The Silent Rabid Dog: What History Teaches about Congress’s Power to Alter Birthright Citizenship

In discussing the Fourteenth Amendment, birthright citizenship, and immigration, history matters. Recent discussions have focused on black history and how the amendment reversed Dred Scott, granting citizenship to slaves and their descendants on the basis of their birth in the United States. But we should also be looking at the history of Chinese immigration and attempts to control it, which ultimately resulted in a complete ban on Asian immigration that lasted for forty years.

It’s hard to overstate how much white Americans in the west disliked the Chinese who had come there to work. Beth Lew Williams describes the wave of violent anti-Chinese sentiment that swept the western states after the Civil War. She painstakingly documents more than 200 expulsions and attempted expulsions of Chinese from local communities between 1885 and 1887 alone. The worst, in Hells Canyon Snake River, Oregon, resulted in 34 Chinese deaths. Even John Marshall Harlan, widely hailed as an anti-racist hero for his dissents in the Civil Rights Cases and Plessy v. Ferguson, had some pretty awful things to say about the Chinese. In a little discussed section in his Plessy dissent, he complained about the exclusion of decent black citizens from railway coaches that “the Chinaman” could ride alongside white passengers.

Initially, the western states sought to deal with their “Chinese problem” legislatively. The Supreme Court, however, quickly clarified that only the federal government, Congress in particular, could exercise control over immigration.

Congress as a Rabid Attack Dog

Congress was quick to accept the invitation and quite energetic in its exercise of its power. It started with the Page Act of 1875, restricting the entry of Chinese contract laborers, and continued vigorously until 1924. Over these years, prior to the final closing of the door, Congress restricted entry by the Chinese, required Chinese laborers in the United States to have authorizing paperwork, drew class distinctions among Chinese permitted to migrate and those forbidden to migrate, barred Chinese and other Asians from becoming naturalized citizens, and established an entire new administrative apparatus to address immigration. Congress also passed several acts limiting the courts’ power to intervene in the machinery of exclusion and expulsion.

Congress went right up to, and possibly over, the edge of its constitutional power in 1888. As Lew Williams describes in chapter 6 of her book, advocates for exclusion became highly frustrated with the government’s inability to negotiate a new treaty with China that would allow banning most immigration. Congress therefore simply acted on its own, and President Cleveland signed the legislation, which clearly violated existing treaties with China.

But What About Birthright Citizenship?

Exclusionists in the west did not like the idea of Chinese citizenship at all, and, as described above, successfully lobbied Congress to prohibit the Chinese from being able to naturalize. It was no surprise to anyone that exclusionists began arguing that even individuals born in the United States to Chinese parents were not really citizens because the Chinese could not be citizens. As Carol Nackenoff and I learned in our own research concerning this era, unfortunately for them, the lower federal courts were not highly sympathetic to this argument.

One of the early cases addressing this problem was In re Look Tin Sing, decided in 1884. It wasn’t a Supreme Court case, but the author was the Supreme Court’s Associate Justice Field, writing on behalf of the Ninth Circuit Court of Appeals. He described the circumstances of Look Tin Sing’s claim to citizenship. Look Tin Sing had been born to Chinese parents in the United States; his parents had lived in Mendocino for 20 years. When Look Tin Sing was denied re-entry at the border after a trip to China, Justice Field ordered him admitted because he was a citizen. Field explained that the principle of birthright citizenship pre-dated the Fourteenth Amendment. Judge Matthew Deady, writing for the Oregon Circuit Court, agreed with this analysis in 1888, claiming that the Fourteenth Amendment simply codified a common law principle that the status of citizenship was acquired by birth.

The Supreme Court tackled the issue in Wong Kim Ark in 1898, confirming that Wong Kim Ark, despite the fact that his parents were ineligible for citizenship, was himself a citizen because of his birth in the United States. In that case, the Supreme Court simply “reaffirmed that the clause said what it meant.”

The Silent Rabid Dog

When the US Supreme Court struck down state attempts to limit Chinese migration, it was sending a message. The Court wasn’t expressing support for the Chinese. Rather, it was inviting Congress to solve the problem, which Congress did, repeatedly.

The lower federal courts’ rulings and the Supreme Court’s decision on birthright citizenship, however, did not function as invitations. Why not? The courts hearing these cases made the point quite clear. This wasn’t a situation where citizenship could be denied if Congress authorized its denial. The courts weren’t shy in issuing other invitations to Congress and administrative bodies to act against the Chinese. Congress almost certainly did not act because it read the courts’ stance as prohibiting it from acting. The fourteenth amendment, they were forced to conclude, simply meant what it said.

One might respond, though, that Wong Kim Ark and a few of the other named litigants were the children of legal immigrants, and the cited cases have nothing to say about legislating against the automatic extension of citizenship to the children of undocumented or illegal immigrants.
This argument, however, ignores Congress’s eagerness to declare the Chinese illegal and expel them and the courts’ willingness to allow administrative removal. Chinese women whose legal resident husbands abandoned them or died could have their residence status revoked. Individuals claiming to be merchants could be administratively re-categorized as undocumented laborers and deported. Some Chinese who credibly claimed to be citizens could not even convince the courts to hear their pleas unless they could show that some kind of administrative error prevented their entry to the US. One of the major developmental themes of this period was the cultural and legal construction of the alien. Law and policy advanced rapidly together to make aliens, to control them, to divide them into legal and illegal statuses, and to expel the undesirable aliens.

Why on earth wouldn’t Congress act, then, to declare that the children born to Chinese illegally residing in the United States were themselves ineligible for citizenship? Only one answer makes sense: even the rabidly anti-Chinese body that built and implemented Chinese exclusion did not believe that they had this power.

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