This is an accepted version of this page
133-547: United States v. Wong Kim Ark , 169 U.S. 649 (1898), was a landmark decision of the U.S. Supreme Court which held that "a child born in the United States, of parents of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicile and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under
266-474: A safe haven if celebrated in an Anglican church. Still, many "clandestine" marriages occurred. In many societies, people born out of wedlock did not have the same rights of inheritance as those within it, and in some societies, even the same civil rights . In the United Kingdom and the United States, as late as the 1960s and in certain social strata even up to today, nonmarital birth has carried
399-418: A social stigma . In previous centuries unwed mothers were socially pressured to give their children up for adoption . In other cases nonmarital children have been reared by grandparents or married relatives as the "sisters", "brothers" or "cousins" of the unwed mothers. In most national jurisdictions , the status of a child as a legitimate or illegitimate heir could be changed—in either direction—under
532-400: A 25 percent increase from 2002. Most births to teenagers in the United States (86% in 2007) are nonmarital; in 2007, 60% of births to women 20–24, and nearly one-third of births to women 25–29, were nonmarital. In 2007, teenagers accounted for just 23% of non-marital births, down steeply from 50% in 1970. In 2014, 42% of all births in the 28 EU countries were nonmarital. The percentage
665-581: A bastard to inherit on the intestacy of his parents. In canon and in civil law , the offspring of putative marriages have also been considered legitimate. Since December 2003 in England and Wales , April 2002 in Northern Ireland and May 2006 in Scotland , an unmarried father has parental responsibility if he is listed on the birth certificate . In the United States, in the early 1970s
798-510: A child conceived before the parents obtain a legal divorce . Conversely, illegitimacy , also known as bastardy , has been the status of a child born outside marriage, such a child being known as a bastard , a love child , a natural child , or illegitimate . In Scots law , the terms natural son and natural daughter carry the same implications. The importance of legitimacy has decreased substantially in Western developed countries since
931-403: A child's citizenship would be acquired by birth within a country's territory, without reference to the political status or condition of the child's parents. Under jus sanguinis , the citizenship of a child would not depend on their place of birth, but instead follow the status of a parent (specifically, the father—or, in the case of an illegitimate birth, the mother). Throughout the history of
1064-665: A citizen of the United States." It was conceded that if Wong was a U.S. citizen, "the acts of Congress known as the 'Chinese Exclusion Acts,' prohibiting persons of the Chinese race, and especially Chinese laborers, from coming into the United States, do not and cannot apply to him." In a 6–2 decision issued on March 28, 1898, the Supreme Court held that Wong Kim Ark had acquired U.S. citizenship at birth and that "the American citizenship which Wong Kim Ark acquired by birth within
1197-564: A former dean of the Chapman University School of Law , has argued that Wong Kim Ark does not entitle U.S.-born children of illegal aliens to gain automatic citizenship because, in his opinion, being subject to the jurisdiction of the United States requires a status of "full and complete jurisdiction" that does not apply to aliens who are in the country illegally. Eastman further argues that the Wong Kim Ark decision
1330-652: A series of Supreme Court decisions held that most common-law disabilities imposed upon illegitimacy were invalid as violations of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution . Still, children born out of wedlock may not be eligible for certain federal benefits (e.g., automatic naturalization when the father becomes a US citizen) unless the child has been legitimized in
1463-579: A village near his familial one. Returning to the United States in 1890, he left behind in Taishan not only his parents but also his wife, who gave birth to their first son after he returned to California. Under the Chinese Exclusion Act of 1882, he as a laborer could not bring his wife to the United States. Upon arrival alone at San Francisco in July 1890, he was readmitted on the ground that he
SECTION 10
#17327722715411596-482: Is a bastard that is born before the marriage of his parents." This definition also applied to situations when a child's parents could not marry, as when one or both were already married or when the relationship was incestuous. The Poor Act 1575 formed the basis of English bastardy law. Its purpose was to punish a bastard child's mother and putative father, and to relieve the parish from the cost of supporting mother and child. "By an act of 1576 ( 18 Elizabeth C. 3), it
1729-567: Is considerably higher (by roughly 10%, for the EU), as marriage often takes place after the first baby has arrived. For example, for the Czech Republic, whereas the total nonmarital births are less than half, 47.7%, (third quarter of 2015) the percentage of first-born outside marriage is more than half, 58.2%. In Australia , in 1971, only 7% of births were outside of marriage, compared to 36% in 2020. The proportion of births outside of marriage
1862-410: Is governed by Scots law shall be illegitimate ...". The Legitimacy Act 1926 of England and Wales legitimised the birth of a child if the parents subsequently married each other, provided that they had not been married to someone else in the meantime. The Legitimacy Act 1959 extended the legitimisation even if the parents had married others in the meantime and applied it to putative marriages which
1995-761: Is necessarily exclusive and absolute"—and agreeing with the district judge who had heard Wong's original habeas corpus petition that comments in the Slaughterhouse Cases about the citizenship status of children born to non-citizen parents did not constitute a binding precedent—the Court ruled that Wong was a U.S. citizen from birth, via the Fourteenth Amendment, and that the restrictions of the Chinese Exclusion Act did not apply to him. An act of Congress, they held, does not trump
2128-443: Is that it does not recognize that the United States, as a sovereign power, has the right to adopt any rule of citizenship it may see fit and that the rule of international law does not furnish [by its own force] the sole and exclusive test of citizenship of the United States". In an analysis of the Wong Kim Ark case written shortly after the decision in 1898, Marshall B. Woodworth laid out the two competing theories of jurisdiction in
2261-1278: The Dominican Republic , 58% in Argentina , 55% in Mexico . In Brazil , non-marital births increased to 65.8% in 2009, up from 56.2% in 2000. In Chile , non-marital births increased to 70.7% in 2013, up from 48.3% in 2000. Even in the early 1990s, the phenomenon was very common in Latin America. For example, in 1993, out-of-wedlock births in Mexico were 41.5%, in Chile 43.6%, in Puerto Rico 45.8%, in Costa Rica 48.2%, in Argentina 52.7%, in Belize 58.1%, in El Salvador 73%, in Suriname 66%, and in Panama 80%. Out-of-wedlock births are less common in Asia: in 1993
