John Marshall Harlan and the 14th Amendment

04Feb11

With conservative outrage over so-called anchor babies, there has been a lot of press recently about the 14th amendment. A recent post at Time.com discussed how the US v. Wong Kim Ark (169 US 649) case established that any person born within US borders was automatically a US citizen. Wong was born in San Francisco to Chinese immigrant parents. Wong left the country for a visit to China and when he came back he was denied entry into the country by customs officials who claimed that he was not a citizen. He appealed their decision all the way to the Supreme Court, and in March 1898 they decided, 6-2, that he and all other non-nationals born in the country were, in fact, citizens.

Interestingly, one of the two dissenters was John Marshall Harlan. In an earlier post, I commented on the constitutional law class Harlan taught at George Washington University, and I complained that Harlan barely mentioned the Reconstruction Amendments. However, the lecture in which he did discuss them was on May 7, 1898, a mere 6 weeks after the decision in Wong Kim Ark was handed down. As a result, the students got an earful on the subject. This is one of the few occasions that I know of where Harlan talked about his views of a case he was on outside of a written opinion. It’s kind of a minor miracle that it was this year his lectures were copied down. Here is what he had to say about the case:

“The question turns upon two or three words of this amendment. All persons born in the United States, well he was born here, but now come the words, “and subject to the jurisdiction thereof.” Now if that boy was within the meaning of that clause, subject to the jurisdiction of the United States, then he became a citizen of the United States, and of the state wherein he resided. The majority of the court held that he was. The minority held that he was not born to the jurisdiction of the United States, as to this Constitution. He was not born subject to the political jurisdiction of the United States. Of course he owed allegiance to our laws, as every man who comes here, but he was not born under the jurisdiction of the United States within the meaning of this article of the Constitution. I was one of the minority, and of course I was wrong. Suppose an English father and mother went down to hot Springs to get rid of the gout, or rheumatism, and while he is there, there is a child born. Now he goes back to England. Is that child a citizen of the United States, born to the jurisdiction thereof, by the mere accident of his birth? My belief was never intended to embrace everybody in our citizenship if he was the child of parents, who can not under the law become naturalized in the United States. I was unable to believe that when the boy’s parents could not become citizens of the United States, that it was possible for him to become a citizen of the United States. One of the results of the opposite view is that when that man goes back to China, and the emperor should conclude to cut his head off, a custom which prevails to a very great extent among these people, we would have to prevent it, and if we could not do this, make him pay for it afterwards. Or if they impress him into the Chinese army, we would have to protect him. Of course I am wrong, because only the Chief Justice and myself held these views, and as the majority decided the other way, we must believe we were wrong.”

Not exactly the opinion one would expect from the Great Dissenter.

I should clarify one statement. When Harlan states that “the boy’s” parents could not become citizens, it was because the Chinese Exclusion Act of 1882 explicitly prohibited the Chinese from becoming US citizens. So when he said the English boy could become a citizen, one of his reasons was purely legal. But it’s to believe there wasn’t some racism at play there as well. While at this stage of his life, Harlan was viewed as a friend of African-Americans, he was also known for his statements against the Chinese, a race he believed to be so alien that they could never be assimilated into American society. History, of course, has proven him wrong. I wonder if he were alive today, if he would still feel the same.

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