United States v. Wong Kim Ark
|案件全名||United States v. Wong Kim Ark|
|引註案號||169 U.S. 649
18 S.Ct. 456; 42 L.Ed. 890
|既往案件||从美国加利福尼亚州北部地区法院上诉：71 F. 382|
纵观美国历史，虽然直至内战结束后才有对公民权作出明确定义的法律，但以属地主义原则判断公民身份一直是占有主导地位的法律原则，而且此做法已经得到普遍接受，故所有在美国领土出生的新生儿都将自动获得公民权。唯一例外则是内战前－奴隶遭排除在外，因為他们被认为是奴隶主的财产，因而不能成为美国公民。1844年纽约州有过一个以属地主义原则判定公民权的典型案例林奇诉克拉克案（Lynch v. Clarke），案中一对外国夫妇侨居在纽约市时生下了一名女婴，这个女婴就由法官根据属地主义原则判定是一位美国公民。
2006年在加州大学伯克利分校法学院担任助理教授，并在之后成为加利福尼亚州最高法院大法官的刘弘威在文章中写道，虽然公民权条款的立法历史有些“稍嫌单薄”，但其在内战后时期历史背景下的核心作用却是显而易见的。一个名为宪法问责中心（Constitutional Accountability Center）的进步主义智库首席法律顾问伊丽莎白·威德拉（Elizabeth Wydra）认为，1866年公民权条款的支持和反对者们都认同这一条款将自动赋予所有在美国出生的人公民身份（除了外交官或入侵军队的子女）。德克萨斯州副检察长詹姆斯·C·胡（James C. Ho）对此也有同样的看法。艾克朗大学法学院院长理查德·艾纳斯（Richard Aynes）则表示了不同看法，他认为公民权条款产生了“其制定者始料未及的效果”。
华人移民在美国出生的后代是否适用公民权条款的问题首先是在1884年的“陆天先案”（In re Look Tin Sing）中提出的。陆天先（Look Tin Sing，音译）于1870年在加利福尼亚州蒙多西诺出生，1884年他去了一趟中国，但回美国时由于不能提供当时所规定中国移民就有的足够证明文件，他被禁止入境。这个案件在加利福尼亚州的联邦巡回法院开庭，联邦最高法院大法官史蒂芬·约翰逊·菲尔德和另外两位联邦法官审理。据新罕布什爾大學历史教授露西·萨尔耶（Lucy Salyer）书中所写，大法官菲尔德“向该地区所有的律师发出公开邀请，请他们就（这一案件）涉及的宪法问题发表意见”:60。菲尔德关注于公民权条款中“并受其管辖”这一短语的含义，认为陆天仙出生时，他的父母虽然是外国人士，但他仍然“受美国管辖”，因此大法官命令美国官员视陆天仙为美国公民并允许他入境。陆天仙案之后并没有上诉，并且也从未被最高法院审查。1892年的另一个案件中，加利福尼亚州同一个巡回区的联邦上诉法院（即之后的第九巡回上诉法院）总结认为只要一个华人可以提供足够的证据证实他是在美国境内出生的，那么就应视其为美国公民。这一案件同样没有上诉到最高法院。
根据萨尔耶的说法，旧金山市检查官乔治·科林斯（George Collins）曾试图说服联邦司法部将一个华人出生公民权的案子上诉到联邦最高法院。他曾在1895年5至6月的《美国法律评论》上发表文章，批评之前陆天先案的判决以及联邦政府对挑战这一判决驻足不前。并主张以国际法的观点来解读公民权的血统主义原则。最终他成功说服了“努力寻找一个可行案件并选中了黄金德案的”联邦司法部长亨瑞·富特（Henry Foote）:66。
在中华公所法律代表的帮助下:67，黄金德对拒绝承认他生来就是美国公民的人提出挑战，并向美国联邦地区法院发起人身保护令的呈请。地区法院法官威廉·W·莫罗听取了双方的辩论:52，这场庭辩主要围绕公民权条款中“并受其管辖”（subject to the jurisdiction thereof'）五字解读以及外来人士在美国所生孩子是否属于美国公民的问题展开。黄金德的律师认为其含义是“受到合众国法律的管辖”，在这样的理解下，他国公民进入美国后就应遵守其法律。这一解读也与美国从英国所继承的普通法思想相符，并且将确保所有在美国出生的人都会根据出生地原则而成为美国公民。联邦政府则声称“并受其管辖”的意思是“从政治上受合众国的管辖”。这样的解读则是来自于国际法，是根据一个孩子的父母来判断其国籍，即“血统主义”原则。根据这样的解读，由于黄金德的父母都不是美国公民，因此他也不是。
联邦政府败诉后直接向最高法院提出了上诉。据萨尔耶的说法，政府官员意识到这一案件的判决“不仅是对华裔，而且对所有在美国出生但父母是别国人士的人皆非常重要”，同时也担心如果按常规途径上诉至最高法院，那么同年11月的1896年美国总统选举将会对最高法院的判决产生影响。所以为了避免法院基于对政策的担忧而非根据案件本身来进行审理，政府选择了越过上诉法院:69。1897年3月5日，双方在最高法院展开了口头辩论。代表政府一方的是联邦副检察长霍尔姆斯·康拉德，而代表黄金德出庭的律师则是麦克斯维尔·埃瓦茨，前助理联邦司法部长J·哈伯利·阿什顿（J. Hubley Ashton）和托马斯·D·里尔丹（Thomas D. Riordan）。
判决书中援引1812年帆船交易所诉法登案中首席大法官约翰·马歇尔的意见：“国家对其领土的管辖权必定是专属且绝对的”，支持了最初审理此案的地区法院法官有关“屠宰场案”中非公民父母后代公民权的判决并不构成本案具有约束性先例的意见。法院认为黄金德与生俱来的公民权受第十四条修正案保护，《排华法案》中的限制对其不适用。他们认为一项国会的立法不能凌驾于宪法之上，这样的法律“不能左右（宪法的）含义或是削弱其效果，而必须服从规定並予以解释及执行”。1898年法院的裁决公布后不久，旧金山市检察官马歇尔·B·伍德沃斯（Marshall B. Woodworth）评价道，对判决“持异议者显然没有意识到合众国作为一个主权实体，有权通过任何其认为适当的公民权法律，国际法中的相关规则并不能将美国公民认定原则限制在其单独的范围内”:561。
1942年的里根诉金案（Regan v. King）对2600名在美国出生日裔人士的公民权提出了挑战。原告律师称黄金德案是最高法院所做出过“最具伤害力也是最不幸的判决之一”，并称希望这个新的案件可以给法院“一个纠正自己的机会”。联邦地区法院和第九巡回上诉法院都断然拒绝了这种论调，并援引黄金德案为一个有效的法律先例，最高法院也拒绝了这个案件的调卷令。
为了响应公众打击非法移民的要求，同时也担心非法移民的后代成为美国公民后，其相应本没有资格继续停留在国内的亲属也全部都成为“连锁移民”，国会曾数次提出法案试图挑战对公民权条款的常规解读，并寻求办法积极和明确地拒绝给予外国游客或非法居留人士在美国所生后代的公民权，但都没有成功。2009年，来自乔治亚州的联邦众议员内森·迪尔在第111届国会上提出了《2009年出生公民权法》（Birthright Citizenship Act of 2009），这一法案就是旨在排除非法移民在美国所生子女对公民权条款的适用性；2011年1月5日，艾奥瓦州众议员史蒂夫·金又在第112届提出了与之类似的《2011年出生公民权法》（Birthright Citizenship Act of 2011）；2011年4月5日，来自路易斯安纳州的联邦参议员大卫·韦特也在参议院提出了类似的法案“S. 723”；不过截止2011年12月，《2011年出生公民权法》还没有进入众议院或参议院的议程。
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- ^ 5.0 5.1 "Acquisition of U.S. Citizenship by Birth in the United States", 7 FAM 1111(a).
- ^ Woodworth (1896), p. 538. "As a matter of fact, there was no definition in the constitution, or in any of the Acts of Congress, as to what constituted citizenship, until the enactment of the Civil Rights Bill in 1866, and the adoption of the Fourteenth Amendment in 1868."
- ^ Woodworth (1896), p. 538. "So generally accepted and acted upon has been the impression that birth in this country ipso facto confers citizenship, that there are, to-day, thousands of persons born in the United States of foreign parents, who consider themselves, and are recognized, legally, as citizens. Among these are very many voters, whose right to vote, because born here of foreign parents, has never been seriously questioned."
