Last week, while listening to the oral argument in Trump v. Barbara, I was pleasantly surprised to hear Justice Gorsuch ask the Solicitor General and Cecilia Wang, counsel for the ACLU, about Justice Harlan's constitutional law lectures concerning Wong Kim Ark. Back in 2013, Brian Frye, Michael McCloskey, and I transcribed and published all of Harlan's lecture. This was done the old-fashioned way, without the benefit of AI. We went to the Rare Books room at the Library of Congress, and photographed more than 500 pages of archived materials. We also published an article in the George Washington Law Review analyzing the lecture notes.
Given the recent attention to Justice Harlan, I thought it would be helpful to reproduce both our discussion of Harlan's lecture on Wong Kim Ark, as well as the full transcript from the classes from before and after Wong Kim Ark was decided. (Yes, Harlan talked about the case while it was pending, and previewed his vote). Those excerpts appear in this post.
The ACLU and Justice Gorsuch accurately quoted the lecture notes, but I think you need to read the full context to understand Harlan's position. I will have more to say about Harlan's view in separate writing. Here, I just want to lay out the background.
Josh Blackman, Brian Frye and Michael McCloskey, John Marshall Harlan: Professor of Law, 81 George Washington Law Review 1063 (2013).
Brian Frye, Josh Blackman, and Michael McCloskey, Justice John Marshall Harlan: Lectures on Constitutional Law, 1897-98, 81 George Washington Law Review Arguendo 12 (2013).
C. American Citizenship and Equal Protection
One of Harlan's most passionate lectures was his discussion of United States v. Wong Kim Ark329 on March 19, 1898.330 In Wong Kim Ark, the Supreme Court considered whether birth in the United States was sufficient to grant United States citizenship to a person of Chinese descent.331 The Court, in a 6–2 decision by Justice Gray, held that Wong Kim Ark, who was born in the United States to Chinese citizens, acquired American citizenship at birth by the principle of jus soli.332 Chief Justice Fuller, joined by Justice Harlan, dissented, arguing for the principle of jus sanguinis, under which a child inherits citizenship from his or her father, regardless of birthplace.333
Wong Kim Ark was argued on March 5 and 8, 1897.334 When Harlan discussed it in class on March 19, 1898, he expressed views closely reflecting the dissent he eventually joined.335 Harlan argued that Chinese-Americans could not be assimilated into the American populace, and thus were not entitled to birthright citizenship under the Fourteenth Amendment.336 The case would be decided nine days later on March 28, 1898, after which Harlan explained how he reconciled his views with those of the majority.337 This discussion illuminates Harlan's chimerical views on race, and juxtaposes his enlightened dissents in Plessy v. Ferguson338 and the Civil Rights Cases339 with his xenophobic views in Wong Kim Ark.
1. A Preview of Wong Kim Ark in Class
Harlan was quite passionate, and certain, about his views on birthright citizenship. During his lecture on March 19, 1898, Justice Harlan had just finished discussing the importance of Dred Scott in bringing about the end of slavery when he considered birthright citizenship for three classes of people—the son of a freedman, an Indian, and a "Chinaman."340 Justice Harlan used this pending case as a vehi-cle to discuss Congress's Article I power to establish a uniform rule of naturalization and whether the Fourteenth Amendment curtailed "Congress['s] [power] to establish a uniform rule of naturalization."341
A child of "African descent" is born in Tennessee, Harlan hypothesized, and his "father was before him, freed by the Thirteenth Amendment, [and] made a freeman."342 Would the child be a citizen?