2394-611: The Naturalization Law of 1802 had made them ineligible for naturalization either before or after his birth. Wong did not become a merchant like his father, but worked as a cook in Chinatown restaurants. In 1889, Wong Kim Ark, then in his late teens, left for China with his parents, who decided to repatriate to China and to their ancestral village in Taishan , Ong Sing. While in Taishan, Wong Kim Ark married Yee Shee from
2527-614: The Roman Catholic Church ) was traditionally very strong, the social changes of the 1960s and 1970s have led to a negative reaction of the population against the lifestyles promoted by the church. One of the explanations of the current high rates of unmarried cohabitation in Quebec is that the traditionally strong social control of the church and the Catholic doctrine over people's private relations and sexual morality has led
2660-742: The United States were born to unmarried mothers, a significant increase from the 5% of half a century earlier. That includes 73% of non-Hispanic black children, 53% of Hispanic children (of all races), and 29% of non-Hispanic white children. In 2020, the proportion was almost similar, with 40.5% of children born in the United States being born to unmarried mothers. In April 2009, the National Center for Health Statistics announced that nearly 40 percent of American infants born in 2007 were born to an unwed mother ; that of 4.3 million children, 1.7 million were born to unmarried parents,
2793-674: The University of Baltimore —has stated that "In the case of United States v. Wong Kim Ark , the United States Supreme Court held that this guarantee [of birthright citizenship] applies to children of foreigners present on American soil, even if their parents are not American citizens and indeed are not eligible to become U.S. citizens." Epps further notes that "as a practical matter, the American-born children receive recognition of their citizenship regardless of
SECTION 20
#17327722715412926-683: The University of California, Berkeley , and later an Associate Justice of the California Supreme Court , wrote that although the legislative history of the Citizenship Clause is "somewhat thin", the clause's central role is evident in the historical context of the post-Civil War period. Elizabeth Wydra, chief counsel of the Constitutional Accountability Center (a progressive think tank ), argues that both supporters and opponents of
3059-453: The University of Texas , even if Wong Kim Ark settled the status of children of legal residents, it did not do so for children of illegal residents; Graglia asserts that the case weighs against automatic birthright for illegal immigrants because the Court denied such citizenship for an analogous group, namely "children of alien enemies, born during and within their hostile occupation". Countering this view, Garrett Epps —a professor of law at
3192-448: The Wong Kim Ark decision, "The parameters of the jus soli principle, as stated by the court in Wong Kim Ark , have never been seriously questioned by the Supreme Court, and have been accepted as dogma by lower courts." A 2010 review of the history of the Citizenship Clause notes that the Wong Kim Ark decision held that the guarantee of birthright citizenship "applies to children of foreigners present on American soil" and states that
3325-629: The Wong Kim Ark opinion's use of the phrase citizenship by birth within the territory in support of claims that persons born in the Philippines during the period of its history when it was a United States possession were born in the U.S. (and thus entitled to U.S. citizenship via the Citizenship Clause). Since the 1990s, controversy has arisen in some circles over the practice of granting automatic citizenship via jus soli to U.S.-born children of illegal aliens—controversially dubbed
3458-415: The civil law : A legislative act could deprive a child of legitimacy; conversely, a marriage between the previously unmarried parents, usually within a specified time, such as a year, could retroactively legitimate a child's birth. Fathers of illegitimate children often did not incur comparable censure or legal responsibility, due to social attitudes about sex , the nature of sexual reproduction, and
3591-399: The federal circuit court for California by U.S. Supreme Court Associate Justice Stephen J. Field and two other federal judges. Lucy E. Salyer , a history professor at the University of New Hampshire , writes that Justice Field "issued an open invitation to all lawyers in the area to give their opinions on the constitutional questions involved" in the case. Field focused on the meaning of
3724-561: The nationality laws of many countries, which do not apply jus sanguinis (nationality by citizenship of a parent) to children born out of wedlock, particularly in cases where the child's connection to the country lies only through the father. This is true, for example, of the United States, and its constitutionality was upheld in 2001 by the Supreme Court in Nguyen v. INS . In the UK,
3857-535: The sexual revolution of the 1960s and 1970s and the declining influence of Christian churches, especially Catholic , Anglican , and Lutherans , in family and social life. A substantial proportion of births are now outside marriage, in multiple countries in Western Europe , the Americas , and in many former European colonies. England 's Statute of Merton (1235) stated, regarding illegitimacy: "He
3990-480: The subject to the jurisdiction thereof phrase of the Citizenship Clause, held that Look was indeed subject to U.S. jurisdiction at the time of his birth irrespective of the alien status of his parents, and on this basis ordered U.S. officials to recognize Look as a citizen and allow him to enter the United States. The Look Tin Sing ruling was not appealed and was never reviewed by the Supreme Court. A similar conclusion
4123-413: The " anchor baby " situation by some media correspondents and advocacy groups. Public debate over the issue has resulted in renewed discussion of the Wong Kim Ark decision. Some legal scholars, opposed to the idea that jus soli should apply to the children of illegal aliens, have argued that the Wong Kim Ark precedent does not apply when alien parents are in the country illegally. John C. Eastman ,
United States v. Wong Kim Ark - Misplaced Pages Continue
4256-408: The "single question" in the case to be "whether a child born in the United States, of parent[s] of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicile and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth
4389-586: The 14th century, Robert II of Scotland gifted one of his illegitimate sons estates in Bute , founding the Stewarts of Bute , and similarly a natural son of Robert III of Scotland was ancestral to the Shaw Stewarts of Greenock . In Scots law an illegitimate child, a "natural son" or "natural daughter", would be legitimated by the subsequent marriage of his parents, provided they had been free to marry at
4522-496: The 1970s and 1980s included legalization of divorce , decriminalization of adultery , introduction of gender equality in family law , and removal of the ban on contraception . In many countries there has been a dissociation between marriage and fertility, with the two no longer being closely associated—with births to unmarried couples, as well as childless married couples, becoming more common and more socially acceptable. Contributions to these societal changes have been made by