- ^ "Authorities", 7 FAM 1119(d). "Until 1866, the citizenship status of persons born in the United States was not defined in the Constitution or in any federal statute. Under the common law rule of jus soli—the law of the soil—persons born in the United States generally acquired U.S. citizenship at birth."
- ^ Woodworth (1896), p. 537. "[T]he commonly accepted notion in this country, both prior and subsequent to the adoption of the Fourteenth Amendment ... has been that birth within the United States, although of alien parents, was sufficient, of itself, to confer the right of citizenship, without any other requisite, such for instance, as the naturalization proceedings which take place with reference to aliens."
- ^ Walter Dellinger, Assistant Attorney General. Legislation denying citizenship at birth to certain children born in the United States. Memoranda and Opinions. Office of Legal Counsel, U.S. Department of Justice. 1995-12-13 [2013-12-09].
A bill that would deny citizenship to children born in the United States to certain classes of alien parents is unconstitutional on its face. A constitutional amendment to restrict birthright citizenship, although not technically unlawful, would flatly contradict the Nation's constitutional history and constitutional traditions.
- ^ Lynch v. Clarke, 3 N.Y.Leg.Obs. 236 (N.Y. 1844).
- ^ Lynch v. Clarke, 3 N.Y.Leg.Obs. at 250. "Upon principle, therefore, I can entertain no doubt, but that by the law of the United States, every person born within the dominions and allegiance of the United States, whatever were the situation of his parents, is a natural born citizen.... I am bound to say that the general understanding ... is that birth in this country does of itself constitute citizenship.... Thus when at an election, the inquiry is made whether a person offering to vote is a citizen or an alien, if he answers that he is a native of this country, it is received as conclusive that he is a citizen.... The universality of the public sentiment in this instance ... indicates the strength and depth of the common law principle, and confirms the position that the adoption of the Federal Constitution wrought no change in that principle."
- ^ 13.0 13.1 An Act to establish an [sic] uniform Rule of Naturalization 1st Cong., Sess. II, Chap. 3; 1 Stat. 103. 1790-3-26. The Library of Congress. [2013-12-09].
Be it enacted ... That any alien, being a free white person, who shall have resided within the limits and under the jurisdiction of the United States for the term of two years, may be admitted to become a citizen thereof.... And the children of citizens of the United States, that may be born beyond sea, or out of the limits of the United States, shall be considered as natural born citizens: Provided, That the right of citizenship shall not descend to persons whose fathers have never been resident in the United States....参数
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The opposition made several arguments. The citizenship provision was unconstitutional, they contended, and would grant citizenship, not only to freed slaves, but to Indians living off their reservations, to Chinese born in the United States, and even to gypsies. [Illinois Senator Lyman] Trumbull agreed that it would, opening a chorus of cries that the bill would cede California to China and make America a mongrel nation.
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Congress has no power to make a citizen.... [only] to establish a uniform rule of naturalization.
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However, because there were concerns that the Civil Rights Act might be subsequently repealed or limited the Congress took steps to include similar language when it considered the draft of the Fourteenth Amendment.
