In 1895, a 24-year-old man sailed into the San Francisco Bay, returning home after a trip abroad. He’d never been in trouble with the law, had done nothing to attract anyone’s attention — he’d worked as a lowly dishwasher and cook in the mining camps in California. He was just looking to go home and go back to work to earn some money.
What that young man didn’t know was that the president of the United States was looking for him, maybe not him specifically but someone like him, because the president intended to make an example out of him.
The president was Grover Cleveland, and the young man was Wong Kim Ark. The legal question that Wong found himself caught up in, as he was kept on board one ship after another floating in the harbor, was whether he was a United States citizen. The 1897 Supreme Court case that now bears his name produced a landmark ruling, one that more than a century later another president of the United States — Donald Trump — seeks to overturn. The issue here is birthright citizenship, the legal concept that if you’re born on American soil, you’re automatically an American citizen.
That California case from 128 years ago has obvious national implications today but also a very specific Virginia connection: The lawyer who argued the federal case for the Cleveland administration was a Virginian. Even more curiously, in making his case that Ark was not an American citizen, that Virginia lawyer took the extraordinary position that part of the U.S. Constitution was, itself, unconstitutional. Today we look at the story of Holmes Conrad of Winchester, but first we must deal with the story of Wong Kim Ark.
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If Wong had been white, customs officials wouldn’t have blocked him from getting off the S.S. Coptic. Wong wasn’t white, though, and that made all the difference. His travel documents attested that he was an American citizen — born in San Francisco, grew up there — but federal officials insisted that was impossible for one simple reason: U.S. law forbade people of Chinese heritage from becoming citizens.
Through the simple act of making a trip to visit family in China and then returning home, Wong had gotten caught up in a constitutional challenge. At issue: Just how broadly did the 14th Amendment apply? Or, as Holmes Conrad would later argue, did it apply at all?
Wong and Conrad stood at the convergence of two things that shaped the country in the 1800s: the Civil War and immigration. To understand that, we must go back to another pivotal figure who was born in Virginia: Dred Scott, born into slavery in Southampton County in 1795 and then taken out of state, eventually to the free states in the Midwest. When Scott sued for his freedom, on the grounds that he had been taken into states where slavery was forbidden, the U.S. Supreme Court eventually issued an even broader decision: that no Black Americans could become citizens.
That court decision came in 1857. Four years later came the Civil War. In the aftermath of the war, Congress had to decide the legal status of newly freed slaves. First it passed the Civil Rights Act of 1866, which granted citizenship not only to those formerly enslaved but also “all persons born in the United States and not subject to any foreign power, excluding Indians not taxed.” Concerned that the act might someday be repealed or found unconstitutional, Congress sought to fix that by passing the 14th Amendment, which was ratified in 1868. It declared: “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.” That is birthright citizenship.
Meanwhile, on the West Coast, something else was happening: an influx of Chinese immigrants. They began coming in small numbers during the California Gold Rush of the 1850s, but then their numbers accelerated after the Civil War with the construction of the Transcontinental Railroad. About 90% of the workers on the western portion of the railroad were Chinese, according to a study by Stanford University., although you won’t see them in the famous photo of “the golden spike” because railroad executives didn’t want them included. Racism took hold. There were anti-Chinese riots and, eventually, legislation. In 1882, Congress passed one of the earliest immigration laws ever. The Chinese Exclusion Act sought to ban Chinese immigration.
The issues then sound much like today: Some argued for Chinese immigration because immigrants helped generate tax revenue. President Benjamin Harrison complained about a porous border — in those days, the northern one with Canada, because Chinese immigrants would sail into Vancouver and then sneak across the border.
That’s the legal background against which Wong Kim Ark grew up. It also raised a question: He was born in San Francisco in 1870, which, under the 14th Amendment, would seem to make him an American citizen. However, the Chinese Exclusion Act said that Chinese immigrants already in the U.S. could not become American citizens. What about their children? Were they automatically citizens even though the point of the law was to ban people of Chinese heritage from becoming citizens? This seemed a big loophole to those who opposed Chinese immigration, which included President Cleveland.