4655-471: The Citizenship Clause and observed that "[t]he fact that the decision of the court was not unanimous indicates that the question is at least debatable." Woodworth concluded, however, that the Supreme Court's ruling laid the issue to rest, saying that "it is difficult to see what valid objection can be raised thereto". Another analysis of the case, published by the Yale Law Journal (1898), favored
4788-429: The Citizenship Clause excluded from U.S. citizenship only those persons covered by one of these three exceptions (plus a fourth "single additional exception"—namely, that Indian tribes "not taxed" were not considered subject to U.S. jurisdiction). The majority concluded that none of these four exceptions to U.S. jurisdiction applied to Wong; in particular, they observed that "during all the time of their said residence in
4921-437: The Citizenship Clause in 1866 shared the understanding that it would automatically grant citizenship to all persons born in the United States (except children of foreign ministers and invading armies)—an interpretation shared by Texas Solicitor General James C. Ho. Richard Aynes, dean of the University of Akron School of Law , takes a different view, proposing that the Citizenship Clause had "consequences which were unintended by
5054-403: The Citizenship Clause needed to be interpreted in light of English common law, which had included as subjects virtually all native-born children, excluding only those who were born to foreign rulers or diplomats, born on foreign public ships, or born to enemy forces engaged in hostile occupation of the country's territory. The court's majority held that the subject to the jurisdiction phrase in
5187-598: The Constitution to be citizens. Additionally, American Indians were not originally recognized as citizens, since Indian tribes were considered to be outside the jurisdiction of the U.S. government. After the Civil War and the subsequent abolition of slavery, Congress enacted the Civil Rights Act of 1866 . One provision of this law declared as citizens, not only the freed slaves, but "all persons born in
5320-467: The Constitution; such a law "cannot control [the Constitution's] meaning, or impair its effect, but must be construed and executed in subordination to its provisions." The majority opinion referred to Calvin's Case (1608) as stating the fundamental common law principle that all people born within the King's "allegiance" were subjects, including children of "aliens in amity". Chief Justice Melville Fuller
5453-652: The Emperor of China", automatically became a U.S. citizen at birth. This decision established an important precedent in its interpretation of the Citizenship Clause of the Fourteenth Amendment to the Constitution . Wong Kim Ark, who was born in San Francisco in 1873, had been denied re-entry to the United States after a trip abroad, under the Chinese Exclusion Act , a law banning virtually all Chinese immigration and prohibiting Chinese immigrants from becoming naturalized U.S. citizens. He challenged
United States v. Wong Kim Ark - Misplaced Pages Continue
5586-506: The Federal Constitution and definitely limit citizenship to whites and blacks." As a result of Wong Kim Ark's U.S. citizenship being confirmed by the Supreme Court, Wong's eldest son came to the United States from China in 1910, seeking recognition as a citizen via jus sanguinis , but U.S. immigration officials claimed to see discrepancies in the testimony at his immigration hearing and refused to accept Wong's claim that
5719-985: The Humber , 52% in East Midlands , 50.8% in Scotland , 50.4% in West Midlands , 48.5% in South West England , 45.5% in East of England , 43.2% in Northern Ireland , 42.9% in South East England , and 35.7% in London . In France, in 2012, 66.9% of births were non-marital in Poitou-Charentes , while only 46.6% were in Ile-de-France (which contains Paris ). One of the reasons for the lower prevalence of non-marital births in
5852-767: The Magnuson Act) and the Immigration and Nationality Act of 1965 . In the years since Wong Kim Ark , the concept of jus soli citizenship has "never been seriously questioned by the Supreme Court, and [has] been accepted as dogma by lower courts". Citizenship cases since Wong Kim Ark have dealt mainly with situations falling outside the bounds of the Citizenship Clause—such as citizenship via jus sanguinis for foreign-born children of U.S. citizens, or circumstances under which U.S. citizenship may be lost. The Wong Kim Ark court's affirmation of jus soli as
5985-640: The San Francisco attorney George Collins had tried to persuade the federal Justice Department to bring a Chinese birthright citizenship case before the Supreme Court. An article by Collins was published in the May/June 1895 American Law Review , criticizing the Look Tin Sing ruling by Judge Field and the federal government's unwillingness to challenge it, and advocating the international law view of jus sanguinis citizenship. Eventually, Collins
6118-584: The Supreme Court "has not re-examined this issue since the concept of 'illegal alien' entered the language". Since the 1990s, however, controversy has arisen over the longstanding practice of granting automatic citizenship to U.S.-born children of illegal immigrants , and legal scholars disagree over whether the Wong Kim Ark precedent applies when alien parents are in the country illegally. Attempts have been made from time to time in Congress to restrict birthright citizenship, either via statutory redefinition of
6251-427: The Supreme Court chooses not to review the case. Although many cases from state supreme courts are significant in developing the law of that state, only a few are so revolutionary that they announce standards that many other state courts then choose to follow. Illegitimate Legitimacy , in traditional Western common law , is the status of a child born to parents who are legally married to each other, and of
6384-625: The Supreme Court had held in Elk v. Wilkins (1884) that birthplace by itself was not sufficient to grant citizenship to a Native American ; however, Congress eventually granted full citizenship to American Indians via the Indian Citizenship Act of 1924 . Restrictions on immigration and naturalization of Chinese were eventually lifted as a consequence of the Chinese Exclusion Repeal Act of 1943 (also known as
6517-460: The U.S. This case was also never brought before the Supreme Court. The Supreme Court's 1873 Slaughterhouse Cases decision contained the statement that "The phrase, 'subject to its jurisdiction,' was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign states born within the United States." However, since the Slaughterhouse Cases did not deal with claims of birthright citizenship, this comment
6650-418: The U.S. themselves". In a lecture to a group of law students shortly before the decision was released, Harlan commented that the Chinese had long been excluded from American society "upon the idea that this is a race utterly foreign to us and never will assimilate with us." Without the exclusion legislation, Harlan stated his opinion that vast numbers of Chinese "would have rooted out the American population" in
6783-445: The UK in 1981 and by Ireland in 1988. In later years, the inheritance rights of many illegitimate children have improved, and changes of laws have allowed them to inherit properties. More recently, the laws of England have been changed to allow illegitimate children to inherit entailed property, over their legitimate brothers and sisters. Despite the decreasing legal relevance of illegitimacy, an important exception may be found in