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The debate in the Senate was conducted in a somewhat acrimonious fashion and focused in part on the difference between the language in the definition of citizenship in the Civil Rights Act of 1866 and the proposed amendment. Specific discussion reviewed the need to address the problem created by the Dred Scott decision, but also the possibility that the language of the Howard amendment would apply in a broader fashion to almost all children born in the United States. The specific meaning of the language of the clause was not immediately obvious.
- ^ Cong. Globe, 39th Cong., 1st Sess. 2890 (1866-5-30). "I am really desirous to have a legal definition of 'Citizenship of the United States.' What does it mean? What is its length and breadth? ... Is the child of the Chinese immigrant in California a citizen? Is the child of a Gypsy born in Pennsylvania a citizen? ... Why, sir, there are nations of people with whom theft is a virtue and falsehood a merit.... It is utterly and totally impossible to mingle all the various families of men, from the lowest form of the Hottentot up to the highest Caucasian, in the same society.... and in my judgment there should be some limitation, some definition to this term 'citizen of the United States.'"
- ^ Cong. Globe, 39th Cong., 1st Sess. 2891 (1866-5-30).
- ^ Cong. Globe, 39th Cong., 1st Sess. 2892 (1866-5-30). "And yet by a constitutional amendment you propose to declare the Utes, the Tabahuaches, and all those wild Indians to be citizens of the United States, the great Republic of the world, whose citizenship should be a title as proud as that of king, and whose danger is that you may degrade that citizenship."
- ^ Ho (2006), p. 372. "But although there was virtual consensus that birthright citizenship should not be extended to the children of Indian tribal members, a majority of Senators saw no need for clarification."
- ^ Cong. Globe, 39th Cong., 1st Sess. 2897 (1866-5-30).
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For example, Senator Cowan expressed concern that the proposal would expand the number [sic] Chinese in California and Gypsies in his home state of Pennsylvania by granting birthright citizenship to their children, even (as he put it) the children of those who owe no allegiance to the United States and routinely commit 'trespass' within the United States. Supporters of Howard's proposal did not respond by taking issue with Cowan's understanding, but instead by agreeing with it and defending it as a matter of sound policy.
- ^ Ho (2006), p. 370. "[Senator Howard's] understanding was universally adopted by other Senators. Howard's colleagues vigorously debated the wisdom of his amendment—indeed, some opposed it precisely because they opposed extending birthright citizenship to the children of aliens of different races. But no Senator disputed the meaning of the amendment with respect to alien children."
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- ^ An act a supplement to an act entitled "An act to execute certain treaty stipulations relating to Chinese". 50th Cong., Sess. I, Chap. 60; 25 Stat. 504. 1888-10-1.
- ^ An act to prohibit the coming of Chinese persons into the United States. 52nd Cong., Sess. I, Chap. 60; 27 Stat. 25. 1892-5-5.
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- ^ Woodworth (1896), p. 538. "It is significant that since the adoption of the Fourteenth Amendment, the question has arisen simply with reference to Chinese and Indians."
- ^ "Native Americans and Eskimos", 7 FAM 1117(a). "Before U.S. v. Wong Kim Ark, the only occasion on which the Supreme Court had considered the meaning of the 14th Amendment's phrase 'subject to the jurisdiction' of the United States was in Elk v. Wilkins, 112 U.S. 94 (1884)."
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- ^ Slaughter-House Cases, .
- ^ 60.0 60.1 Woodworth (1896), p. 537. "On the other hand, the Supreme Court, in the Slaughter-house cases, used language which indicates that it then considered the provision as declaratory of the doctrine of the law of nations."
- ^ 61.0 61.1 61.2 Woodworth (1896), p. 538. "The Supreme Court, singular to say, has never directly passed on the political status of children born in this country of foreign parents. The question was not directly involved in the Slaughter-house cases, and what the court there stated is, therefore, dictum, and was so treated by Judge Morrow in the Wong Kim Ark case."
- ^ 62.0 62.1 Semonche (1978), p. 112. "Gray then sidestepped language in earlier opinions of the Court that said children born of alien parents are not citizens by saying, in effect, that such conclusions were gratuitous statements not necessary to the decisions in those cases and therefore entitled to no weight as precedent."
- ^ Pronunciation of Wong Kim Ark's name in his family's native Taishanese dialect: wong11 gim33 'ak3.
- ^ Wong Kim Ark, 169 U.S. at 649. "This was a writ of habeas corpus ... in behalf of Wong Kim Ark, who alleged that he ... was born at San Francisco in 1873 ...."
- ^ 65.0 65.1 First page of testimony given by Wong Kim Ark at an immigration hearing for his eldest son, Wong Yoke Fun, on 1910-12-6. U.S. National Archives and Records Administration, San Bruno, California. (Wong Kim Ark gives his birthdate as "T. C. 10, 9th month, 7th day"—a Chinese imperial calendar date said in the transcript of the testimony to correspond to October 20, 1871.)
- ^ Affidavit signed by Wong Kim Ark on November 5, 1894. U.S. National Archives and Records Administration, San Bruno, California. (Wong gives his age as 23.)
- ^ 67.0 67.1 First page of testimony given by Wong Kim Ark at an immigration hearing for his third son, Wong Yook Thue, on 1925-3-20. U.S. National Archives and Records Administration, San Bruno, California. (Wong Kim Ark gives his age as 56. The immigration board also acknowledges the presence at the hearing of Wong Yook Thue's "prior landed alleged brother Wong Yook Sue".)
- ^ First page of testimony given by Wong Kim Ark at an immigration hearing for his youngest son, Wong Yook Jim, on July 23, 1926. U.S. National Archives and Records Administration, San Bruno, California. (Wong Kim Ark gives his age as 57.)
- ^ Davis, Lisa. The Progeny of Citizen Wong. SF Weekly. 1998-11-04 [2013-12-09]. （原始内容存档于2013-05-21）.
