Politics > Supreme Court

What’s Wrong With Wong Kim Ark?

The Supreme Court ignored legislative intent, which would have settled the matter against birthright citizenship, and mucked about with unnecessary common law.

Button Gwinnett | April 17, 2026

Political writers often refer to the Supreme Court’s 1898 decision in United States v. Wong Kim Ark as the ultimate authority on birthright citizenship, natural born citizenship, and the citizenship status of controversial “anchor babies.” Because it forms the underlying precedent for current interpretations of citizenship law, it’s instructive to examine the case in detail.

In 1898, Congress had not formalized permanent residence in the United States. Immigration was loosely controlled. Essentially, anyone who entered the U.S. through a port of entry was considered a potential immigrant and was regarded as a permanent legal resident. Nothing resembling a green card existed until the Alien Registration Act of 1940.

Similarly, there was no visa system in place in 1898. That concept didn’t begin to emerge until the Immigration Act of 1917. Only then, during WWI, did we begin “[t]he practice of requiring all aliens to obtain visas from U.S. officials abroad before departure for the United States...” Only when Congress acted did we develop the modern rigorous means to distinguish ‘visitors’ from ‘residents.’

Given the timeline of immigration law developments, when Congress debated and ratified the 14th Amendment, particularly its citizenship clause, it did not define what constituted residence in a state or what was meant by the words “under the jurisdiction thereof.” Similarly, the Constitution does not define the terms “citizen,” “persons,” or “natural born citizen.” Absent explicit definitions from the Framers or Congress, the Wong Kim Ark Court said it had the responsibility to define the terms:

The constitution nowhere defines the meaning of these words, … In this, as in other respects, it must be interpreted in the light of the common law, the principles and history of which were familiarly known to the framers of the constitution. (Emphasis mine.)Advertisement if (window.publir_show_ads) { document.write(''); }

The constitution nowhere defines the meaning of these words, … In this, as in other respects, it must be interpreted in the light of the common law, the principles and history of which were familiarly known to the framers of the constitution. (Emphasis mine.)

The Court could looked to documents associated with ratifying the 14th Amendment, which would have provided information about Congress’s intentions. These documents would have included the Civil Rights Act of 1866, enacted by the previous Congress and with the same authors as the 14th Amendment. It could also have looked at the Congressional Globe, where the........

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