Who gets to be an American citizen?

I'm Run.detect that.

“Each week, we bring you stories about life, liberty, and the pursuit of happiness in the”

U.S. that began 250 years ago. As we've been talking about in this series, who is American and what it means to be American,

have always been in flux.

And today, that's still true. Just a month, the Supreme Court started hearing oral arguments that those born in the United States are automatically U.S. citizens, regardless of their parents' immigration status. The court will issue a decision this summer, and either undo birthright citizenship or uphold the precedent set over a century ago by another Supreme Court case.

The case that started it all. The question to be determined is whether a person born within the United States, whose father and mother were both persons of Chinese descent and subjects of the Emperor of China.

“But at the time of the birth, we're both domicile residents of the United States.”

He's a citizen. Today, robting and I bring you the story of Wang Kim Mark, the man behind the Supreme Court case that made birthright citizenship the law of the land. Until now, that story right after a quick break. It all began when Wang Kim Mark, a San Francisco born cook, tried to return to California

after visiting China, his parents' home land. Think when he saw San Francisco Bay emerge out of what was likely the foggy morning. This is a man of frost, professor of immigration law and author of "You are not American." Citizenship stripping from Dret's got to the dreamers.

He must have been thrilled to think, "I'm finally back home and I can get off this boat

and go back to my home in San Francisco." And that's not what would happen. To Wang Kim Mark's surprise, a U.S. customs agent declared that he was not allowed to get off the ship and set foot onto U.S. soil. At this point, the Chinese exclusion act was in effect. And so if you were a Chinese laborer, you were not allowed to enter.

Wang Kim Mark argued with the customs official. He said, "Yes, I'm a laborer, I'm a chef, but I'm a citizen, and here's the proof. He had a certificate. He knew that he was born in the United States and that meant it was a U.S. citizen." Wang Kim Mark was born in the U.S., but his parents were not.

They came to the United States like many other Chinese immigrants, looking for work.

They opened what was basically a grocery store in San Francisco.

And at some point in the early 1870s, the records aren't totally clear. They welcomed a new baby into the world. Wang Kim Mark. All the time he was in the United States, he lived within about a quarter mile of the place where he was born.

At first, Chinese immigrants were welcome. They were helping to build America.

“They were building the Transcontinental Railroad and they were key.”

They were extraordinarily important. And they helped to mine the gold and the precious metals in back breaking difficult work throughout the West. But then, as so often we see in this nation, there was an economic downturn. And they were scapegoated and blamed for the lack of jobs in the poor economy.

This country was coming out of the Civil War, the end of slavery. And the white workers were told the Chinese are the new slaves. And they will undermine your work because they will take jobs at lower pay. They're willing to work in slave-like conditions. And they use that as an excuse for violence.

And they're attempt to drive out Chinese immigrants from the United States. 1877, a group of angry men driven by the idea that Chinese immigrants were taking their jobs. Set buildings on fire and killed four men in Chinatown in San Francisco. Anti-Chinese violence had landed on the doorstep of Wang Kim Mark's family. Eventually, his family packed up their store and moved back to China.

When Wang Kim Mark's family left the United States after the 1877 anti-Chinese riots in San Francisco, they never came back. But he did, at age 11. And during that time, Wang Kim Mark saw anti-Chinese sentiment cemented into law.

And then they passed the Pay Jacked, which barred all Chinese women, except merchants' wives.

And the Geary Act that required all Chinese immigrants to carry identification paperwork. So there was this sense that the Chinese wouldn't assimilate, but of course it was the laws and policies and practices of the nation that made it so difficult for them to assimilate. But that also made it easy to view them as others, as people who were not like us. In the face of all this xenophobia, Wang Kim Mark continued to live in San Francisco. He lived in the United States until until he was about 20.

When he went back to China, because he wanted to find a wife. He wanted to get married. And because of the Pay Jacked, that meant going back to China.

So he did. He got married and started a family, but he didn't stay long.

After several months, he returned to the United States to work, and he repeated this process again a couple of years later. Going back to China to visit his wife and his growing family.

“And that's what brings us back to that fateful day in the San Francisco Bay.”

Unbeknownst to Wang, while he was in China, the U.S. government had decided it wanted to bring a test case. Challenging birthright citizenship, birthright citizenship, particularly for the children of Chinese immigrants. So they chose him, and they didn't let him get off that boat. And his case made its way from a California district court all the way up to the Supreme Court. The entire case rests on the interpretation of a single sentence in the 14th Amendment of the Constitution.

An amendment added after the Civil War to guarantee newly emancipated black Americans equal citizenship and protection under U.S. laws. 14th Amendment, Section 1. 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.

And of the state, wherein they reside.

“That phrase, jurisdiction thereof, it is key.”

Because the court had to decide what makes a person a U.S. citizen. Do all people born on U.S. soil fall under its jurisdiction. It's laws or is jurisdiction about where your loyalties lie. On March 5th, 1897, on a Friday afternoon, the day came. The case of United States for swanky mark began.