SECTION 50
#17327722715416916-514: The Union." Concluding that the Look Tin Sing decision constituted a controlling precedent in the Ninth Circuit, Judge Morrow ruled that subject to the jurisdiction thereof referred to being subject to U.S. law (the first of the two proposed interpretations). On January 3, 1896, the judge declared Wong Kim Ark to be a citizen because he was born in the U.S. The U.S. government appealed
7049-496: The United States The following landmark court decisions in the United States contains landmark court decisions which changed the interpretation of existing law in the United States . Such a decision may settle the law in more than one way: In the United States, landmark court decisions come most frequently from the Supreme Court . United States courts of appeals may also make such decisions, particularly if
7182-527: The United States and not subject to any foreign power, excluding Indians not taxed". Concerns were raised that the citizenship guarantee in the Civil Rights Act might be repealed by a later Congress or struck down as unconstitutional by the courts. Soon after the passage of the Act, Congress drafted the Fourteenth Amendment to the Constitution and sent it to the states for ratification (a process which
7315-447: The United States from England, that would encompass essentially everyone born in the U.S. via the principle of jus soli (citizenship based on place of birth). The U.S. government claimed that subject to the jurisdiction thereof meant "to be subject to the political jurisdiction of the United States"—an interpretation, based on international law , which would exclude parents and their children who owed allegiance to another country via
7448-403: The United States has not been lost or taken away by anything happening since his birth." The opinion of the Court was written by Associate Justice Horace Gray and was joined by Associate Justices David J. Brewer , Henry B. Brown , George Shiras Jr. , Edward Douglass White , and Rufus W. Peckham . Upholding the concept of jus soli (citizenship based on place of birth), the Court held that
7581-417: The United States to Chinese parents, or vice versa. Regarding naturalization (acquisition of citizenship other than at birth), the treaty contained a provision stating that "nothing herein contained shall be held to confer naturalization ... upon the subjects of China in the United States." Chinese immigrants to the United States were met with considerable distrust, resentment, and discrimination almost from
7714-427: The United States under the terms of the law. After the adoption of the Fourteenth Amendment in 1868 and prior to the Wong Kim Ark case, the question of jus soli citizenship for children of aliens arose only with reference to American Indians and Chinese. The Supreme Court ruled in an 1884 case ( Elk v. Wilkins ) that an Indian born on a reservation did not acquire United States citizenship at birth (because he
7847-408: The United States unless the fourteenth amendment overrides both treaty and statute." Pointing to the language of the Civil Rights Act of 1866 , an act of Congress which declared to be citizens "all persons born in the United States and not subject to any foreign power, excluding Indians not taxed", and which was enacted into law only two months before the Fourteenth Amendment was proposed by Congress,
7980-557: The United States who is "subject to the jurisdiction thereof" acquires automatic citizenship. The Supreme Court's majority concluded that this phrase referred to being required to obey U.S. law; on this basis, they interpreted the language of the Fourteenth Amendment in a way that granted U.S. citizenship to children born of foreigners (a concept known as jus soli ), with only a limited set of exceptions mostly based in English common law . The court's dissenters argued that being subject to
8113-418: The United States, as domiciled residents therein, the said mother and father of said Wong Kim Ark were engaged in the prosecution of business, and were never engaged in any diplomatic or official capacity under the Emperor of China". Quoting approvingly from an 1812 case, The Schooner Exchange v. M'Faddon , in which Chief Justice John Marshall said, "The jurisdiction of the nation within its own territory
SECTION 60
#17327722715418246-541: The United States, the dominant legal principle governing citizenship has been jus soli —the principle that birth within the territorial limits of the United States confers automatic citizenship, excluding slaves before the American Civil War . Although there was no actual definition of citizenship in United States law until after the Civil War, it was generally accepted that anyone born in the United States
8379-517: The United States. (The original Chinese Exclusion Act was amended several times—such as by the 1888 Scott Act and the 1892 Geary Act —and as a result, it is sometimes referred to in the plural as the "Chinese Exclusion Acts".) Chinese already in the U.S. were allowed to stay, but they were ineligible for naturalization and, if they left the U.S. and later wished to return, they needed to apply anew and obtain approval again. Chinese laborers and miners were specifically barred from coming (or returning) to
8512-492: The appropriate jurisdiction. Many other countries have legislatively abolished any legal disabilities of a child born out of wedlock. In France , legal reforms regarding illegitimacy began in the 1970s, but it was only in the 21st century that the principle of equality was fully upheld (through Act no. 2002-305 of 4 March 2002, removing mention of "illegitimacy" — filiation légitime and filiation naturelle ; and through law no. 2009-61 of 16 January 2009). In 2001, France
8645-466: The born during the matrimony, out of matrimony and of the adopted children" as one of the principles of family law. The European Convention on the Legal Status of Children Born out of Wedlock came into force in 1978. Countries which ratify it must ensure that children born outside marriage are provided with legal rights as stipulated in the text of this convention. The convention was ratified by
8778-642: The boy was his son. Wong's other three sons came to the United States between 1924 and 1926 and were accepted as citizens. Because of his citizenship, Wong Kim Ark's youngest son was drafted in World War II, and later made a career in the United States Merchant Marine . Current U.S. law on birthright citizenship (citizenship acquired at birth) acknowledges both citizenship through place of birth ( jus soli ) and citizenship inherited from parents ( jus sanguinis ). Before Wong Kim Ark,
8911-434: The children. In criticizing the priests who refused to baptize out-of-wedlock children, Pope Francis argued that the mothers had done the right thing by giving life to the child and should not be shunned by the church: In our ecclesiastical region there are priests who don't baptise the children of single mothers because they weren't conceived in the sanctity of marriage. These are today's hypocrites. Those who clericalise
9044-422: The church. Those who separate the people of God from salvation. And this poor girl who, rather than returning the child to sender, had the courage to carry it into the world, must wander from parish to parish so that it's baptised! The proportion of children born outside marriage has been rising since the turn of the 21st century in most European Union countries, North America, and Australia. In Europe, besides