According to University of Virginia law professor Amanda Frost, who has studied the case and is writing a book about birthright citizenship, the Cleveland administration set about finding a test case. It found Wong Kim Ark.
He’d traveled out of the country before and gotten back in without any problems. This time, he was essentially taken prisoner for a time as his legal case played out. Eventually, he paid a $250 bond, was released and started working as a chef in San Francisco while his case made its way to the U.S. Supreme Court. Arguing the case for the federal government — against Ark’s citizenship claim and against birthright citizenship — was one of the best lawyers of his day.
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Holmes Conrad was the son of a Virginia attorney general — a slaveholding family, Frost says — and followed his father into the law. His path was a classic one for prominent Virginia men of his generation: Virginia Military Institute, then law school at the University of Virginia, followed by service in the Confederate Army. Within a year of the war’s end, he was practicing law with his father in Winchester — and eventually entering politics. He was elected to the House of Delegates, as a Democrat, at a time when Democrats were the conservative party in Virginia — and represented a backlash against the relatively progressive racial policies of the short-lived Readjuster Party. This is what is known as foreshadowing. Frost says her research finds that Conrad was “an unrepentant, unreformed Confederate. He was the perfect example of the 1880s and 1890s,” when Southern Democrats rolled back as many Reconstruction-era reforms as they could and imposed Jim Crow laws.
According to his official biography with the U.S. Justice Department, Conrad did not much like elective politics: “By nature somewhat of an aristocrat and reserved in manner, he was never what some might call a ‘good mixer.’” He also had “an extreme distaste for routine office work.” However, he was apparently a terrific lawyer, particularly when dealing with constitutional issues at the appellate level.
Cleveland made him an assistant attorney general and, in time, solicitor general. It was in that capacity that Conrad argued the Wong case. By the time he did, Cleveland was out of office, and Conrad was a lame duck, continuing in office until the new president, William McKinley, could name his successor.
The arguments on behalf of Wong were straightforward: The 14th Amendment says that “all persons born” in the U.S. are citizens. Wong was born in the U.S. Therefore, he was a citizen.
Conrad presented several arguments. First, he pointed to the clause that the amendment spoke of people born in the U.S. “and subject to the jurisdiction thereof.” That had been assumed to mean the usual exclusion for diplomats; Conrad contended it could be a wider exclusion, that since Wong’s parents were Chinese citizens when Wong was born, both they and he were not subject to the jurisdiction of the U.S. Since Wong’s parents weren’t naturalized American citizens, and could never be naturalized American citizens, their son born in the U.S. could not be either.
Let’s let Frost tell what happened next, from an article she wrote for the American University law journal (from which many of these facts are drawn):
But Conrad did not limit himself to this textual argument. Halfway through his brief, he dropped a bombshell worthy of a former officer in the Confederate Army. The Fourteenth Amendment is of “doubtful validity” so “far as the ten Southern States were concerned,” he declared on behalf of the United States. The Southern States’ admission back into the Union after the Civil War was conditioned on their ratification of that Amendment — a process Conrad described as “coerc[ive]” and amounting to “a blot on our constitutional history.” In other words, the Solicitor General of the United States was defending a federal governmental policy against constitutional challenge on the ground that a provision of the Constitution was, well, unconstitutional. Conrad did not stop there. He took aim at the entire Reconstruction era, which he described as “that unhappy period of rabid rage and malevolent zeal when corrupt ignorance and debauched patriotism held high carnival in the halls of Congress.” Apparently, Solicitor General Conrad viewed Wong’s case as an opportunity not only to challenge the citizenship of a handful of children of Chinese immigrants, but also to shape the legacy of Reconstruction and the three constitutional amendments that era produced.
The counterargument, from Wong’s attorneys: If Conrad’s argument prevailed — that the 14th Amendment didn’t apply to the children of people who aren’t U.S. citizens — then potentially millions of U.S.-born children of immigrant parents who weren’t yet citizens wouldn’t be citizens, either.