Wong Kim Ark spent most of his life as a cook in various Chinatown restaurants. In 1894, Wong visited his family in China.
- ^ 70.0 70.1 Wong Kim Ark, 169 U.S. at 650. "Because the said Wong Kim Ark, although born in the city and county of San Francisco, State of California, United States of America, is not, under the laws of the State of California and of the United States, a citizen thereof, the mother and father of the said Wong Kim Ark being Chinese persons and subjects of the Emperor of China, and the said Wong Kim Ark being also a Chinese person and a subject of the Emperor of China."
- ^ Collins, George D. Citizenship by Birth. American Law Review. 1895-05-06, 29: 385–394.
...[W]ere it not for the fact that the executive department of the general government has apparently acquiesced in Judge Field's [Look Tin Sing] decision as a correct interpretation of the law, we might well be indifferent to what he did or did not decide in the particular case before the Circuit Court, knowing as we do that when the question is ultimately brought before the Supreme Court of the United States, Judge Field's views will not be sustained.
- ^ Woodworth (1898), p. 556. "From this refusal to permit him to land, a writ of habeas corpus was sued out in the United States District Court .... [T]hat court discharged Wong Kim Ark on the ground that he was a citizen of the United States by virtue of his birth in this country, and that the Chinese Exclusion Acts were therefore inapplicable to him."
- ^ In re Wong Kim Ark, 71 F. 382 (N.D.Cal. 1896).
- ^ Woodworth (1896), p. 536. "In the United States, the [citizenship] question must depend upon the interpretation to be given to the first clause of the Fourteenth Amendment to the Constitution, but the peculiar language of a phrase in that provision renders it a somewhat debatable point as to whether the provision was intended to be declaratory of the common law or of the international doctrine."
- ^ Woodworth (1898), p. 555. "While the question before the Supreme Court was, what constitutes citizenship of the United States under the Fourteenth Amendment, still the peculiar phraseology of the citizenship clause of that Amendment necessarily involved the further and controlling proposition as to what that clause was declaratory of; whether it was intended to be declaratory of the common-law or of the international doctrine."
- ^ In re Wong Kim Ark, 71 F. at 386.
- ^ Rodriguez (2009), pp. 1364–1366. "[W]hat weight do we assign the Supreme Court's first attempts to interpret the [Citizenship Clause] after its passage (the extension of the Citizenship clause to children of immigrants not eligible for citizenship in Wong Kim Ark)? ... and ambiguity as to whether the Clause extended to the children of Chinese immigrants persisted until the Supreme Court interpreted the Clause in Wong Kim Ark."
- ^ Slaughter-House Cases,
- ^ In re Wong Kim Ark, 71 F. at 391. "That this last sentence, which is the expression relied on by counsel for the government, is mere dictum, is plain from what has been stated as the issue involved in those cases."
- ^ Woodworth (1896), p. 537. "The rule laid down by the Supreme Court in Elk v. Wilkins, with respect to the political status of Indians is, however, not applicable to that of Chinese, or persons other than Chinese, born here of foreign parents."
- ^ In re Wong Kim Ark, 71 F. at 391. "Nor does the interpretation of the phrase in question in the case of Elk v. Wilkins ... dispose of the matter."
- ^ Woodworth (1896), p. 537. "The decisions, which have passed upon the political status of Chinese born here, were all rendered in the Ninth Circuit, and they hold that the Fourteenth Amendment was intended to be declaratory of the common-law rule, and that birth in this country is sufficient to confer the right of citizenship."
- ^ In re Wong Kim Ark, 71 F. at 391. "That being so, the observations referred to and relied upon, however persuasive they may appear to be, cannot be accepted as declaring the law in this circuit, at least as against the authority of In re Look Tin Sing, where the question was squarely met and decisively settled."
- ^ Slaughterhouse Cases, 83 U.S. at 74.
- ^ The native-born Chinese are legally adjudged to be citizens. San Francisco Chronicle. 1896-01-04: 12.
Judge Morrow decided yesterday that a Chinese, though a laborer, if born in this country, is a citizen of the United States, and as such cannot lose his right to land here again after leaving the country.
- ^ Order of the District Court of the United States, Northern District of California, "In the Matter of Wong Kim Ark", 1896-1-3, U.S. National Archives and Records Administration. Retrieved 2011-7-17.
- ^ Woodworth (1898), p. 556. "Upon a hearing duly had, that [district] court discharged Wong Kim Ark on the ground that he was a citizen of the United States by virtue of his birth in this country, and that the Chinese Exclusion Acts were therefore inapplicable to him."
- ^ In re Wong Kim Ark, 71 F. at 392. "Arriving at the conclusion, as I do, after careful investigation and much consideration, that the supreme court has as yet announced no doctrine at variance with that contained in the Look Tin Sing decision and the other cases alluded to, I am constrained to follow the authority and law enunciated in this circuit.... The doctrine of the law of nations, that the child follows the nationality of the parents, and that citizenship does not depend upon mere accidental place of birth, is undoubtedly more logical, reasonable, and satisfactory, but this consideration will not justify this court in declaring it to be the law against controlling judicial authority.... From the law as announced and the facts as stipulated, I am of opinion [sic] that Wong Kim Ark is a citizen of the United States within the meaning of the citizenship clause of the fourteenth amendment."
- ^ Woodworth (1896), p. 554. "I understand that the Wong Kim Ark case will be appealed to the Supreme Court, and, therefore, this at once delicate and important question will receive the consideration of that able tribunal, and the subject be set at rest so far as the existing law is concerned."
- ^ Wong Kim Ark, 169 U.S. at 652. "The [district] court ordered Wong Kim Ark to be discharged, upon the ground that he was a citizen of the United States. The United States appealed to this court...."
- ^ Semonche, John E. Charting the Future: The Supreme Court Responds to a Changing Society, 1890–1920. Westport, CT: Greenwood Press. 1978: 111. ISBN 0-313-20314-8. LCCN 77-94745.