9177-526: The citizenship provision would not be sufficiently narrow to exclude American Indians from citizenship, and in an attempt to address this issue, he proposed to add a phrase taken from the Civil Rights Act—"excluding Indians not taxed". Although most Senators agreed that birthright citizenship should not be extended to the Indians, a majority saw no need to clarify the issue, and Doolittle's proposal
9310-526: The country to a citizen parent), a right confirmed by Congress in the Naturalization Act of 1790 . Additionally, alien immigrants to the United States could acquire citizenship via a process of naturalization —though access to naturalization was originally limited to "free white person[s]". African slaves were originally excluded from United States citizenship. In 1857, the United States Supreme Court held in Dred Scott v. Sandford that slaves, former slaves, and their descendants were not eligible under
9443-587: The country, whether of royal parentage or not, or whether of the Mongolian, Malay or other race, were eligible to the presidency, while children of our citizens, born abroad, were not." The dissenters acknowledged that other children of foreigners—including former slaves—had, over the years, acquired U.S. citizenship through birth on U.S. soil. But they still saw a difference between those people and U.S.-born individuals of Chinese ancestry, because of strong cultural traditions discouraging Chinese immigrants from assimilating into mainstream American society, Chinese laws of
9576-476: The date of the conception. The Legitimation (Scotland) Act 1968 extended legitimation by the subsequent marriage of the parents to children conceived when their parents were not free to marry, but this was repealed in 2006 by the amendment of section 1 of the Law Reform (Parent and Child) (Scotland) Act 1986 (as amended in 2006) which abolished the status of illegitimacy stating that "(1) No person whose status
9709-405: The difficulty of determining paternity with certainty . By the final third of the 20th century, in the United States , all the states had adopted uniform laws that codified the responsibility of both parents to provide support and care for a child, regardless of the parents ' marital status , and gave non-marital as well as adopted persons equal rights to inherit their parents' property. In
9842-465: The dissenters argued that "it is not open to reasonable doubt that the words 'subject to the jurisdiction thereof,' in the amendment, were used as synonymous with the words 'and not subject to any foreign power ' ". In the dissenters' view, excessive reliance on jus soli (birthplace) as the principal determiner of citizenship would lead to an untenable state of affairs in which "the children of foreigners, happening to be born to them while passing through
9975-530: The dissenting view. An editorial published in the San Francisco Chronicle on March 30, 1898, expressed concern that the Wong Kim Ark ruling (issued two days previously) "may have a wider effect upon the question of citizenship than the public supposes"—specifically, that it might lead to citizenship and voting rights not only for Chinese but also Japanese and American Indians. The editorial suggested that "it may become necessary ... to amend
10108-401: The district court ruling directly to the United States Supreme Court. According to Salyer, government officials—realizing that the decision in this case "was of great importance, not just to Chinese Americans, but to all American citizens who had been born to alien parents", and concerned about the possible effect of an early ruling by the Supreme Court on the 1896 presidential election —delayed
10241-473: The district judge concluded that the language in question was obiter dictum and not directly relevant to the case at hand. The government also cited a similar statement in Elk v. Wilkins , but the judge was not convinced by this argument either. Wong's attorneys cited the Look Tin Sing case, and the district judge agreed that in the absence of clear direction from the Supreme Court, this case definitively settled
10374-483: The father being fertile, there was a presumption of paternity that a married woman's child was her husband's child. That presumption could be questioned, though courts generally sided with the presumption, thus expanding the range of the presumption to a "Seven Seas Rule". But it was only with the Marriage Act 1753 that a formal and public marriage ceremony at civil law was required, whereas previously marriage had
10507-637: The framers". Like many other immigrants, Chinese were drawn to the United States—initially to participate in the California Gold Rush of 1849, then moving on to railroad construction, farming, and work in cities. An 1868 treaty (named the Burlingame Treaty after one of the American negotiators) expanded trade and migration between the United States and China. The treaty did not address the citizenship of children born in
10640-483: The government's refusal to recognize his citizenship, and the Supreme Court ruled in his favor, holding that the citizenship language in the Fourteenth Amendment encompassed the circumstances of his birth and could not be limited in its effect by an act of Congress . The case highlighted disagreements over the precise meaning of one phrase in the Citizenship Clause—namely, the provision that a person born in
10773-399: The immigration status of their parents." In Epps' opinion, the sponsors of the Fourteenth Amendment "were unwavering in their insistence that the Citizenship Clause was to cover" the children of such "undesirable immigrants" as Chinese and Gypsies, and he views the Wong Kim Ark ruling as an "unexceptionable" matter of reading the drafters' intent. List of landmark court decisions in
10906-636: The increase in nonmarital births from the late 20th century on has been linked to secularization, enhanced women's rights and standing in society, and the fall of authoritarian dictatorships. Before the dissolution of Marxist–Leninist regimes in Europe, women's participation in the workforce was actively encouraged by most governments, but socially conservative regimes such as that of Nicolae Ceausescu practiced restrictive and natalist policies regarding family reproduction, such as total bans on contraception and abortion, and birth rates were tightly controlled by
11039-545: The joint resolution from the House of Representatives which had framed the initial draft of the proposed Fourteenth Amendment. The heated debate on the proposed new language in the Senate focused on whether Howard's proposed language would apply more broadly than the wording of the 1866 Civil Rights Act. Howard said that the clause "is simply declaratory of what I regard as the law of the land already, that every person born within
11172-425: The jurisdiction of the United States meant not being subject to any foreign power—that is, not being claimed as a citizen by another country via jus sanguinis (inheriting citizenship from a parent)—an interpretation which, in the minority's view, would have excluded "the children of foreigners, happening to be born to them while passing through the country". In the words of a 2007 legal analysis of events following