Now, that man, whatever Tennessee may think about him, however much she may grumble about it—if she does . . .–that man is not only a citizen of the United States, but he is a citizen of the state of Tennessee, because he was born in the United States, and born subject to the jurisdiction of the United States.343
But "Judge," a student interjects, "does that include Indians?"344 The answer: "No."345 Harlan cited the "very learned opinion . . . by the majority of the Court"346 in Elk v. Wilkins,347 in which an Indian, born on a reservation, "left his tribe and came into the state of Nebraska, intending to become a part of that people."348 The Court "thought that he could not become a citizen of the United States."349 Harlan, who did not join that "learned opinion," "had the misfortune to differ from the Court upon that question, and of course [he] was wrong."350 Harlan would have found someone born on an Indian reservation to be a citizen of the United States.351
Would a Chinaman born in this country be a citizen? We have now before us under consideration this case, and when I tell you the case you will probably understand why I cannot answer your question, as it has not been decided. It will be decided some of these days.352
Nonetheless, Harlan proceeded to give his views on the topic. Harlan described the facts of the case, wherein "a subject of the Emperor of China . . . [gave birth to] a male child."353 Wong Kim Ark, the son, now claims citizenship of the United States, "although his parents when he was born and still are today the subjects of the Emperor of China."354 He begins, "[w]e have for many years had the policy," and catches himself in midsentence, interjecting, "I am now giving you the argument on one side." He continues noting the longstanding policy to exclude the Chinese from America, because:
[T]his is a race utterly foreign to us, and never will assimilate with us. They are pagans in religion, so different from us that they do not intermarry with us, and we don't want to intermarry with them . . . . [N]o matter how long they have been here, they make arrangements to be sent back to their fatherland. [Thus] there is a wide gulf between our civilization and their civilization, and we don't want to mix.355
This belief mirrors one of the lesser known aspects of his legendary Plessy v. Ferguson dissent: "There is a race so different from our own that we do not permit those belonging to it to become citizens of the United States. Persons belonging to it are, with few exceptions, absolutely excluded from our country. I allude to the Chinese race."356
Harlan poses a series of hypotheticals of what "would have been the condition today of the states of California, Oregon, Washington, Nevada, and Utah . . . if we had no restriction whatever against the admission of Chinese in this country."357 Fearing that if "fifty million" of the "two or three hundred million" in China immigrated to the "Pacific slope" with no restrictions, these states "would have been dominated by that race. They would have rooted out the American population that is there, would have compelled all of the laboring part of that country to have left and come to other parts of the country to seek subsistence."358
Harlan queries:
Can it be possible that the Fourteenth Amendment had the effect of tying the hands of the Congress of the United States in the matter of naturalization, so that children born in this country of people who are Chinese subjects, and who always remain such, should become citizens of the United States?359
Harlan feared a scenario wherein a "father and mother [of a] race [that was] excluded from this country . . . [had a] son by the accident of his birth in this country" who would be "eligible to the Presidency of the United States."360
[By] the same principle . . . if some of our own people, American- born and their ancestors American-born . . . [should give birth to a child] while . . . traveling in foreign lands . . . that son would not be a citizen of the United States [because he was neither born in the United States nor naturalized in the United States].361
Harlan asks if the Fourteenth Amendment should have "the effect of tying the hands of the Congress" so that children of Chinese subjects should become citizens of the United States.362 Harlan dedicates but a single sentence to presenting the "argument on the other side," which focuses on the words of the Fourteenth Amendment, which "embrace just such a cause."363 Notwithstanding his excessive commentary on the issue, Harlan notes that he "do[es] not think [he] can answer [the questions] yet."364 He concludes by noting, "When the case is decided I will try and bring it to the attention of the class. How it may be decided, I do not know. If I did, I would not say."365 But, he most certainly did know how the case would be resolved— even if he did not say.
2. A Recap of Wong Kim Ark in Class
Justice Harlan more than showed his cards as to how he thought the case should be decided. United States v. Wong Kim Ark was decided nine days later on March 28, 1898.366 In that case, Justice Harlan joined Chief Justice Fuller's dissent, arguing that a "Chinaman" born in the United States to parents who were still subjects of China could not become a citizen.367 Many of Chief Justice Fuller's arguments tracked closely with the argument Harlan presented in his lectures.