- ^ Wong Kim Ark, 169 U.S. at 652.
- ^ Ashton, J. Hubley. Lincolniana: A Glimpse of Lincoln in 1864. Journal of the Illinois State Historical Society. 1976-2, 69 (1): 67–69.
The reminiscence printed below was written by J. Hubley Ashton, assistant attorney general of the United States from 1864 to 1869.
- ^ Biographies: Thomas D. Riordan. Federal Judicial Center. [2012-01-17].
- ^ Wong Kim Ark, 169 U.S. at 653.
- ^ Semonche (1978), p. 111. "Since [Associate Justice Joseph] McKenna did not hear the oral arguments, he did not participate in the decision."
- ^ Wong Kim Ark, 169 U.S. at 732. "MR. JUSTICE McKENNA, not having been a member of the court when this case was argued, took no part in the decision."
- ^ American Society of International Law. Judicial Decisions Involving Questions of International Law. American Journal of International Law (New York: Baker, Voorhis & Co.). 1914, 8: 672.
- ^ Wong Kim Ark Is a Citizen: Supreme Court Decision in Case of Chinese Born in America. Washington Post. 1898-03-29: 11.
- ^ Woodworth (1898), p. 556. "Mr. Justice Gray wrote the prevailing opinion, which was concurred in by all the justices excepting Mr. Chief Justice Fuller and Mr. Justice Harlan, both of whom dissented. Mr. Justice McKenna, not having been a member of the court when the arguments took place, did not participate in the decision."
- ^ Wong Kim Ark, 169 U.S. at 654.
- ^ 102.0 102.1 102.2 Kirkland, Brooke. Limiting the Application of Jus Soli: The Resulting Status of Undocumented Children in the United States. Buffalo Human Rights Law Review. 2006, 12: 200.
- ^ Woodworth (1898), p. 559. "In arriving at the conclusion that Wong Kim Ark was a citizen of the United States, although born in this country of foreign parents, the court uses the following language...."
- ^ Bouvier, John. Citizen. Bouvier's Law Dictionary and Concise Encyclopedia 1. Kansas City, MO: Vernon Law Book Company: 490. 1914.
- ^ Wong Kim Ark, 169 U.S. at 681.
- ^ Martin, David; Schuck, Peter. Immigration Stories. New York: Foundation Press. 2005: 75. ISBN 978-1-58778-873-4.
In its analysis of the nature of national jurisdiction, the Court relied heavily on Chief Justice John Marshall's broad statement....
- ^ The Schooner Exchange v. M'Faddon, .
- ^ Wong Kim Ark, 169 U.S. at 683.
- ^ Woodworth (1898), p. 559. "The refusal of Congress to permit the naturalization of Chinese persons cannot exclude Chinese persons born in this country from the operation of the constitutional declaration that all persons born in the United States, and subject to the jurisdiction thereof, are citizens of the United States."
- ^ Wong Kim Ark, 169 U.S. at 699.
- ^ Bouvier, John. Chinese. Bouvier's Law Dictionary and Concise Encyclopedia 1. Kansas City, MO: Vernon Law Book Co.: 482. 1914.
- ^ Marshal [sic] B. Woodworth Inducted into Office. San Francisco Chronicle. 1901-03-20: 14.
Marshall B. Woodworth, who was recently appointed United States Attorney for the Northern district of California ... took the oath of office yesterday before Judge Morrow in the United States Circuit Court.
- ^ Marshall B. Woodworth Killed. New York Times. 1943-04-19: 21.
Marshall B. Woodworth, 66, former United States attorney in San Francisco, was struck and killed by an automobile yesterday.
- ^ 114.0 114.1 114.2 114.3 Woodworth, Marshall B. Who Are Citizens of the United States? Wong Kim Ark Case. American Law Review (St. Louis: Review Pub. Company). 1898, 32: 554–561.
- ^ 115.0 115.1 Yale Law Journal. Jetsam and Flotsam: Citizenship of Chinaman Born in United States. Central Law Journal (St. Louis: Central Law Journal Company). 1898, 46: 519.
Although hopelessly in the minority, Chief Justice Fuller, with whom Mr. Justice Harlan agrees, dissents from this opinion, and, upon what appears to be the better view, holds that the common law of England does not control the question under discussion.
- ^ Wong Kim Ark, 169 U.S. at 713.
- ^ Wong Kim Ark, 169 U.S. at 709. "The framers of the Constitution were familiar with the distinctions between the Roman law and the feudal law, between obligations based on territoriality and those based on the personal and invisible character of origin, and there is nothing to show that, in the matter of nationality, they intended to adhere to principles derived from regal government, which they had just assisted in overthrowing. Manifestly, when the sovereignty of the Crown was thrown off and an independent government established, every rule of the common law and every statute of England obtaining in the Colonies in derogation of the principles on which the new government was founded was abrogated."
- ^ 118.0 118.1 Wong Kim Ark, 169 U.S. at 731.
- ^ The question of whether the Constitution could override a treaty remained unresolved until a 1957 Supreme Court case, Reid v. Covert, .
- ^ Eastman (2006), p. 2. "The positively phrased 'subject to the jurisdiction' of the United States might easily have been intended to describe a broader grant of citizenship than the negatively phrased language from the 1866 Act.... But the relatively sparse debate we have regarding this provision of the Fourteenth Amendment does not support such a reading."
- ^ Wong Kim Ark, 169 U.S. at 721.
- ^ Wong Kim Ark, 169 U.S. at 725 n.2.
- ^ Wong Kim Ark, 169 U.S. at 726.
- ^ Przybyszewski, Linda. The Republic According to John Marshall Harlan. Chapel Hill, NC: University of North Carolina Press. 1999: 120–121. ISBN 0-8078-2493-3.
