Donald Trump and Wong Kim Ark

After more than a century, Wong Kim Ark is in the news again — although presidential candidates seldom mention his name.  In United States v. Wong Kim Ark (1898), the Supreme Court ruled that Wong was a U.S. citizen because he was born here.  The Government argued that he was not because his parents were “subjects of the emperor of China,” and Wong himself is “also a Chinese person, and a subject of the emperor of China.”  In addition, the Chinese Exclusion Act provided Chinese already in the United States were ineligible for citizenship, and our treaty with China in 1868 stated, “nothing herein contained shall be held to confer naturalization … upon the subjects of China in the United States.”

None of that mattered because the first sentence of the Fourteenth Amendment says, “‘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.”  Donald Trump has built his political campaign challenging that. He wants a statute taking away birthright citizenship, hoping that the Supreme Court will reject precedent.  Sen. Harry Reid, (D-Nev.) proposed such a law in 1993.  Alternately, Trump wants to amend the Fourteenth Amendment. Neither is going to happen.

{mosads}Trump argues that “subject to the jurisdiction thereof” means that the person is not born of parents who are subjects of foreign powers.  That’s not what the Court says.  Although aliens have allegiance to another country, while they’re here, they are subject to our jurisdiction.  In contrast, the Russian ambassador and his family are not subject to our jurisdiction because of diplomatic immunity.

No court has ever held that illegal aliens cannot obtain birthright citizenship.  I.N.S. v. Rios-Pineda (1985), involved a married couple who entered the United States illegally.  By the time of the final deportation proceedings, the wife, in the words of the Supreme Court, “had given birth to a child, who, born in the United States, was a citizen of this country.”  There were no dissents.

The history of Wong’s family tells us a lot about the genius of the Fourteenth Amendment.  There are at least 60 million Wongs in the world today. They trace their family clan back to about 2637 B.C., when Huang Ti conquered a vast area along the lower Yellow River and then granted land to his aides, including one Nom Look, who became the first Wong, a name meaning “of earth or yellow color.”   Wong’s parents came to the United States for the same reasons that my parents came — to work and take advantage of the opportunity America offers.

What if the Wong case had come out the other way and Wong Kim Ark could not be a citizen, even though he was born and lived here?  He and others like him would remain a permanent underclass, living in the shadows.  If he could not secure citizenship by birth, neither could his children or his children’s children. They would fear deportation because of what their parents (or the parents of their parents) did before they were born.

Wong was not like that because, as a citizen, he had a stake in the country, the same opportunity of others to thrive here. And thrive they did.  Wong was a simple cook, but his relatives and descendants included Anna May Wong, the first Chinese to become a Hollywood star, cinematographer James Wong Howe (with two Oscars), and Willy “Woo Woo” Wong, of the University of San Francisco Dons, the first Chinese-American (only 5’5”) to play basketball in Madison Square Garden.  On the 100^th anniversary of the Wong decision, when his great-granddaughter, Alice Wong, visited the National Archives & Records Administration to look at the historical records, people asked for her autograph.

Trump now wants to deport 11 million undocumented aliens (those who came legally and overstayed their visas or those who entered the United States illegally).  Even if it were realistic to deport 1 million people per year, every year, that will still  take 11 years.  Dictatorships engage in mass deportations. In the history of the world, no democracy ever has.

There are better solutions.  The Constitution does not require that alien-parents of children born in the United States have a preference in the queue to become citizens.  Only a statute says that.  Congress (instead of giving amnesty to these 11 million) could give them work permits, so they can leave the underground economy.  If they want to become citizens and vote, they get at the end of the line and wait. We can secure our borders.

What we should not do is what Trump proposes.  To amend the Fourteenth Amendment is a desecration, akin to painting a moustache on the Mona Lisa in an attempt to improve it.

Rotunda is Doy & Dee Henley Chair and Distinguished Professor of Jurisprudence, Chapman University, Fowler School of Law.