The response to that: The government could fix that by setting up a streamlined system to make all those white children citizens. Chinese, though, need not apply.
Frost says the case clearly perplexed the Supreme Court because it took a year to decide it — an unusually long time in those days. It ruled 6-2 that the 14th Amendment really meant what it said about birthright citizenship and that Wong Kim Ark was, indeed, an American citizen.
The court’s long delay in the case prompted one justice to compose a poem that he circulated privately:
At last the end of Wong! We’ve studied, written long, And may be wholly wrong; Yet join the happy song, Goodby, goodby to Wong.
Given the anti-Chinese views at the time, Frost says “it’s sort of a miracle the court didn’t go with him but the ramifications that he was suggesting — that children of all these people would lose citizenship — was too much.”
There was also one other thing that worked in Wong’s favor and against Conrad’s: The framers of the 14th Amendment had made it clear they really did mean to include children of Chinese immigrants.
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The 14th Amendment was intended to make Black Americans, denied citizenship under the Dred Scott decision, into citizens. But was it intended to make other non-white people born on U.S. soil citizens?
Frost says the congressional debates that preceded the adoption of the 14th Amendment show the answer was clearly “yes.” In her American University article, she writes:
When Pennsylvania Senator Edgar Cowan asked, “Is the child of the Chinese immigrant in California a citizen?” the answer was a clear yes. “We are entirely ready to accept the provision proposed in this constitutional amendment,” declared California Senator John Conness, “that the children begotten of Chinese parents in California … shall be citizens.”
Given the clear intent of the framers, she remains astounded by Conrad’s arguments. “He was willing to make an argument that would have undone so many people’s citizenship and in a nation of millions of immigrants, he was willing to make that argument just for the racist goal of preventing Chinese immigration.”
Today, Trump wants to channel Cleveland and eliminate birthright citizenship. How can he do that when the 14th Amendment seems so clear?
The rest of the story
Holmes Conrad went on to argue other important cases, including one of particular interest to Virginia: a long-running dispute where Virginia was trying to get West Virginia to help pay some of its pre-Civil War debts. In 1911, Conrad persuaded the Supreme Court to rule that West Virginia had to pay one-third of what Virginia owed.
He died four years later and is buried in Winchester. His papers are on file at the Handley Regional Library System.
Wong Kim Ark stayed in the United States, but traveled to China in 1932 and died there. His birth on American soil produced a landmark court case; his death went largely unrecognized.
The Supreme Court in 1897 was pretty adamant that the birthright clause of the 14th Amendment was so powerful that a mere birth on U.S. territory could create an American citizen even if the parents were legally forbidden from becoming citizens. However, Frost says, there’s one important distinction between Wong’s case and cases that might arise today: Wong’s parents were in the U.S. legally. They weren’t allowed to become American citizens under the Chinese Exclusion Act, but they did have legal status — something that any immigrants who entered the country without the proper paperwork today would not have. Does the 14th Amendment, does the U.S. Constitution, apply to them? Trump’s lawyers will argue it does not, that the phrase “subject to the jurisdiction thereof” means immigrants without legal status aren’t covered. The counter-argument: If that were so, such immigrants could not be charged with any crime, and that’s not the case. Trump is trying to expand some small language about diplomatic immunity into a larger interpretation.
What are the prospects that the U.S. Supreme Court would rule against birthright citizenship, at least as it applies to the children of immigrants who arrived without authorization?
“If you’d asked me three to four years ago, I’d say it’s never going to happen,” Frost says. “I’m a little less sanguine now. I’m not saying it’s going to happen at all but I think there may be two or three votes on the Supreme Court to do that. It no longer feels like something to me that can’t possibly happen. It used to seem inconceivable; it no longer seems inconceivable.”
If that happens, then the arguments of Holmes Conrad might prevail after all.
A busy week in both Washington and Richmond
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