- ^ Questions of Citizenship. San Francisco Chronicle. 1898-03-30: 6.
- ^ "Findings and Decree" denying Wong Yoke Fun's application for admission to the United States. 1910-12-27. U.S. National Archives and Records Administration, San Bruno, California.
- ^ Last page of the transcript of Wong Yook Thue's immigration hearing, showing that he is being admitted to the United States. 1925-3-20. U.S. National Archives and Records Administration, San Bruno, California. (This page also mentions that "another alleged son Wong Yook Seu [sic]" was refused admission to the U.S. in 1924, but was "subsequently landed by the Department on appeal".)
- ^ Last page of the transcript of Wong Yook Jim's immigration hearing, showing that he is being admitted to the United States. 1926-7-23. U.S. National Archives and Records Administration, San Bruno, California.
- ^ Wadley, James B. Indian Citizenship and the Privileges and Immunities Clauses of the United States Constitution: An Alternative to the Problems of the Full Faith and Credit and Comity?. Southern Illinois University Law Journal. Fall 2006, 31: 47.
- ^ An Act to authorize the Secretary of the Interior to issue certificates of citizenship to Indians. Pub.L. 68–175; 43 Stat. 253. June 2, 1924.
- ^ Haas, Theodore. The Legal Aspects of Indian Affairs from 1887 to 1957. Annals of the American Academy of Political and Social Science (Thousand Oaks, CA: SAGE Publications). 1957-5, 311: 12–22. doi:10.1177/000271625731100103. JSTOR 1032349.
- ^ "Native Americans and Eskimos", 7 FAM 1117(b). "The Act of June 2, 1924 was the first comprehensive law relating to the citizenship of Native Americans."
- ^ An Act to repeal the Chinese Exclusion Acts, to establish quotas, and for other purposes. Pub.L. 78–199; 57 Stat. 600. 1943-12-17.
- ^ An Act to amend the Immigration and Nationality Act, and for other purposes. Pub.L. 89–236; 79 Stat. 911. 1965-10-3.
- ^ Low, Elaine. An Unnoticed Struggle: A Concise History of Asian American Civil Rights Issues (PDF). San Francisco: Japanese American Citizens League: 4. 2008 [2012-01-27].
- ^ See, e.g., Rogers v. Bellei, . "The [Wong Kim Ark] Court concluded that 'naturalization by descent' was not a common law concept, but was dependent, instead, upon statutory enactment."
- ^ 137.0 137.1 See, e.g., Nishikawa v. Dulles, . "Nishikawa was born in this country while subject to its jurisdiction; therefore, American citizenship is his constitutional birthright. See United States v. Wong Kim Ark.... What the Constitution has conferred, neither the Congress, nor the Executive, nor the Judiciary, nor all three in concert, may strip away."
- ^ Kwock Jan Fat v. White, . "It is not disputed that if petitioner is the son of [his alleged parents], he was born to them when they were permanently domiciled in the United States, is a citizen thereof, and is entitled to admission to the country. United States v. Wong Kim Ark...."
- ^ Weedin v. Chin Bow, . "United States v. Wong Kim Ark ... establishes that, at common law in England and the United States, the rule with respect to nationality was that of the jus soli...."
- ^ Morrison v. California, . "A person of the Japanese race is a citizen of the United States if he was born within the United States. United States v. Wong Kim Ark...."
- ^ Hennessy v. Richardson Drug Co., . "United States v. Wong Kim Ark ... said: 'The term "citizen", as understood in our law, is precisely analogous to the term "subject" in the common law...."
- ^ Schick v. United States, . "In United States v. Wong Kim Ark ...: 'In this as in other respects, [a constitutional provision] must be interpreted in the light of the common law, the principles and history of which were familiarly known to the framers of the Constitution....'"
- ^ Kennedy v. Mendoza-Martinez, . "[The Citizenship Clause] is to be interpreted in light of preexisting common law principles governing citizenship. United States v. Wong Kim Ark...."
- ^ 144.0 144.1 144.2 Plyler v. Doe, . "Justice Gray, writing for the Court in United States v. Wong Kim Ark ... detailed at some length the history of the Citizenship Clause, and the predominantly geographic sense in which the term 'jurisdiction' was used. He further noted that it was 'impossible to construe the words "subject to the jurisdiction thereof" ... as less comprehensive than the words "within its jurisdiction" ... or to hold that persons "within the jurisdiction" of one of the States of the Union are not "subject to the jurisdiction of the United States."' ... As one early commentator noted, given the historical emphasis on geographic territoriality, bounded only, if at all, by principles of sovereignty and allegiance, no plausible distinction with respect to Fourteenth Amendment 'jurisdiction' can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful."
- ^ Asks U.S. Japanese Lose Citizenship. New York Times. 1942-06-27: 6.
- ^ Japanese Citizens Win a Court Fight. New York Times. 1942-07-03: 7.
- ^ Regan v. King, 49 F. Supp. 222 (N.D.Cal. 1942). "It is unnecessary to discuss the arguments of counsel. In my opinion the law is settled by the decisions of the Supreme Court just alluded to, and the action will be dismissed, with costs to the defendant."
- ^ Regan v. King, 134 F.2d 413 (9th Cir. 1943). "On the authority of the fourteenth Amendment to the Constitution, making all persons born in the United States citizens thereof, as interpreted by the Supreme Court of the United States in United States v. Wong Kim Ark, ... and a long line of decisions, including the recent decision in Perkins, Secretary of Labor et al. v. Elg, ... the judgment of dismissal, 49 F.Supp. 222, is Affirmed."
- ^ Regan v. King, cert. denied, 319 U.S. 753 (1943).