They're in the capital building because there was no Supreme Court building at this time. And they were in front of these nine black-robed men with Chief Justice Fuller in the middle, who was very short to sitting on an elevated chair. Chief Justice Melville Weston Fuller was the leader of the nine justices that made up the Supreme Court. Unless you say they had a bit of a reputation. The Fuller Court is known among constitutional scholars as one of the most racist iterations of the Supreme Court that has existed across the span of American history.

They're responsible for a blessing versus Ferguson. And many members of the court were on record as being hostile to Chinese immigrants. The lawyer for the U.S. government argued. Well, wonky mark sure he was born in the United States. We can't refute that. But we do not think he was subject to the jurisdiction of the United States because his parents were loyal to the Emperor of China.

And so was their son by sort of automatic transmission. And so that means the son cannot automatically acquire citizenship based on birth. But then he made a bigger bolder claim. That the 14th Amendment of the U.S. Constitution is itself unconstitutional. And as reason for that was he said the South was coerced into ratifying the 14th Amendment in 1868.

And therefore it was never validly a part of the Constitution.

And we can see in that argument of course that he's trying to litigate this of the war. He's trying to say the reconstruction amendment should not be law. We should turn back the clock. He's making this case in front of the Supreme Court over 30 years after the ink on the 14th Amendment had dried. And in fact, the lawyers for wonky mark call him on that and they say in their brief. This nation spills so much blood to fight for the end of slavery and to establish the 13th and 14th and 15th amendments and change our nation and change our constitution.

“And you should not accept the argument that these amendments are invalid.”

The government made its argument. Then it was wonky mark's lawyers chance to counter.

Julie Novkov is a co-author of American by birth.

“Wonky mark in the battle for citizenship.”

One is that this principle of birthright citizenship is a long-standing principle in common law. Not just American common law, but English common law.

Their second claim is that this common law principle was adopted in the 14th Amendment.

And therefore, if you look at the history of this principle, if you look at how it has played out over time, there's plenty of grounding there to support the idea that the descendants of Chinese born in the United States are entitled to birthright citizenship. They were brilliant lawyers, and they told the Supreme Court if you rule for the government that the children of immigrants are not citizens. You will take away citizenship from hundreds of thousands, maybe millions of people, including lots of white people.

Millions of immigrants from Europe and around the world had moved to the US in the 1800s. So the Supreme Court was suddenly having to address a fundamental issue. One that would have ripple effects beyond the children of Chinese immigrants, like Wang Kemark. It took over a year, but finally, the Supreme Court issued a ruling in the case of U.S. First Wang Kemark. The fact, therefore, that acts of Congress or treaties have not permitted Chinese persons born out of this country to become citizens by naturalization.

Cannot exclude Chinese persons born in this country from the operation of the broad and clear words of the Constitution. All persons born in the United States and subject to the jurisdiction thereof are citizens of the United States. Just as great. The court focused on the language that all persons, this is intended to apply to everyone, and it's not intended to be so restrictive as to take away citizenship or bar citizenship from the children of immigrants.

“And remember, United States is a nation of immigrants. It's not like there's just a few people who are born to non-citizen parents.”

It's a significant percentage of the country every year is born to immigrant parents. Quick note, all persons did not necessarily include Native Americans, and that's because tribes recognized by the U.S. government were considered sovereign nations with their own governments and court systems. And then the court threw it at the very end. They said, and if we were to rule any other way, we would take citizenship away from lots of children of not just the quote unquote obnoxious Chinese, which is how the court often refer to this group.

But also the children of English immigrants and German immigrants and French immigrants. That, I think, also pragmatically led them to, to say, no one can mark. We're ruling for you not so much because we're sympathetic to children of Chinese immigrants, but because we can't undo the citizenship of the children of immigrants in this country. Juan Kimmar couldn't undo anti-Chinese hate, but he did win his case. He was recognized by the U.S. government as a citizen. He could finally go back to his life in San Francisco, but life was far from easy.

He was actually arrested again in 1901 for being a suspected Chinese immigrant and spent months in detention before convincing officials that he was a U.S. citizen.

Juan Kimmar returned to China in his 60s and never came back.

“That's it for this week's episode of America and Persuade. If you want to hear more about Juan Kimmar's story, check out the episode, the history of birthright citizenship.”

And make sure to join us next week when we dive into how the U.S. begins to expand beyond the shores. It becomes harder to think of the United States as just contiguous collection of states because it's quite obvious that the U.S. flag is flying in all sorts of places. The story of the beginning of the U.S. empire and how we went from the United States to calling our country America. That's next week. Don't miss it. This episode was produced by Kiana Molodam and edited by Christina Kimm with help from the throughline production team.

Music is always by Romteen Adablui and his band Jopala Trick.

Special thanks to Julie King, Irene Gucci, Beth Donovan, Kacey Miner, and Lindsay McKenna.

And Romteen Adablui. Thank you for listening. Music is always by Romteen Adablui. Thank you.