Justice John Marshall Harlan’s Lecture Notes On Wong Kim Ark

Final week, whereas listening to the oral argument in Trump v. Barbara, I used to be pleasantly surprised to listen to Justice Gorsuch ask the Solicitor Common and Cecilia Wang, counsel for the ACLU, about Justice Harlan’s constitutional legislation lectures regarding Wong Kim Ark. Again in 2013, Brian Frye, Michael McCloskey, and I transcribed and published all of Harlan’s lecture. This was carried out the old style approach, with out the good thing about AI. We went to the Uncommon Books room on the Library of Congress, and photographed greater than 500 pages of archived supplies. We additionally printed an article within the George Washington Law Review analyzing the lecture notes.

Given the current consideration to Justice Harlan, I assumed it might be useful to breed each our dialogue of Harlan’s lecture on Wong Kim Ark, in addition to the total transcript from the lessons from earlier than and after Wong Kim Ark was determined. (Sure, Harlan talked concerning the case whereas it was pending, and previewed his vote). These excerpts seem on this submit.

The ACLU and Justice Gorsuch precisely quoted the lecture notes, however I feel you want to learn the total context to grasp Harlan’s place. I’ll have extra to say about Harlan’s view in separate writing. Right here, I simply wish to lay out the background.

Josh Blackman, Brian Frye and Michael McCloskey, John Marshall Harlan: Professor of Law, 81 George Washington Regulation Evaluation 1063 (2013).

Brian Frye, Josh Blackman, and Michael McCloskey, Justice John Marshall Harlan: Lectures on Constitutional Law, 1897-98, 81 George Washington Regulation Evaluation Arguendo 12 (2013).

C. American Citizenship and Equal Safety

One in every of Harlan’s most passionate lectures was his dialogue of United States v. Wong Kim Ark329 on March 19, 1898.330 In Wong Kim Ark, the Supreme Court docket thought of whether or not delivery in the US was adequate to grant United States citizenship to an individual of Chinese language descent.331 The Court docket, in a 6–2 resolution by Justice Grey, held that Wong Kim Ark, who was born in the US to Chinese language residents, acquired American citizenship at delivery by the precept of jus soli.332 Chief Justice Fuller, joined by Justice Harlan, dissented, arguing for the precept of jus sanguinis, below which a toddler inherits citizenship from his or her father, no matter birthplace.333

Wong Kim Ark was argued on March 5 and eight, 1897.334 When Harlan mentioned it at school on March 19, 1898, he expressed views intently reflecting the dissent he ultimately joined.335 Harlan argued that Chinese language-Individuals couldn’t be assimilated into the American populace, and thus weren’t entitled to birthright citizenship below the Fourteenth Modification.336 The case can be determined 9 days in a while March 28, 1898, after which Harlan defined how he reconciled his views with these of the bulk.337 This dialogue illuminates Harlan’s chimerical views on race, and juxtaposes his enlightened dissents in Plessy v. Ferguson338 and the Civil Rights Cases339 along with his xenophobic views in Wong Kim Ark.

1. A Preview of Wong Kim Ark in Class

Harlan was fairly passionate, and sure, about his views on birthright citizenship. Throughout his lecture on March 19, 1898, Justice Harlan had simply completed discussing the significance of Dred Scott in bringing concerning the finish of slavery when he thought of birthright citizenship for 3 lessons of individuals—the son of a freedman, an Indian, and a “Chinaman.”340 Justice Harlan used this pending case as a vehi-cle to debate Congress’s Article I energy to ascertain a uniform rule of naturalization and whether or not the Fourteenth Modification curtailed “Congress[‘s] [power] to ascertain a uniform rule of naturalization.”341

A toddler of “African descent” is born in Tennessee, Harlan hypothesized, and his “father was earlier than him, freed by the Thirteenth Modification, [and] made a freeman.”342 Would the kid be a citizen?