11305-738: The limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States." He added that citizenship "will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons"—a comment which would later raise questions as to whether Congress had originally intended that U.S.-born children of foreign parents were to be included as citizens. Responding to concerns expressed by Edgar Cowan of Pennsylvania that liberalizing
11438-584: The low levels of fertility rates and the delay of motherhood, another factor that now characterizes fertility is the growing percentage of births outside marriage. In the EU , this phenomenon has been on the rise in recent years in almost every country; and in eight EU countries, mostly in northern Europe, as well as in Iceland outside of the EU, it already accounts for the majority of births. In 2009, 41% of children born in
11571-423: The media, but research by sociologist Michael Gilding traced these overestimates back to an informal remark at a 1972 conference. The detection of unsuspected illegitimacy can occur in the context of medical genetic screening, in genetic family name research, and in immigration testing. Such studies show that covert illegitimacy is in fact less than 10% among the sampled African populations, less than 5% among
11704-652: The metropolis is the high number of immigrants from conservative world regions. In Canada, in Quebec , the majority of births since 1995 onwards have been outside marriage. As of 2015, 63% of births were outside marriage in Quebec. Traditionally conservative Catholic countries in the EU now also have substantial proportions of non-marital births, as of 2016 (except where otherwise stated): Portugal (52.8% ), Spain (45.9%), Austria (41.7% ), Luxembourg (40.7% ) Slovakia (40.2% ), Ireland (36.5%), Malta (31.8% ) The percentage of first-born children born out of wedlock
11837-511: The most injurious and unfortunate decisions" ever handed down by the Supreme Court and hoped the new case would give the court "an opportunity to correct itself". A federal district court and the Ninth Circuit Court of Appeals summarily rejected this contention, each citing Wong Kim Ark as a controlling precedent , and the Supreme Court declined to hear the case. Federal appellate courts have repeatedly rejected attempts to cite
11970-408: The notions of reproductive and sexual rights, individuals—not the state, church, community, etc.—shall decide whether and when individuals shall have children, their number and spacing, the circumstances under which individuals will or will not be sexually active, and their choice of intimate partners and type of relationship. It is argued that in some places where the control of the church (especially
12103-612: The parents incorrectly believed were valid. Neither the 1926 nor 1959 Acts changed the laws of succession to the British throne and succession to peerage and baronetcy titles. In Scotland children legitimated by the subsequent marriage of their parents have always been entitled to succeed to peerages and baronetcies and the Legitimation (Scotland) Act 1968 extended this right to children conceived when their parents were not free to marry. The Family Law Reform Act 1969 (c. 46) allowed
12236-419: The phrase subject to the jurisdiction thereof in the Citizenship Clause should govern a situation involving a child born in the United States to alien parents. Wong's attorneys argued that the phrase meant " 'subject to the laws of the United States,' comprehending, in this expression, the allegiance that aliens owe in a foreign country to obey its laws"—an interpretation, based on the common law inherited by
12369-463: The policy was changed so that children born after 1 July 2006 could receive British citizenship from their father if their parents were unmarried at the time of the child's birth; illegitimate children born before this date cannot receive British citizenship through their father. Legitimacy also continues to be relevant to hereditary titles, with only legitimate children being admitted to the line of succession . Some monarchs, however, have succeeded to
12502-732: The population - see religion in Europe ) correlates with the proportion of non-marital births (e.g., Greece, Cyprus, Croatia have a low percentage of births outside marriage), but this is not always the case: Portugal (56% in 2018 ) is among the most religious countries in Europe. The proportion of non-marital births is also approaching half in the Czech Republic (48.5%. in 2021 ), the United Kingdom (48.2% as of 2017 ) and Hungary (46.7% as of 2016 ). The prevalence of births to unmarried women varies not only between different countries, but also between different geographical areas of
12635-535: The population to rebel against traditional and conservative social values; since 1995 the majority of births in this province are outside marriage, and as of 2015, in Quebec, 63% of children were born to unmarried women. The past few decades have seen decreased marriage rates in most Western countries, and this decrease has been accompanied by increased emergence of non-traditional family forms. Average marriage rates across OECD countries have fallen from 8.1 marriages per 1,000 people in 1970 to 5.0 in 2009. Research on
12768-500: The primary rule determining United States citizenship has been cited in several Supreme Court decisions affirming the citizenship of U.S.-born individuals of Chinese or Japanese ancestry. The court's holding that the language of the Constitution should be understood in light of the common law has been cited in numerous Supreme Court decisions dealing with the interpretation of the Constitution or acts of Congress. The Wong Kim Ark court's understanding of Fourteenth Amendment jurisdiction
12901-399: The principle of jus sanguinis (citizenship inherited from a parent). The question of the citizenship status of U.S.-born children of alien parents had, up to this time, never been decided by the Supreme Court. The U.S. government argued that Wong's claim to U.S. citizenship was ruled out by the Supreme Court's interpretation of jurisdiction in its 1873 Slaughterhouse Cases ruling, but
13034-531: The question of citizenship for Wong and others like him as far as federal courts in the Ninth Circuit were concerned. The judge saw the Look Tin Sing holding reaffirmed in the Gee Fook Sing case and noted further that another part of the Supreme Court's Slaughterhouse Cases opinion said that "it is only necessary that [a man] should be born or naturalized in the United States to be a citizen of
13167-862: The rate in Japan was 1.4%; in Israel , 3.1%; in China , 5.6%; in Uzbekistan , 6.4%; in Kazakhstan , 21%; and in Kyrgyzstan , 24%. However, in the Philippines , the out-of-wedlock birth rate was 37% in 2008–2009, which skyrocketed to 52.1% by 2015. Covert illegitimacy is a situation which arises when someone who is presumed to be a child's father (or mother) is in fact not the biological father (or mother). Frequencies as high as 30% are sometimes assumed in
13300-507: The rejection of the contrary British doctrine of perpetual allegiance . The dissenters argued that the principle of jus sanguinis (that is, the concept of a child inheriting his or her father's citizenship by descent regardless of birthplace) had been more pervasive in U.S. legal history since independence. Based on an assessment of U.S. and Chinese treaty and naturalization law, the dissenters claimed that "the children of Chinese born in this country do not, ipso facto , become citizens of
