by Sam Erman and Nathan Perl-Rosenthal
Abstract
United States v. Wong Kim Ark (1898) is a precedent suspended between canonization and dismemberment. Two years ago saw 125th-anniversary celebrations of Wong’s improbable Redemption-era success vindicating the Citizenship Clause against his birth country’s transparently racist attempts to deport him. Today, the government seeks to dismantle that decision’s core commitments. This article examines the substantively similar campaign that gave rise to Wong Kim Ark. Its protagonist is not Wong. It is constitutional- and international-law attorney Alexander Porter Morse, a late-nineteenth-century white supremacist Democrat who would have stripped Wong and his co-ethnics of their citizenship. For nearly two decades, Morse and lawyers like him mounted a frontal attack on the Fourteenth Amendment’s American Citizenship Clause guarantee of citizenship to “All persons born … in the United States, and subject to the jurisdiction thereof.” They read the Clause to embody a descent-based requirement known in international-law circles as jus sanguinis, or law of blood. On its face, the argument was outlandish. It asked the Court to reject the settled meaning of a key provision of the Reconstruction Amendments in favor of an international-law concept absent from the Constitution. Text, practice, precedent, sound policy, and drafting history were to the contrary. And yet, the Department of Justice backed the effort at a time when similarly racist offenses to logic and experience regularly succeeded with the Justices. Far from seeking merely to unwind the Civil War and Reconstruction, Morse and like-minded jurists proposed to erect on the ashes of slavery and the Civil War a new national consensus (among whites) in favor of modern, institutionalized racism. Specifically, they endeavored to integrate the Court’s rollback of Reconstruction (including vitiating citizenship rights and greenlighting Jim Crow) with the Justices’ recognition in Congress of the plenary powers that international law attached to sovereignty. Reading jus sanguinis into the Constitution alongside sovereignty could bring the two lines together to devastating effect. But the effort backfired, spectacularly. Wong Kim Ark reaffirmed the birthplace-based rule proposed to be overturned. One reason was sovereignty. As Wong’s excellent lawyers put it, judging a U.S.-born child to be subject to a foreign jurisdiction at birth meant acknowledging a foreign jurisdiction within U.S. borders. That result would diminish U.S. sovereignty and subject it to foreign interference. Another reason that Morse and company failed was overreach. As Wong’s attorneys emphasized, any pure jus sanguinis rule would strip masses of children of European immigrants of their presumptive U.S. citizenship. Yet, advocates of jus sanguinis drew on theories then popular in international law to propound just such a rule. They insisted that jus sanguinis was the sole, mutually exclusive alternative to birthplace-based citizenship. The stark framing pressed the Court into a dichotomous choice. Unwilling to reject citizenship for U.S.-born children of European immigrants or to acknowledge foreign jurisdiction within U.S. borders, the Court embraced birthplace over descent as the basis of birthright citizenship.