Birthright Citizenship on Trial: Elk v. Wilkins and United States v. Wong Kim Ark

74 Pages Posted: 1 Jun 2015 Last revised: 3 May 2016

See all articles by Bethany Berger

Bethany Berger

University of Connecticut School of Law

Date Written: April 29, 2016

Abstract

In the summer of 2015, the majority of Republican candidates for President announced their opposition to birthright citizenship. The constitutional dimensions of that right revolve around two cases decided at the end of the nineteenth-century, Elk v. Wilkins (1884) and United States v. Wong Kim Ark (1898). The first held that an American Indian man born in the United States was not a citizen under the fourteenth amendment; the second, that a Chinese American man born in the United States was indeed a citizen under the amendment. This Article juxtaposes the history of these decisions. By showing the distinctive constitutional and political status of Native peoples, this history makes clear the unconstitutionality of efforts to limit birthright citizenship and the consistency of Elk with the egalitarian ideals of the Fourteenth Amendment.

Further, by providing new facts about the litigants, lawyers, and communities in these cases, this history provide new perspectives on the meaning of citizenship and its role in judicial and administrative law. Although John Elk’s non-Native lawyers presented him as seeking to assimilate and abandon his tribe, Elk was part of a Winnebago community and likely sought only freedom from the federal government’s aggressive policies of land acquisition and domination. While Wong Kim Ark’s lawyers were products of an organized Chinese migrant community, Wong also likely sought citizenship less as a quest for full assimilation than as an effort to maintain his transnational family in the face of exclusionary immigration policies. Wong’s citizenship, however, permitted his Chinese-born son to migrate to the United States, be drafted into the Army in World War II, and make a career with the Merchant Marines. The histories also show the limits of judicial action, as Congress quickly undermined the effect of each opinion, and the divergent opinions both contributed to expanded administrative power. Together, these histories challenge idealized concepts of citizenship, freedom, and individual action that remain with us today, and provide a richer understanding of race, constitutional doctrine, and administrative structure in the United States.

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Keywords: citizenship, immigration, American Indians, Chinese Americans, legal history, Fourteenth Amendment

JEL Classification: K10

Suggested Citation

Berger, Bethany, Birthright Citizenship on Trial: Elk v. Wilkins and United States v. Wong Kim Ark (April 29, 2016). 37 Cardozo Law Review 1185, 2016. Available at SSRN: https://ssrn.com/abstract=2610859

Bethany Berger (Contact Author)

University of Connecticut School of Law ( email )

65 Elizabeth Street
Hartford, CT 06105
United States

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