not be enumerated in the Constitution but can be derived by considering deeper theories of sovereignty. In upholding the Chinese Exclusion Acts, Justice Field also notoriously endorsed the cultural incompatibility thesis when it comes to people of Chinese ancestry.

That Chinese people were perpetual strangers, unwilling to or incapable of adopting American ways, was promoted by both mainstream figures and the perpetrators of extra-legal purges as a legitimate justification for eliminating people of Chinese ancestry from the polity. Field called the Chinese “foreigners of a different race … who will not assimilate with us” and therefore “dangerous to its peace and security.” Thus ratified by the Supreme Court, the cultural incompatibility thesis gained additional favor among the populace and underpinned the Immigration Act of 1924. And despite the towering achievement of the Immigration Act of 1965, the logic of cultural incompatibility returns with a vengeance from time to time—along with associated ideas of popular sovereignty, national identity, and the right of self-defense.

Second, despite liberals’ understandable desire to extol Justice Gray’s decision in Wong Kim Ark for embracing birthright citizenship as a constitutional baseline, the truth is more complicated. As the work of my colleague Kris Collins illuminates, citizenship for children born abroad to Americans remains deeply contested and unequally regulated. Moreover, the perspectives expressed in Justice Fuller’s dissent, whether grounded in notions of civic republicanism or racist sentiment, have not been defeated. As Nackenoff and Novkov point out toward the end of their book, the Wong Kim Ark case merely serves as a “substantial obstacle” to immigration restrictionists rather than the end of debate. It didn’t even settle the matter of who gets to decide the basis and limits of political community.

In subsequent struggles over citizenship, some have continued to advance “original intent”-style arguments that the Fourteenth Amendment should be understood only to solve the problem of citizenship for former slaves and for no other group. Others have pushed a textual reading of the “subject to the jurisdiction thereof” clause in a way that excludes non-citizens, claiming that Wong Kim Ark is either wrong, can be distinguished, or perhaps be overruled through ordinary legislation or executive order.

Nackenoff and Novkov recognize that these conversations persist, but defend the dominant reading of the Fourteenth Amendment, calling constitutional amendment “the only likely path to eliminate birthright citizenship.”

They might be correct, but if so this brings me to a third and final observation: Given how difficult it is to make formal changes to the Constitution when people disagree with Supreme Court interpretations, intensification of policy battles in related areas would seem to be the predictable result. In that sense, judicial settlement of fundamental disputes can only redirect conflict, and not always in desirable ways. What this probably means for the foreseeable future is that we will be locked into deeply polarizing battles over border policy and the resources available to the children of unauthorized migrants as proxy fights over belonging. 


Robert L. Tsai is Professor of Law and Law Alumni Scholar at Boston University School of Law. You can reach him by e-mail at

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