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When assessing a canonical Supreme Court case, legal scholars often emphasize the road to the case and its decision, and then move on. It is the issuing of the decision that ends the discussion. But there is much to lose if we do not take seriously the aftermath of a case and ask how that decision translated into actual legal practice. This is the important work that Amanda Frost does in her article on the canonical 1898 case United States v. Wong Kim Ark, which upheld the Fourteenth Amendment’s guarantee of citizenship to those born on U.S. soil. The case is heralded as a moment of enlightenment amid a dark exclusionary era, but this article reveals a far more complicated legacy. Frost mines the archives to bring us the startling discovery that Wong Kim Ark’s citizenship was far from settled after the Court issued its decision, despite its unequivocal holding.

By Accident of Birth artfully weaves together multiple strands, including the legal history of birthright citizenship, the social history of Chinese Americans, and the family history of Wong Kim Ark, to shed new light on this landmark case. Wong Kim Ark’s personal and family history serve as the organizing frame for the article. Wong was born in San Francisco in 1870, just two years after Congress ratified the Fourteenth Amendment and twelve years before passing the first Chinese Exclusion Act. His parents lived in the U.S. legally for many years prior to his birth, but they – like other Chinese migrants and Chinese Americans—were commonly subjected to discriminatory state and local laws as well as vigilante violence.

In 1871, a white mob attacked San Francisco’s Chinatown, destroying businesses and assaulting residents. Wong and his family returned to China not long after, but Wong himself maintained his connection to his birthplace, returning as a young man and taking up work as a cook in a mining camp. He made two more trips back to China, returning to the U.S. each time. Given that he was admitted without incident twice, Wong likely thought that his citizenship was settled, but on return from his third trip in 1895 he was detained by immigration authorities. They claimed he was not a citizen and had no right of entry.

By this point, the Fourteenth Amendment had been in place for three decades, but a court had not yet definitively interpreted the birthright citizenship clause as it applied to children born to immigrants on U.S. territory. As Frost explains, government authorities sought a test case, hoping that the courts would declare the children of noncitizens born on U.S. soil to be unable to claim the right of citizenship. Wong’s detention was an intentional flexing of the immigration bureaucracy to force the Court to interpret the Amendment. Much to the government’s chagrin, the Supreme Court came out in favor of Wong Kim Ark, establishing the principle of birthright citizenship even for those born to immigrants who were barred from naturalizing.

The dispute was, on its face, about immigrants and their children, but Frost shows how the case was also a referendum on the legitimacy of the Fourteenth Amendment itself. The Solicitor General, a veteran of the Confederacy, used his time in oral argument to question the validity of the Amendment, while in contrast Wong’s attorneys spoke forcefully for its lawfulness. As Frost aptly notes, “the Civil War itself was on trial.” (P. 59.) Given this subtext, it is perhaps less surprising that the Court would ultimately hold for Wong, despite the prevalence of anti-Asian sentiment at the time.

Wong Kim Ark’s journey to the Supreme Court is not a new subject; other historians, including most notably Lucy Salyer and Erika Lee, have written extensively about this case and about the interactions of Chinese migrants with American law more generally. Where Frost treads especially new ground is in tracing the aftermath of the case through archival records. The administration of the law by executive branch officials routinely undermined the principle of birthright citizenship, forcing Wong and his family to continue to fight for their rights despite the Court’s unambiguous decision. Wong himself was arrested and imprisoned in Texas in 1901, suspected of being unlawfully in the country. It took a year and protracted efforts before the government again declared that Wong was, in fact, a U.S. citizen.

Frost traces the ordeals of Wong’s Chinese-born children, who were U.S. citizens by virtue of their father’s citizenship but who faced significant opposition when they tried to enter the country to be with their father. They, like other Chinese-American entrants claiming citizenship, were subjected to exhaustive and detailed interrogations, invasive physical exams, and prolonged detention in miserable circumstances. The agency’s procedural requirement that claimants produce two white witnesses to testify to their birth all but guaranteed that many rightful citizens would be barred from entry or deported. This multi-generational story shows just how tenuous birthright citizenship claims could be, even in the aftermath of a definitive landmark Supreme Court decision.

Frost also sheds light on the ways that Chinese migrants resisted exclusion, through the courts as well as through coordinated efforts to evade immigration control. As Frost recounts, one of Wong’s four sons was later revealed, by his own testimony in 1960, to be a “paper son” – one who made a fraudulent claim of citizenship in order to attain lawful status. The proliferation of such claims was not surprising given that there were so few paths to lawful migration. Ironically, the government’s “relentless documentation” and demands for minute details made it easier for fraud to proliferate. As Frost notes, “[a]ctual citizens, unprepared to run the gauntlet, could easily stumble over detailed questions about the location of houses in their home village or the exact names and birthdates of neighbors and children, even as well-coached imposters sailed through.” (P. 72.)

As this article convinces us, it is in the administration of citizenship law – and its challenge by means both lawful and unlawful—that we see the real impact and meaning of the Court’s decision in Wong Kim Ark. Even decades after the case was decided, citizens struggle to overcome the difficult bureaucratic hurdles placed in their way by other branches of the government. Frost’s new telling of this history helps us better understand both the promise and limitations of the core principle of birthright citizenship.

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Cite as: Allison Brownell Tirres, Contesting Birthright Citizenship: The Aftermath of Wong Kim Ark, JOTWELL (July 6, 2022) (reviewing Amanda Frost, “By Accident of Birth”: The Battle over Birthright Citizenship After United States v. Wong Kim Ark, 32 Yale Journal of Law & the Humanities 38 (2021)),