- ^ Nolos v. Holder, 611 F.3d 279, 284 (5th Cir. 2010). "Nolos urges that his parents acquired United States citizenship at birth because the Philippines were under the dominion and control of the United States at the time of their births. But as have the Ninth and the Second Circuits before us ... we decline to give Wong Kim Ark such an expansive interpretation. As the Second Circuit explained, the question of the territorial scope of the Citizenship Clause of the Fourteenth Amendment was not before the court in Wong Kim Ark." See also Rabang v. INS, 35 F.3d 1449, 1454 (9th Cir. 1994), and Valmonte v. INS, 136 F.3d 914, 920 (2nd Cir. 1998).
- ^ Halagao, Avelino J. Citizens Denied: A Critical Examination of the Rabang Decision Rejecting United States Citizenship Claims by Persons Born in the Philippines During the Territorial Period. UCLA Asian Pacific American Law Journal. 1998, 5: 77.
- ^ 152.0 152.1 Oforji v. Ashcroft, 354 F.3d 609 (7th Cir. 2003). "[O]ne rule that Congress should rethink ... is awarding citizenship to everyone born in the United States (... United States v. Wong Kim Ark ...), including the children of illegal immigrants whose sole motive in immigrating was to confer U.S. citzienship on their as yet unborn children.... We should not be encouraging foreigners to come to the United States solely to enable them to confer U.S. citizenship on their future children.... A constitutional amendment may be required to change the rule ... but I doubt it.... Congress would not be flouting the Constitution if it amended the Immigration and Nationality Act to put an end to the nonsense.... Our [judges'] hands, however, are tied. We cannot amend the statutory provisions on citizenship and asylum."
- ^ 153.0 153.1 "'Subject to the Jurisdiction of the United States'", 7 FAM 1111(d). "All children born in and subject, at the time of birth, to the jurisdiction of the United States acquire U.S. citizenship at birth even if their parents were in the United States illegally at the time of birth. ... Pursuant to [Wong Kim Ark]: (a) Acquisition of U.S. citizenship generally is not affected by the fact that the parents may be in the United States temporarily or illegally; and that (b) A child born in an immigration detention center physically located in the United States is considered to have been born in the United States and be subject to its jurisdiction. This is so even if the child's parents have not been legally admitted to the United States and, for immigration purposes, may be viewed as not being in the United States."
- ^ Ho (2006), p. 366. "There is increasing interest in repealing birthright citizenship for the children of aliens—especially undocumented persons."
- ^ 'Border Baby' boom strains S. Texas. Houston Chronicle. 2006-09-24 [2011-07-17].
Immigration-control advocates regard the U.S.-born infants as 'anchor babies' because they give their undocumented parents and relatives a way to petition for citizenship.
- ^ Wong, William. The citizenship of Wong Kim Ark. San Francisco Examiner. 1998-04-08 [2011-09-10].
- ^ Eastman (2006), pp. 3–4. "Such was the interpretation of the Citizenship Clause initially given by the Supreme Court, and it was the correct interpretation. As Thomas Cooley noted in his treatise, 'subject to the jurisdiction' of the United States 'meant full and complete jurisdiction to which citizens are generally subject, and not any qualified and partial jurisdiction, such as may consist with allegiance to some other government.'"
- ^ Eastman (2006), p. 4. "Justice Gray simply failed to appreciate what he seemed to have understood in Elk [v. Wilkins], namely, that there is a difference between territorial jurisdiction, on the one hand, and the more complete, allegiance-obliging jurisdiction that the Fourteenth Amendment codified, on the other."
- ^ Eastman (2006), p. 6. "Indeed, Congress has by its own actions with respect to Native Americans—both before and after this Court's decision in Wong Kim Ark—rejected the claim that the Citizenship Clause itself confers citizenship merely by accident of birth. None of these citizenship acts would have been necessary—indeed, all would have been redundant—under the expansive view of the Citizenship Clause propounded by Justice Gray."
- ^ Indians and Invaders: The Citizenship Clause and Illegal Aliens (PDF). University of Pennsylvania Journal of Constitutional Law (Philadelphia: University of Pennsylvania). 2008-3, 10 (3): 509 [2011-07-17].
The Court has not revisited Wong Kim Ark, but Schuck and Smith offer a reading of the Citizenship Clause that connects the exclusions to birthright citizenship with a principle of reciprocal consent or allegiance.
- ^ Graglia, Lino. Birthright citizenship for children of illegal aliens: an irrational public policy. Texas Review of Law and Politics (Austin, TX: University of Texas, Austin). 2009, 14 (1): 10.
- ^ Wood, Charles. Losing Control of America's Future—The Census, Birthright Citizenship, and Illegal Aliens. Harvard Journal of Law and Public Policy. 1999, 22: 465.
The needed reforms should be completed expeditiously.... [I]n every week that passes thousands more children of illegal aliens are born in this country, and each is now granted citizenship.... If these reforms are not accomplished one way or another soon, 'We the People of the United States' risk losing control of the nation's future.
- ^ 163.0 163.1 163.2 Rodriguez, Cristina M. The Second Founding: The Citizenship Clause, Original Meaning, and the Egalitarian Unity of the Fourteenth Amendment. University of Pennsylvania Journal of Constitutional Law. 2009, 11.
- ^ Ho, James C. Defining 'American': Birthright Citizenship and the Original Understanding of the 14th Amendment (PDF). The Green Bag. 2006, 9 (4): 368 [2012-01-06].
- ^ Ho (2006), p. 372. "Repeal proponents ... quote Howard's introductory remarks to state that birthright citizenship 'will not, of course, include ... foreigners.' But that reads Howard's reference to 'aliens, who belong to the families of ambassadors or foreign ministers' out of the sentence. It also renders completely meaningless the subsequent dialogue between Senators Cowan and Conness over the wisdom of extending birthright citizenship to the children of Chinese immigrants and Gypsies."
- ^ Plyler v. Doe, .
- ^ 167.0 167.1 Eisgruber, Christopher L. Birthright Citizenship and the Constitution. New York University Law Review. 1997, 72: 54–96.