13433-528: The right to citizenship might result in certain states being taken over by large populations of undesirable foreign immigrants, John Conness of California predicted that the Chinese population in California would likely remain very small, in large part because Chinese immigrants almost always eventually returned to China, and also because very few Chinese women left their homeland to come to the United States. James R. Doolittle of Wisconsin objected that
13566-821: The same country: for example, in Germany, there are very strong differences between the regions of former West Germany and East Germany with a non-religious majority. Significantly more children are born out of wedlock in eastern Germany than in western Germany. In 2012, in eastern Germany 61.6% of births were to unmarried women, while in western Germany only 28.4% were. In the UK, in 2014, 59.4% of births were non-marital in North East of England , 58.9% in Wales , 54.2% in North West England , 52.4% in Yorkshire and
13699-496: The sampled Native American and Polynesian populations, less than 2% of the sampled Middle Eastern population, and generally 1%–2% among European samples. The rise in illegitimacy noted in Britain throughout the eighteenth century has been associated with the rise of new employment opportunities for women, making them less dependent upon a husband's earnings. However, the Marriage Act 1753 sought to curb this practice, by combining
13832-534: The situation in Bulgaria has concluded that: [The rise in unmarried cohabitation] shows that for many people it is not of great importance [whether] their union is a legal marriage or [a] consensual union. This [indicates] clear changes in [people's] value orientations [...] and less social pressure for marriage. Certainty of paternity has been considered important in a wide range of eras and cultures, especially when inheritance and citizenship were at stake, making
13965-539: The spousals and nuptials; and by the start of the 19th century, social convention prescribed that brides be virgins at marriage, and illegitimacy became more socially discouraged, especially during the Victorian era . Later in the 20th century, the social changes of the 1960s and 1970s started to reverse this trend, with an increase in cohabitation and alternative family formation. Elsewhere in Europe and Latin America,
14098-506: The state. After the dissolution of those regimes, the population was given more choices on how to organize their personal lives, and in regions such as former East Germany, the rate of births outside marriage increased dramatically: as of 2012, 61.6% of births there were outside marriage. Far-right regimes such as those of Francoist Spain and Portugal's Estado Novo also fell, leading to the democratization and liberalization of society. In Spain and Portugal, important legal changes throughout
14231-457: The status of legitimacy of children born to the couple during their putative marriage , i.e. , between their marriage ceremony and the legal annulment of their marriage. For example, canon 1137 of the Roman Catholic Church 's Code of Canon Law specifically affirms the legitimacy of a child born to a marriage that is declared null following the child's birth. The Catholic Church is also changing its attitude toward unwed mothers and baptism of
14364-418: The term jurisdiction , or by overriding both the Wong Kim Ark ruling and the Citizenship Clause itself through an amendment to the Constitution , but no such proposal has been enacted. United States citizenship law is founded on two traditional principles— jus soli ("right of the soil"; a " common law " doctrine), and jus sanguinis ("right of the blood"; a " civil law " doctrine). Under jus soli ,
14497-479: The throne despite the controversial status of their legitimacy. For example, Elizabeth I succeeded to the throne though she was legally held illegitimate as a result of her parents' marriage having been annulled after her birth. Her older half-sister Mary I had acceded to the throne before her in a similar circumstance: her parents' marriage had been annulled in order to allow her father to marry Elizabeth's mother . Annulment of marriage does not currently change
14630-422: The time of their first arrival. Many politicians argued that the Chinese were so different in so many ways that they not only would never (or even could) assimilate into American culture, but that they represented a threat to the country's principles and institutions. In this climate of popular anti-Chinese sentiment, Congress in 1882 enacted the Chinese Exclusion Act , which placed limits on Chinese immigration to
14763-523: The time which made renouncing allegiance to the Chinese emperor a capital crime , and the provisions of the Chinese Exclusion Act making Chinese immigrants already in the United States ineligible for citizenship. The question for the dissenters was "not whether [Wong Kim Ark] was born in the U.S. or subject to the jurisdiction thereof ... but whether his or her parents have the ability, under U.S. or foreign law, statutory or treaty-based, to become citizens of
14896-441: The timing of their appeal so as to avoid the possibility of a decision based more on policy concerns than the merits of the case. Oral arguments before the Supreme Court were held on March 5, 1897. Solicitor General Holmes Conrad presented the government's case; Wong was represented before the Court by Maxwell Evarts , former U.S. Assistant Attorney General J. Hubley Ashton, and Thomas D. Riordan. The Supreme Court considered
15029-409: The tracking of a man's estate and genealogy a central part of what defined a "legitimate" birth. The ancient Latin dictum, " Mater semper certa est " ("The [identity of the] mother is always certain", while the father is not), emphasized the dilemma. In English common law , Justice Edward Coke in 1626 promulgated the "Four Seas Rule" ( extra quatuor maria ) asserting that, absent impossibility of
15162-521: The weakening of social and legal norms that regulate peoples' personal lives and relations, especially in regard to marriage, secularization and decreased church control of reproduction, increased participation of women in the labor force , changes in the meaning of marriage, risk reduction, individualism, changing views on female sexuality , and availability of contraception . New concepts have emerged, such as that of reproductive rights , though these concepts have not been accepted by all cultures. Under
15295-427: The western United States. Acknowledging the opposing view supporting citizenship for American-born Chinese, he said that "Of course, the argument on the other side is that the very words of the constitution embrace such a case." Commenting on the Wong Kim Ark case shortly after the issuance of the Court's ruling in 1898, San Francisco attorney Marshall B. Woodworth wrote that "the error the dissent apparently falls into
15428-521: Was a native-born citizen of the United States, but only after an unnamed Bureau of Immigration official left a note in his file questioning the veracity of his claim of birth in the United States. In November 1894, Wong sailed to China for another temporary visit, to rejoin his wife at his family's village in Taishan, Guangdong . He met his oldest son for the first time, and his second son was conceived. But when he returned in August 1895 by SS Coptic , he
