June 13, 2018: The Supreme Court and Progress: United States v. Wong Kim Ark

[On June 12^th, 1967, the Supreme Court ruled in Loving v. Virginia to strike down all remaining laws prohibiting interracial marriage. So this week I’ll AmericanStudy Loving and four other cases in which the Court helped advance social progress, leading up to a special weekend post on the role of courts and judges in our own society!]

On a surprisingly positive and a surprisingly negative side to comparing two Supreme Court decisions.

In 1895, a Chinese American resident of San Francisco named Wong Kim Ark returned from a visit to China and was denied re-entry to the United States and detained for five months on a ship off the coast of California. Wong had been born in San Francisco to Chinese immigrant parents a couple decades earlier (his exact birth year is unknown), but the Scott Act (1888), a follow-up law to and extension of the Chinese Exclusion Act, had made it illegal for most Chinese Americans to leave the United States and then seek to return. With the help of legal aid from the Chinese Consolidated Benevolent Association, a community and historical association that had been formed in 1882 (the same year that Congress passed the Chinese Exclusion Act), Wong filed a writ of habeas corpus in federal district court, seeking not only to end his detention but also and especially to establish his birthright citizenship under the 14^th Amendment. The case eventually made its way to the Supreme Court, which in March 1898 ruled 6-2 in favor of Wong, noting that “the American citizenship which Wong Kim Ark acquired by birth within the United States has not been lost or taken away by anything happening since his birth.”

This ground-breaking and progressive Supreme Court decision was pleasantly surprising for a number of reasons, including the Court’s own recent history. For one thing, in Chae Chan Ping v. United States (1889) the Court had ruled that both the Chinese Exclusion Act and the Scott Act were Constitutional, enshrining the exclusion era’s ethnic discriminations and blatant xenophobia in national law. For another thing, just two years before the Wong Kim Ark decision the Court had issued the Plessy v. Ferguson (1896) ruling, a legal validation of Jim Crow racial segregation (under the guise of “separate but equal”) that I would argue comprised one of the true low points in Supreme Court and American legal history. That the exact same Court could rule as they did in Wong Kim Ark (and do so overwhelmingly, with the 6-2 ruling providing a nearly obverse reflection of the 7-1 decision in Plessy), while of course also reflecting the complexity of law and precedent and the like, was nonetheless a very happy surprise, and one that has had hugely significant legacies for both Chinese Americans specifically and the concept of birthright citizenship overall.

Yet history is messy and complicated, and comparing the Wong and Plessy decisions also yields a more negative surprise. The lone dissenter in Plessy had been Justice John Marshall Harlan, who wrote a long and eloquent dissent that opposed segregation and argued that “Our Constitution is color-blind” and “in respect of civil rights, all citizens are equal under the law. The humblest is the peer of the most powerful.” Yet in a lesser-known section of that dissent, Harlan compares African Americans to “the Chinese race,” calling the latter “a race so different from our own that we do not permit those belonging to it to become citizens of the United States” yet noting that Chinese Americans are still allowed to ride in white railroad cars under Jim Crow. And this anti-Chinese sentiment foreshadowed Harlan’s dissent in Wong Kim Ark, in which he (along with Chief Justice Melville Fuller) once again reiterated his belief (stated in a public lecture just before the Wong decision) that “this is a race utterly foreign to us and never will assimilate with us.” Better remembering the Wong Kim Ark decision, then, at one and the same time improves the image of the Plessy court and yet complicates our collective memories of Plessy’s inspiring dissent.

Next decision tomorrow,

Ben

PS. What do you think? Other Supreme Court decisions or contexts you’d highlight?