Both Harlan's lectures and Fuller's opinion note the unwillingness of Chinese immigrants to assimilate and their continued loyalty to the Emperor of China.368 Both also make the exact same comment that the Framers could not have intended a foreigner born by accident in the United States to be eligible to run for President, while children of American citizens born abroad were not:
Considering the circumstances surrounding the framing of the Constitution, I submit that it is unreasonable to conclude that "natural-born citizen" applied to everybody born within the geographical tract known as the United States, irrespective of circumstances; and that the children of foreigners, happening to be born to them while passing through 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.369
Harlan held deeply the beliefs he lectured about in class, as he vigorously argued in favor of his position, but only casually mentioned the other side's argument in a single sentence.370 One could wonder how much influence Harlan had in the authorship of Fuller's dissent, or if Harlan himself had authored parts of it but chose not to claim ownership.
After the Court decided Wong Kim Ark, Justice Harlan revisited his previous position on May 7, 1898 when discussing the Citizenship Clause of the Fourteenth Amendment.371 He remarked, "[w]e had an illustration of the application of [the Fourteenth Amendment] in the present term of our Court."372 The "question turns upon two or three words of this amendment"—actually five words—"subject to the jurisdiction thereof."373 If Wong Kim Ark "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."374 "The minority," which Harlan joined, "held that he was not born [subject] to the jurisdiction of the United States."375
Harlan explained his reasoning, observing that "[h]e 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."376 This mirrors the statement Senator Lyman Trumbull of Illinois made during the ratification debates of the Fourteenth Amendment, cited in the Wong Kim Ark dissent: "What do we mean by 'subject to the jurisdiction of the United States'? Not owing allegiance to anybody else; that is what it means."377
Harlan revisits the example he posed in his earlier class, that was discussed in Wong Kim Ark, wherein an "English father and mother went down to Hot Springs [in Arkansas] to get rid of the gout . . . and while [they were] there, there is a child born."378 The boy goes back to England. "Is this child a citizen of the United States, born to the jurisdiction thereof, by the mere accident of his birth?"379 Harlan answers no.380 His reasoning is more expansive, no longer focusing on his xenophobic views of the Chinese, but more broadly denying birthright citizenship to anyone subject to the loyalty of any foreign power. "My belief [was that the Fourteenth Amendment] was never intended to embrace everybody in our citizenship if he was the child of parents who cannot under the law become naturalized in the United States."381 While Congress can grant citizenship to the parents of natural born citizens, Harlan was unable to believe that "when the boy's parents could not become citizens of the United States [through the Constitution, or laws of Congress at that time], that it was possible for [the boy] to become a citizen of the United States."382 Closing with charm, Harlan conceded, "[o]f 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 that we were wrong."383
With his trademark wit, Harlan conceded, "I was one of the minority, and of course I was wrong."384
***
Lecture 21: March 19, 1898
We sometimes talk, when we think of the Civil War, about this, that, and the other battle being the turning point in that war; that if this particular battle had gone that way rather than the way it did, the results would have been far different. We say very often, for instance, that the turning point in the war was the battle of Gettysburg.
Well when we take our minds off of military matters to consider the political matters of the country. I think we may say that, but for this clause that I am about to read, the Constitution of this country might have been very different.
The first clause of the Fourteenth Amendment: "All persons." Not some persons, but all persons. Mark you, not all citizens, but "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."482
That, I believe, is the first time in the Constitution that you find the phrase "citizens of the United States."483 You find in the judiciary article a statement to the effect that the judicial power of the United States extends, among other things, to controversies between a state and citizens of another state, and between citizens of different states, but the phrase "citizens of the United States" appears for the first time in the Fourteenth Amendment.
What does that mean? What is the history of it? Along in the early fifties a case got to the Supreme Court of the United States. It is the case of Dred Scott against Sandford.484 It is in 18 or 19 Howard. Unless you read that case you will not understand many things that have occurred since that time. That was the case of a colored man bringing a suit in a circuit court of the United States, at the City of Saint Louis, I believe. It involved the question of his freedom, and it got to the Supreme Court of the United States.485
Now, you will remember I have just read to you that the judicial power of the United States extended to controversies between citizens of different states. One of the questions raised in the case was whether or not this colored man of African descent was a citizen, or could be a citizen, of the State of Missouri, so as to authorize him to sue in that capacity. And that induced the court to consider the question of citizenship generally: what was meant by citizenship of a state, what was meant by citizenship of the United States.