15561-625: Was able to convince U.S. Attorney Henry Foote, who "searched for a viable test case and settled on Wong Kim Ark". With the assistance of legal representation by the Chinese Consolidated Benevolent Association , Wong Kim Ark challenged the refusal to recognize his birth claim to U.S. citizenship, and a petition for a writ of habeas corpus was filed on his behalf in federal district court . The arguments presented before District Judge William W. Morrow centered on which of two competing interpretations of
15694-533: Was also 42% in 2018. In 2018, births outside of marriage represented the majority of births in eight EU member states: France (60%), Bulgaria (59%), Slovenia (58%), Portugal (56%), Sweden (55%), Denmark and Estonia (both 54%), and the Netherlands (52%). The lowest percentage were in Greece, Cyprus, Croatia, Poland and Lithuania, with a percentage of under 30%. To a certain degree, religion (the religiosity of
15827-530: Was also cited in a 1982 case involving the rights of illegal immigrants. An unsuccessful effort was made in 1942 by the Native Sons of the Golden West to convince the Supreme Court to revisit and overrule the Wong Kim Ark ruling, in a case ( Regan v. King ) challenging the citizenship status of roughly 2,600 U.S.-born persons of Japanese ancestry. The plaintiffs' attorney termed Wong Kim Ark "one of
15960-474: Was automatically a citizen. This applicability of jus soli , via the common law inherited in the United States from England, was upheld in an 1844 New York state case, Lynch v. Clarke , in which it was held that a woman born in New York City , of alien parents temporarily sojourning there, was a U.S. citizen. United States citizenship could also be acquired at birth via jus sanguinis (birth outside
16093-529: Was born in Mendocino, California in 1870 to Chinese immigrants. In 1879, his merchant father sent him to China; but upon returning from China in 1884 at age 14, he was barred from reentering the United States by officials who objected to his not having met the documentation requirements imposed at the time on Chinese immigrants under the Restriction Acts of 1882 or of 1884. Look's case was heard in
16226-517: Was completed in 1868). Among the Fourteenth Amendment's many provisions was the Citizenship Clause , which entrenched a guarantee of citizenship in the Constitution by stating, "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." The Citizenship Clause was proposed by Senator Jacob M. Howard of Michigan on May 30, 1866, as an amendment to
16359-514: Was detained at the Port of San Francisco by the Collector of Customs , who denied him permission to enter the country, arguing that Wong was not a U.S. citizen despite his having been born in the U.S., but was instead a Chinese subject because his parents were Chinese. Wong was confined for five months on steamships off the coast of San Francisco while his case was being tried. According to Salyer,
16492-674: Was dismissed in Wong Kim Ark and later cases as a passing remark ( obiter dictum ) lacking any force as a controlling precedent . As to whether the Wong Kim Ark decision was correct on this point or not, modern scholars are divided. Wong Kim Ark ( Chinese : 黃金德 ; Taishanese : Wōng Gim-ak), was born in San Francisco , California , at 751 Sacramento Street, the address of a Chinatown business (Quong Sing) maintained by his merchant parents. Various sources state or imply his year of birth as being 1873, 1871, or 1868. His father, Wong Si Ping, and mother, Lee Wee, emigrated from Taishan, Guangdong , China and were not United States citizens, as
16625-482: Was forced by the European Court of Human Rights to change several laws that were deemed discriminatory, and in 2013 the Court ruled that these changes must also be applied to children born before 2001. In some countries, the family law itself explicitly states that there must be equality between the children born outside and inside marriage: in Bulgaria, for example, the new 2009 Family Code lists "equality of
16758-575: Was fundamentally flawed in the way it dealt with the concept of jurisdiction, and that the Indian Citizenship Act of 1924 —which followed Wong Kim Ark —would not have been necessary if Congress had believed "that the Citizenship Clause confers citizenship merely by accident of birth." A similar analysis of the jurisdiction question has been proposed by Professor Peter H. Schuck of the Yale School of Law and Rogers M. Smith , political science professor at Yale. According to law professor Lino Graglia of
16891-420: Was joined by Associate Justice John Harlan in a dissent which, "for the most part, may be said to be predicated upon the recognition of the international law doctrine". The dissenters argued that the history of U.S. citizenship law had broken with English common law tradition after independence —citing as an example the embracing in the U.S. of the right of expatriation (giving up of one's native citizenship) and
17024-463: Was not subject to U.S. jurisdiction) and could not claim citizenship later on merely by moving to non-reservation U.S. territory and renouncing his former tribal allegiance. American Indians were subsequently granted citizenship by an act of Congress in 1924. The question of whether the Citizenship Clause applied to persons born in the United States to Chinese immigrants first came before the courts in an 1884 case, In re Look Tin Sing . Look Tin Sing
17157-517: Was one exception: when his father subsequently married his mother, and an older illegitimate son (a "bastard eignè") took possession of his father's lands after his death, he would pass the land on to his own heirs on his death, as if his possession of the land had been retroactively converted into true ownership. A younger non-bastard brother (a "mulier puisnè") would have no claim to the land. There were many "natural children" of Scotland 's monarchy granted positions which founded prominent families. In
17290-426: Was ordered that bastards should be supported by their putative fathers, though bastardy orders in the quarter sessions date from before this date. If the genitor could be found, then he was put under very great pressure to accept responsibility and to maintain the child." Under English law , a bastard could not inherit real property and could not be legitimized by the subsequent marriage of father to mother. There
17423-451: Was reached by the federal circuit court for Oregon in the 1888 cases of Ex parte Chin King and Ex parte Chan San Hee . In an 1892 case, Gee Fook Sing v. U.S. , a federal appeals court in California for the same circuit (by this time known as the Ninth Circuit Court of Appeals ) concluded that a Chinese man would have been recognized as a United States citizen if he could have presented satisfactory evidence that he had in fact been born in
17556-744: Was the highest in the Northern Territory (59%) and the lowest in the ACT (28%). Latin America has the highest rates of non-marital childbearing in the world (55–74% of all children in this region are born to unmarried parents). In most countries in this traditionally Catholic region, children born outside marriage are now the norm. Recent figures from Latin America show non-marital births to be 74% in Colombia , 70% in Paraguay , 69% in Peru , 63% in
17689-636: Was voted down. Upon its return to the House of Representatives , the proposed Fourteenth Amendment received little debate; no one spoke in opposition to the Senate's addition of the Citizenship Clause, and the complete proposed amendment was approved by the House on June 13, 1866, and declared to have been ratified on July 28, 1868. In 2006, Goodwin Liu , then an assistant professor at the Boalt Hall law school of
#540459