In the Wong Kim Ark Supreme Court case, decided in 1898, the justices ruled 6–2 that a child born on American soil to parents who are resident aliens is a citizen of the United States under the Fourteenth Amendment.1Justia U.S. Supreme Court Center. United States v. Wong Kim Ark Birthplace, not the parents’ nationality or immigration status, decides citizenship at birth. That rule has never been overturned, and it is the rule at the center of the birthright-citizenship fight now in the courts.
Who Wong Kim Ark Was
Wong Kim Ark was born in 1873 at 751 Sacramento Street in San Francisco. His parents were subjects of the Emperor of China who had established a permanent home in the city and were carrying on business there. They were not diplomats. He grew up to work as a laborer.
In 1894 he left for a temporary visit to China, meaning to return. When he sailed back into San Francisco aboard the steamship Coptic in August 1895, the collector of customs refused to let him land. The only reason given was that he was not a citizen of the United States.1Justia U.S. Supreme Court Center. United States v. Wong Kim Ark The refusal came against the backdrop of the Chinese Exclusion Act, which since 1882 had suspended the entry of Chinese laborers and barred Chinese nationals from naturalizing.2National Archives. Chinese Exclusion Act (1882)
The Question Before the Court
The justices framed the issue narrowly: does a child born in the United States to parents of Chinese descent who are subjects of the Emperor of China, but who have a permanent home and business here and hold no diplomatic or official position, become a citizen at birth under the Fourteenth Amendment?3Legal Information Institute. United States v. Wong Kim Ark
The Court answered yes.
How the Majority Read the Fourteenth Amendment
The Citizenship Clause, ratified in 1868, provides that “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.”4Congress.gov. Fourteenth Amendment Justice Horace Gray, writing for the majority, treated those words as a constitutional codification of an old rule rather than an invention.
That old rule was jus soli, the right of the soil. Gray traced it to Calvin’s Case, decided in 1608 by the full English judiciary, which held that anyone born within the King’s dominions owed allegiance to the sovereign and was entitled to the sovereign’s protection.1Justia U.S. Supreme Court Center. United States v. Wong Kim Ark English law had followed that principle for three centuries before American independence, the American colonies inherited it, and the young republic kept it. The Amendment, on the majority’s reading, wrote that inherited practice into the Constitution.
The majority also read the Amendment alongside the Civil Rights Act of 1866, which declared “all persons born in the United States and not subject to any foreign power, excluding Indians not taxed” to be citizens.5SDSU Loveman. Civil Rights Act of 1866 The point of writing the rule into the Constitution was to place it beyond the reach of ordinary legislation.
What “Subject to the Jurisdiction” Means
The most consequential piece of the opinion is its reading of “subject to the jurisdiction thereof.” The government argued the phrase required complete political allegiance, which children of foreign nationals could not give. The majority rejected that. Gray read the phrase as territorial: the obligation of every person within the country’s borders to obey its laws. The words were to be understood, he wrote, “in the same sense in which the like words had been used by Chief Justice Marshall,” meaning “within the limits and under the jurisdiction of the United States.”3Legal Information Institute. United States v. Wong Kim Ark
Because Wong Kim Ark’s parents lived here permanently, ran a business here, and held no diplomatic post, they owed obedience to American law. Their child, born on American soil, was under the same jurisdiction. That reasoning decoupled the child’s citizenship from the parents’ immigration status. It did not matter that Chinese nationals were statutorily barred from naturalization. It did not matter that the parents remained subjects of a foreign sovereign. Congress could not, through immigration statutes aimed at the parents, override the constitutional right of a child born on domestic soil.
The Dissent
Chief Justice Melville Fuller, joined by Justice John Marshall Harlan, dissented. They read “subject to the jurisdiction” as demanding political allegiance, not mere physical presence. On their view, a person could not be subject to the jurisdiction of the United States while still owing allegiance to a foreign sovereign, and the child of foreign subjects inherited the parents’ status.
Granting citizenship in such cases, Fuller warned, would create “double allegiance.”1Justia U.S. Supreme Court Center. United States v. Wong Kim Ark The dissent favored jus sanguinis, citizenship by blood, and worried that a pure birthplace rule would strip Congress of control over who could claim to be American. It lost by four votes.
The Narrow Exceptions
The majority did recognize exceptions, but described them as “as old as the rule itself” and kept them narrow.3Legal Information Institute. United States v. Wong Kim Ark A child is not born “subject to the jurisdiction” of the United States if born to an accredited foreign diplomat, born aboard a foreign public vessel in American waters, or born to enemy forces during a hostile occupation of U.S. territory.
The diplomatic exception is the one most often invoked and is still narrow in practice. Whether it applies turns on whether the parent appeared on the State Department’s “Blue List” at the time of birth, not simply on whether the parent held an A or G visa, since not every such visa carries full diplomatic immunity. A child within this exception is not a citizen under the Fourteenth Amendment but may be recorded as a lawful permanent resident at birth.6U.S. Citizenship and Immigration Services. Children Born in the United States to Accredited Diplomats7eCFR. 8 CFR 1101.3 – Creation of Record of Lawful Permanent Resident Status for Person Born Under Diplomatic Status in the United States
One Group the Case Did Not Reach
Wong Kim Ark did not settle citizenship for Native Americans born in tribal communities. 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 after leaving the tribe voluntarily. The Court reasoned that tribal members owed primary allegiance to their tribes and were therefore not “subject to the jurisdiction” of the United States in the sense the Amendment required.8Justia U.S. Supreme Court Center. Elk v. Wilkins That gap was closed by statute, not by the courts. The Indian Citizenship Act of 1924 declared “all non-citizen Indians born within the territorial limits of the United States” to be citizens.9GovTrackUS. Indian Citizenship Act of 1924
Why the Case Still Matters
The rule announced in 1898 is now backed up by federal statute. The Immigration and Nationality Act of 1952, at 8 U.S.C. § 1401(a), grants citizenship at birth to “a person born in the United States, and subject to the jurisdiction thereof.”10Office of the Law Revision Counsel. 8 USC 1401 – Nationals and Citizens of the United States at Birth The statutory language tracks the Fourteenth Amendment almost exactly. Any effort to narrow birthright citizenship has to get past both.
That is where the 2025 litigation comes in. On January 20, 2025, President Trump signed Executive Order 14160, directing federal agencies to deny citizenship to children born in the United States when the mother was present lawfully but temporarily — on a tourist, student, or work visa — and the father was not a citizen or lawful permanent resident. Federal district courts in Maryland, Washington, and Massachusetts issued preliminary injunctions, finding the order likely unconstitutional under the Fourteenth Amendment and unlawful under 8 U.S.C. § 1401(a).11Congress.gov. Birthright Citizenship – Litigation Status Update In June 2025, the Supreme Court narrowed those injunctions to the parties who had sued, without ruling on the underlying constitutional question.12Supreme Court of the United States. Trump v. CASA, Inc. As of early 2026, the Court was hearing oral arguments on whether the order itself is constitutional, with a decision pending.
The arguments in that case are the arguments from 1898. The government’s position — that “subject to the jurisdiction” requires something beyond physical presence and excludes the children of temporary visitors — is Chief Justice Fuller’s dissent. The challengers rely on Justice Gray’s majority: territorial jurisdiction is the constitutional standard, and a child born on American soil to parents who owe obedience to American law is a citizen. More than 125 years later, both sides still have to answer Wong Kim Ark.