We sometimes are in the habit in our ordinary conversation of speaking of particular things which have occurred as providences: "That was a special providence." We say that George Washington was a special providence, that he was raised up for the work he did, and that no other man could have done the work—so far as we can tell—that he did. We say that Jefferson was a special providence, and that no other man could have performed the work that he did. We talk in the same way about Abraham Lincoln, and about Ulysses S. Grant in the same sense.
I think I may say that that case was a sort of special providence to this country, in that it laid the foundation of a civil war which, terrible as it was, awful as it was in its consequences in the loss of life and money, was in the end a blessing to this country, in that it rid us of the institution of African slavery. That case was the beginning of that struggle.
The majority of the Supreme Court of the United States as then constituted said that a colored man of African descent was not one of the people of the United States by whom and for whom this Constitution was ordained. It laid down the doctrine that citizenship of a state was different from the citizenship of the United States; that a man might be a citizen of the United States but he could not be a citizen of a state, except with the consent of that state.486
Now, in the light of that historical statement about which there can be no controversy, laid down in that opinion which stirred this country from one end of it to the other, which brought this country face to face with the problem that this government must die or slavery must die, it was consequences following from that which brought on the Civil War largely, which resulted in this Amendment, which says, beyond the power of any state to alter it—I am not now discussing the policy of these things, but telling you historical facts—which says by the fiat of the people of the United States that all persons born in the United States and subject to the jurisdiction of the United States, or all persons naturalized in the United States, are not only citizens of the United States but they are citizens of the state in which they reside.
Now, to state it in a way that you will understand it, here is a colored man in the state of Tennessee of African descent. He was born in the state of Tennessee, as his father was before him, freed by the Thirteenth Amendment, made a freeman.487 Now, that man, whatever Tennessee may think about him, however much she may grumble about it—if she does, I do not say that she does, but whatever she may think of it—that man is not only a citizen of the United States, but he is a citizen of the state of Tennessee, because he was born in the United States, and born subject to the jurisdiction of the United States. And the mandate of this instrument is those two facts concurring. He is a citizen of the United States, as well as a citizen of the state in which he resides.
Judge, does that include Indians?
No. The case of Elk against Wilkins—I wish I knew the volume—they were considered an exception.488 You will find a very learned opinion there by the majority of the Court. It was the case of an Indian who had left his tribe and came into the state of Nebraska, intending to become a part of that people, and the majority of the Court thought that he could not become a citizen of the United States. That case was apart from this Amendment. They were wards of the nation, and they thought he could not become a citizen of the United States. I had the misfortune to differ from the Court upon that question, and of course I was wrong.489
Would a Chinaman born in this country be a citizen?
We have now before us under consideration this case, and when I tell you the case you will probably understand why I cannot answer your question, as it has not been decided.490 It will be decided some of these days. It is the case of a man whose parents both were Chinese. They came to San Francisco at a time when it was easier for a Chinaman to get into this country than it is now, and the father engaged in business there. And shortly after he did engage in business there—still, however, a subject of the Emperor of China—a male child was born to him, twenty-odd years ago. A few years ago, that young man went back to China, and then attempted to return to this country, and was refused admission.
He claims that he was entitled to be admitted. He claims that he was a citizen of the United States, although his parents when he was born and still are today the subjects of the Emperor of China. For, says he, "I was born in the United States, and by the very terms of this Fourteenth Amendment I am a citizen of the United States." That is the question in the case.