- ^ Ho, James C. Commentary: Birthright Citizenship, the Fourteenth Amendment, and State Authority. University of Richmond Law Review. 2008-3, 42: 973.
- ^ Dunklee, Dennis R.; Shoop, Robert J. The Principal's Quick-Reference Guide to School Law. Thousand Oaks, CA: Corwin Press. 2006: 241. ISBN 978-1-4129-2594-5.
- ^ Plyler v. Doe, 457 U.S. at 243. "I have no quarrel with the conclusion that the Equal Protection Clause of the Fourteenth Amendment applies to aliens who, after their illegal entry into this country, are indeed physically 'within the jurisdiction' of a state."
- ^ Ho (2006), p. 374. "This sweeping language [in Wong Kim Ark] reaches all aliens regardless of immigration status. To be sure, the question of illegal aliens was not explicitly presented in Wong Kim Ark. But any doubt was put to rest in Plyler v. Doe...."
- ^ Ngai, Mae M. Birthright Citizenship and the Alien Citizen. Fordham Law Review. 2007, 75: 2524.
- ^ Birthright Citizenship Act of 2009, H.R. 1868, 111th Cong. 2009-4-2.
- ^ Birthright Citizenship Act of 2011, H.R. 140, 112th Cong. 2011-1-5.
- ^ Birthright Citizenship Act of 2011, S. 723, 112th Cong. 2011-4-5.
- ^ Proposing an amendment to the Constitution of the United States relating to United States citizenship, S.J.Res. 6, 111th Cong. 2009-1-16.
- ^ Proposing an amendment to the Constitution of the United States relating to United States citizenship, S.J.Res. 2, 112th Cong. 2011-1-25.
- ^ Citizenship-By-Birth Faces Challenges. National Public Radio. 2010-05-28 [2012-01-29].
- ^ Arizona Senate Panel Passes Sweeping Bills Targeting Illegals, Birthright Citizenship. FOX News. 2011-02-23 [2012-01-29].
- ^ ACLU of Arizona Responds to Anti-14th Amendment Proposal Introduced Today By Arizona Lawmakers. American Civil Liberties Union. 2011-01-27 [2012-01-29].
- Foreign Affairs Manual, Volume 7 (7 FAM). United States Department of State. 2009-08-21 [2012-01-27].
- Eastman, John C. From Feudalism to Consent: Rethinking Birthright Citizenship. Legal Memorandum No. 18 (Washington D.C.: Heritage Foundation). 2006-03-30 [2011-07-02].
- Elinson, Elaine; Yogi, Stan. Wherever There's a Fight: How Runaway Slaves, Suffragists, Immigrants, Strikers and Poets Shaped Civil Liberties in California. Berkeley, CA: Heyday Books. 2009. ISBN 978-1-59714-114-7.
- Epps, Garrett. The Citizenship Clause: A 'Legislative History'. American University Law Review. 2010, 60 (2): 329–388 [2012-01-14].
- Glen, Patrick J. Wong Kim Ark and Sentencia que Declara Constitucional la Ley General de Migración 285-04 in Comparative Perspective: Constitutional Interpretation, Jus Soli Principles, and Political Morality. University of Miami Inter-American Law Review. Fall 2007, 39 (1): 67–109. JSTOR 40176768.
- Ho, James C. Defining 'American': Birthright Citizenship and the Original Understanding of the 14th Amendment (PDF). The Green Bag. 2006, 9 (4): 366 [2012-01-06].
- Rodriguez, Cristina M. The Second Founding: The Citizenship Clause, Original Meaning, and the Egalitarian Unity of the Fourteenth Amendment. University of Pennsylvania Journal of Constitutional Law. 2009, 11: 1363–1371.
- Salyer, Lucy E. Wong Kim Ark: The Contest Over Birthright Citizenship. (编) Martin, David; Schuck, Peter. Immigration Stories. New York: Foundation Press. 2005. ISBN 1-58778-873-X.
- Semonche, John E. Charting the Future: The Supreme Court Responds to a Changing Society, 1890–1920. Westport, CT: Greenwood Press. 1978. ISBN 0-313-20314-8. LCCN 77-94745.
- Woodworth, Marshall B. Citizenship of the United States under the Fourteenth Amendment. American Law Review (St. Louis: Review Pub. Company). 1896, 30: 535–555.
- Woodworth, Marshall B. Who Are Citizens of the United States? Wong Kim Ark Case. American Law Review (St. Louis: Review Pub. Company). 1898, 32: 554–561.
- 亨尼斯诉理查森药品有限公司案（Hennessy v. Richardson Drug Co.）：
- 罗金发诉怀特案（Kwock Jan Fat v. White，音译）：
- 韦汀诉金宝案（Weedin v. Chin Bow，音译）：
- 里根诉金案： （调卷令驳回）
- 肯尼迪诉门多扎-马丁尼兹案（Kennedy v. Mendoza-Martinez）：
- 陆天先案：21 F. 905 (D.Cal. 1884)
- 贾福先诉美国案（Gee Fook Sing v. U.S.，音译）：49 F. 146 (9th Cir. 1892)
- 里根诉金案：134 F.2d 413 (9th Cir. 1943)
- 拉邦诉移民归化局（Rabang v. INS）：35 F.3d 1449 (9th Cir. 1994)
- 弗尔蒙特诉移民归化局案（Valmonte v. INS）136 F.3d 914 (2nd Cir. 1998)
- 奥弗吉诉阿什克罗夫特案（Oforji v. Ashcroft）：354 F.3d 609 (7th Cir. 2003)
- 诺洛斯诉霍尔德案（Nolos v. Holder）： 611 F.3d 279 (5th Cir. 2010)
- 林奇诉克拉克案：3 N.Y.Leg.Obs. 236 (N.Y. 1844)