On Sept. 8, 1895, the San Francisco Chronicle ran an update on the latest court cases involving Chinese nationals. In this particular article, immigrant agent Wise reported that he had denied entry to a San Francisco-born man, Wong Kim Ark, who was returning from a visit to China. Wise stated as justification for blocking Wong’s reentry to the U.S. that Wong was a cook from China. Despite the fact that Wong carried papers attesting to his American citizenship, inspectors viewed him as a subject of China because of his ancestry and therefore could not be a U.S. citizen.
Wong’s case would mark the beginning of a four-year legal battle. The end result, Wong Kim Ark v. United States, established birthright citizenship for all born on U.S. soil, regardless of the origin or citizenship status of their parents.
It’s hard to believe that the Supreme Court in 1898, which had ruled in favor of segregation in Plessy v. Ferguson just two years before, could make such a decision. Yet the Supreme Court ruled in favor of Wong Kim Ark because the principles of jus solis, going back to English common law, had defined citizenship for centuries. As Justice Horace Gray wrote in his majority opinion: “The 14th 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 here born of resident aliens, with the exceptions or qualifications.” The decision helped enshrine the 14th Amendment, what Justice Robert Jackson later rightfully described as “an anticaste, antisubordination reset for the Nation” after the Civil War, as a shining legacy of Reconstruction that has reshaped our nation for the better.
Recently, the U.S. Supreme Court, in a surprisingly narrow 5-4 decision, upheld Wong Kim Ark in striking down on constitutional grounds President Donald Trump’s executive order challenging birthright citizenship.
This case should have never come to court. By now, the principle of birthright citizenship should be settled constitutional law. Over the decades since the 14th Amendment’s ratification in 1868, countless challenges to birthright citizenship have been brought and rejected. Many of them, like Wong Kim Ark, have taken place in California. Perhaps the rest of the country can take a lesson from California history.
The most notable challenges occurred in the wake of the wartime removal and incarceration of Japanese Americans. In May 1942, two cases appeared on the dockets of the U.S. District Court for the Northern District of California. The first, Fisk v. Wade, was a lawsuit submitted by James Fisk of the California Legion against Alameda County Clerk G.E. Wade. The second, Regan v. King, was a suit brought by Native Sons of the Golden West head John T. Regan against Cameron King, San Francisco registrar of voters.
The plaintiffs in both suits made the same request: to strip Japanese Americans of their birthright citizenship to prevent them from voting in the 1942 primary election.
Regan and Fisk, who coordinated their suits, each argued that Japanese Americans inherently owe their allegiance to Japan, and should therefore be ineligible to vote. In each case, the plaintiffs argued that if Japanese Americans were allowed to vote, white citizens would be deprived of an “adequate and proportionate share of influence in the election.”
Both legal challenges were initially rejected by the district court; only Regan’s case received the consideration of the 9th Circuit Court of Appeals in February 1943. Ulysses S. Webb, former California attorney general, argued on behalf of Regan. He told the judges of the 9th Circuit that the Supreme Court had “erroneously decided” Wong Kim Ark v. United States, arguing that claims of birthright were only for white Americans, and that the 14th Amendment applied only to formerly enslaved Black people. After Webb finished, and before even hearing the defense, the judges told the plaintiffs that the case would be dismissed.
U.S. Sen. Tom Stewart of Tennessee appealed to the Supreme Court in support of Regan, claiming that Japanese Americans “haven’t got the American ideal, and can never have [it].” The Supreme Court, though it ultimately upheld the constitutionality of Japanese American removal, chose to not hear Regan’s appeal. Even amid internment, anti-Japanese prejudice was not powerful enough to overturn birthright citizenship.
The Regan and Fisk cases would mark the high-water mark for challenges to birthright citizenship in the U.S. until 2025. While less focused on constitutional changes, California voters five decades later used Proposition 187 to challenge the rights of birthright citizens. Like Regan v. King, Prop. 187 is now, too, dead — a federal court blocked its implementation. Coming of age amid the debates over Prop. 187 was a Santa Monica student named Stephen Miller, now White House chief of staff for policy.
In the last few years, Trump, Miller, the conservative judges on the Supreme Court and an indifferent Congress have attempted to fundamentally alter the definition of American citizenship to their view — one not unlike those of John T. Regan. Like anti-Japanese bigots eight decades ago, the bitter xenophobic creed preached by Trump and his acolytes against immigrants of color, notably Haitian Americans, has infected American political discourse. The recent White House report, “Saving America’s Story,” complained that the Smithsonian Institution’s National Museum of American History portrays “restrictive immigration laws” such as the Chinese Exclusion Act as a “tool of white supremacy” — a fact long established by historians.
Two hundred and fifty years after independence, and 128 years after Wong Kim Ark’s case, we are still asking ourselves who counts as an American. If there is a lesson from Regan v. King, it is that white supremacy is inherently contradictory to the American ethos of equality. To support it would undermine the core principles the country stands for.