Now, that question involves other considerations. You will remember in the Constitution there is power given to Congress to establish a uniform rule of naturalization.491 Did this Fourteenth Amendment curtail that power? What is naturalization? Why, it is turning a foreign-born man, or turning somebody who was not born of American parents, into a citizen.492
Now, does that Fourteenth Amendment curtail the power of the United States over the subject of naturalization? We have for many years had the policy—I am now giving you the argument on one side—we have had the policy of excluding the Chinese from this country absolutely, except certain classes, and the power of the government to do that no one disputes now or can dispute.493
It has been asserted time and time again, and we have done that upon the idea that this is a race utterly foreign to us, and never will assimilate with us. They are pagans in religion, so different from us that they do not intermarry with us, and we don't want to intermarry with them. And when they die, no matter how long they have been here, they make arrangements to be sent back to their fatherland. That there is a wide gulf between our civilization and their civilization, and we don't want to mix.494
The consequences of a different policy perhaps may be apprehended in my asking you one question, which I don't expect you to answer: What would have been the condition today of the states of California, Oregon, Washington, Nevada, and Utah, and that western Pacific slope, if we had no restriction whatever against the admission of Chinese in this country?
If out of two or three hundred million that are in China, if out of that number fifty million had been here by this time, as there would have been if there had been no restrictions, that whole Pacific slope today would have been dominated by that race. They would have rooted out the American population that is there, would have compelled all the laboring part of that country to have left and come to other parts of the country to seek subsistence.
Now, that is said on one side, and the question was put to the Court, "Can it be possible that the Fourteenth Amendment had the effect of tying the hands of the Congress of the United States in the matter of naturalization, so that children born in this country of people who are Chinese subjects, and who always remain such, should become citizens of the United States? If so, what would follow?" we were asked.
Why, they said, "It would follow that, although that man's mother or father, no matter what they could do, could never become naturalized citizens of the United States because we had never permitted naturalization of the Chinese, if that father and mother and that race were excluded from this country, that this son by the accident of his birth in this country became a citizen of the United States, and therefore eligible to the Presidency of the United States, eligible to the Senate of the United States, and eligible to any position in this country."
And according to the same principle, it was argued that if some of our own people, American-born and their ancestors American-born, but they should be traveling in foreign lands and stay there a year or so and a child boy should happen be born to them while there, that son would not be a citizen of the United States because he was neither born in the United States or naturalized in the United States.
Now, those questions are involved I say in that case, and I do not think I can answer it yet. When the case is decided, I will try and bring it to the attention of the class. How it may be decided, I do not know. If I did, I would not say. Of course, the argument on the other side is that the very words of the Constitution embrace just such a cause.
Lecture 27: May 7, 1898
Now I come to the Fourteenth Amendment. "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."662
I have explained to you before what was the origin of that amendment. I called your attention a long while ago to the contest in the Supreme Court of the United States in the Dred Scott case, where the Court held that a man of African descent was not one of the people of the United States, for whom the Constitution was established, and that even if he was a citizen of the United States, he was not a citizen of the state wherein he resided.663 And therefore a man whose parents were of African descent could not be a citizen of a state, without the consent of that state.
Out of that decision grew the Civil War, the greatest war in modern times. One of the results of that war was to uproot the doctrine of the Dred Scott case, and this amendment was the expression of that result. It is broad enough to include all persons. "All persons," mark the words, "born or naturalized in the United States," and "of the State wherein they reside."664
Therefore, it follows that every negro in the United States, if he had been born there or has been naturalized in the United States, when this amendment was adopted became a citizen of the United States and of the state wherein he resided. Therefore, if the state says, we do not intend to recognize you, Mr. Negro, this amendment steps in and says, "You must."
We had an illustration of the application of this amendment in the present term of our court. It was the case about the Chinese subject, to which I had called your attention heretofore.665 It was the case of the Chinaman born in San Francisco, twenty-odd years ago, of Chinese parents. Father and mother were living in San Francisco, the father engaged in business there, but they were subjects of the Emperor of China. And this boy was born to them in San Francisco. And the question was whether or not this Chinaman, the son of Chinese parents—residing in the United States, but nevertheless subjects of the Emperor of China—was a citizen of the United States, by reason of the fact that he was born there.
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.666 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.667 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 cannot 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 that we were wrong.
But the last clause of that section is a very important one. "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States."668 Now, that's a great right, with which we are all invested. I cannot stop to discuss what are the privileges and immunities of citizens of the United States. But whatever are the privileges and immunities of citizens of the United States, that amendment says that no state shall lay its hands on them, and if it does he may appeal to the law, supreme in this country.669
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