United States v. Wong Kim Ark and Birthright Citizenship

In United States v. Wong Kim Ark, decided March 28, 1898, the Supreme Court ruled 6–2 that a child born on American soil to parents who are foreign nationals is a United States citizen at birth under the Fourteenth Amendment. Justice Horace Gray, writing for the majority, said the amendment “affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children born here of resident aliens.”¹ The decision has controlled American birthright citizenship for more than 125 years and sits at the center of the legal fight over a 2025 executive order that would narrow it.

Who Wong Kim Ark Was and Why He Was Denied Entry

Wong Kim Ark was born in San Francisco in 1873. His parents were subjects of the Emperor of China who lived permanently in the United States and ran a business in the city. They never became citizens, because federal law would not let them: beginning in 1882, Congress passed a series of Chinese Exclusion Acts that barred Chinese immigrants already in the country from naturalizing.

Wong Kim Ark grew up in San Francisco. He traveled to China once and returned without incident. In 1894 he left again on a temporary visit, and when he came back aboard the steamship Coptic in August 1895, the collector of customs refused to let him land. The government’s position was that he was “a Chinese person and a subject of the Emperor of China” because his parents were Chinese, and that no privileged exemption from the Exclusion Acts applied to him. A habeas corpus petition was filed on his behalf in the U.S. District Court for the Northern District of California on October 2, 1895, arguing that his detention violated the Constitution because he was a citizen by birth.¹

The Constitutional Question

The case turned on a single sentence in the Fourteenth Amendment, ratified in 1868: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”²

Both sides agreed Wong Kim Ark was born in the United States. The fight was over five words: “subject to the jurisdiction thereof.” The government argued those words required a political allegiance the child of Chinese parents could never possess, because his parents themselves were legally barred from becoming Americans. Wong Kim Ark’s lawyers argued the phrase meant what it plainly said — being subject to American law, which every resident is the moment they set foot in the country.

What the Majority Held

Justice Gray, writing for six justices, sided with the common-law understanding of citizenship by birthplace. The Fourteenth Amendment, the Court said, was “declaratory of the fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country.” If you are born here to parents who live here and follow the law, you are a citizen. The nationality of your parents is not relevant.³

The Court traced the birthplace rule through English common law, colonial practice, and post-independence American decisions to show it had always been the default. Ruling the other way, Gray wrote, would “deny citizenship to thousands of persons of English, Scotch, Irish, German, or other European parentage, who have always been considered and treated as citizens of the United States.”³

The Court also read “subject to the jurisdiction” narrowly. Resident aliens who live in the country, work here, and obey the law are under American jurisdiction in every meaningful sense. They are not diplomats with immunity, and they are not enemy soldiers. Their children are born into American legal authority. The Chinese Exclusion Acts, passed fourteen years after the Fourteenth Amendment, “cannot control [the amendment’s] meaning or impair its effect, but must be construed and executed in subordination to its provisions.”¹

The Dissent’s Alternative Theory

Chief Justice Melville Fuller, joined by Justice John Marshall Harlan, dissented. They argued American law should follow jus sanguinis, the right of blood, rather than jus soli, the right of soil. Under their theory, a child’s citizenship comes from the parents’ nationality, not the location of birth.

Fuller called the English common-law rule a feudal relic tied to permanent allegiance owed to a lord. He argued the American system, built on consent, should not be bound by it, and that the Fourteenth Amendment was not intended to grant automatic citizenship to children of parents who were legally barred from naturalizing. The dissent’s most far-reaching claim was that Congress and the President, through treaty and naturalization laws, retained the power to “prescribe that all persons of a particular race, or their children, cannot become citizens.” That view lost. The majority’s holding has controlled the law ever since.¹

The Narrow Exceptions to Birthright Citizenship

The Court identified three categories of people born on American soil who fall outside the “subject to the jurisdiction” requirement and so do not receive birthright citizenship:

Children of foreign diplomats, because ambassadors and ministers carry their home nation’s sovereignty and enjoy immunity from American law.
Children born aboard foreign public vessels, such as a warship in American waters, which is treated as an extension of the foreign nation’s territory under international law.
Children born to enemy forces during a hostile occupation of American territory.

These exceptions are deliberately narrow. Births to tourists, temporary workers, and unauthorized immigrants all fall under the general rule.³

How the Rule Applies to Native Americans

One group Wong Kim Ark did not resolve was Native Americans. Fourteen years earlier, in Elk v. Wilkins (1884), the Supreme Court held that a Native American born as a member of a recognized tribe was not a citizen under the Fourteenth Amendment, even if he later left the tribe. Tribal members, the Court reasoned, owed “immediate allegiance” to their tribe and so were not “subject to the jurisdiction” of the United States.⁴

Congress closed the gap by statute. The Indian Citizenship Act of 1924 declared all Native Americans born within the United States to be citizens regardless of tribal membership, a principle now codified at 8 U.S.C. § 1401.⁵

Birthright Citizenship in Federal Law Today

The rule from Wong Kim Ark is written into the Immigration and Nationality Act. Under 8 U.S.C. § 1401(a), a person born in the United States “and subject to the jurisdiction thereof” is a national and citizen at birth. The statute separately addresses children born abroad to American parents, but those provisions require the citizen parent to satisfy specific physical-presence requirements before the child’s birth. Birth on American soil is different: citizenship attaches automatically, without conditions.⁵

The 2025 Executive Order and the Pending Supreme Court Case

On January 20, 2025, the President signed an executive order titled “Protecting the Meaning and Value of American Citizenship,” directing federal agencies to stop recognizing birthright citizenship for two groups of children born on American soil: those whose mothers were unlawfully present and whose fathers were not citizens or lawful permanent residents, and those whose mothers were only temporarily present and whose fathers were not citizens or lawful permanent residents. The order was set to take effect 30 days after signing.⁶

Federal judges in Seattle, Maryland, and Massachusetts blocked the order before it could take effect. One judge called birthright citizenship “a fundamental constitutional right.” Another said “no court in the country has ever endorsed the president’s interpretation” of the Fourteenth Amendment. The case, Trump v. Barbara, reached the Supreme Court on an expedited schedule, with oral arguments held on April 1, 2026. The Court has not yet issued a decision. The legal question is whether the executive branch can narrow the Citizenship Clause by order, or whether Wong Kim Ark settled that question in 1898.

1
Justia U.S. Supreme Court Center. United States v. Wong Kim Ark, 169 U.S. 649 (1898)
2
Congress.gov. U.S. Constitution – Fourteenth Amendment
3
Legal Information Institute. United States v. Wong Kim Ark
4
Library of Congress. Elk v. Wilkins, 112 U.S. 94 (1884)
5
Office of the Law Revision Counsel. 8 USC 1401 – Nationals and Citizens of United States at Birth
6
The White House. Protecting the Meaning and Value of American Citizenship