Now, that man, no matter Tennessee might take into consideration him, nevertheless a lot she might grumble about it—if she does . . .–that man shouldn’t be solely a citizen of the US, however he’s a citizen of the state of Tennessee, as a result of he was born in the US, and born topic to the jurisdiction of the US.343

However “Choose,” a pupil interjects, “does that embody Indians?”344 The reply: “No.”345 Harlan cited the “very discovered opinion . . . by nearly all of the Court docket”346 in Elk v. Wilkins,347 by which an Indian, born on a reservation, “left his tribe and got here into the state of Nebraska, meaning to grow to be part of that folks.”348 The Court docket “thought that he couldn’t grow to be a citizen of the US.”349 Harlan, who didn’t be a part of that “discovered opinion,” “had the misfortune to vary from the Court docket upon that query, and naturally [he] was mistaken.”350 Harlan would have discovered somebody born on an Indian reservation to be a citizen of the US.351

Would a Chinaman born on this nation be a citizen? Now we have now earlier than us into account this case, and once I let you know the case you’ll most likely perceive why I can not reply your query, because it has not been determined. It will likely be determined a few of these days.352

Nonetheless, Harlan proceeded to provide his views on the subject. Harlan described the information of the case, whereby “a topic of the Emperor of China . . . [gave birth to] a male youngster.”353 Wong Kim Ark, the son, now claims citizenship of the US, “though his mother and father when he was born and nonetheless are right this moment the topics of the Emperor of China.”354 He begins, “[w]e have for a few years had the coverage,” and catches himself in midsentence, interjecting, “I’m now supplying you with the argument on one facet.” He continues noting the longstanding coverage to exclude the Chinese language from America, as a result of:

[T]his is a race completely overseas to us, and by no means will assimilate with us. They’re pagans in faith, so totally different from us that they don’t intermarry with us, and we do not wish to intermarry with them . . . . [N]o matter how lengthy they’ve been right here, they make preparations to be despatched again to their fatherland. [Thus] there’s a huge gulf between our civilization and their civilization, and we do not wish to combine.355

This perception mirrors one of many lesser recognized points of his legendary Plessy v. Ferguson dissent: “There’s a race so totally different from our personal that we don’t allow these belonging to it to grow to be residents of the US. Individuals belonging to it are, with few exceptions, completely excluded from our nation. I allude to the Chinese language race.”356

Harlan poses a collection of hypotheticals of what “would have been the situation right this moment of the states of California, Oregon, Washington, Nevada, and Utah . . . if we had no restriction no matter towards the admission of Chinese language on this nation.”357 Fearing that if “fifty million” of the “two or 300 million” in China immigrated to the “Pacific slope” with no restrictions, these states “would have been dominated by that race. They’d have rooted out the American inhabitants that’s there, would have compelled all the laboring a part of that nation to have left and are available to different elements of the nation to hunt subsistence.”358

Harlan queries:

Can it’s attainable that the Fourteenth Modification had the impact of tying the arms of the Congress of the US within the matter of naturalization, in order that kids born on this nation of people who find themselves Chinese language topics, and who at all times stay such, ought to grow to be residents of the US?359

Harlan feared a situation whereby a “father and mom [of a] race [that was] excluded from this nation . . . [had a] son by the accident of his delivery on this nation” who can be “eligible to the Presidency of the US.”360

[By] the identical precept . . . if a few of our personal folks, American- born and their ancestors American-born . . . [should give birth to a child] whereas . . . touring in overseas lands . . . that son wouldn’t be a citizen of the US [because he was neither born in the United States nor naturalized in the United States].361

Harlan asks if the Fourteenth Modification ought to have “the impact of tying the arms of the Congress” in order that kids of Chinese language topics ought to grow to be residents of the US.362 Harlan dedicates however a single sentence to presenting the “argument on the opposite facet,” which focuses on the phrases of the Fourteenth Modification, which “embrace simply such a trigger.”363 However his extreme commentary on the difficulty, Harlan notes that he “do[es] not suppose [he] can reply [the questions] but.”364 He concludes by noting, “When the case is determined I’ll attempt to carry it to the eye of the category. The way it could also be determined, I have no idea. If I did, I’d not say.”365 However, he most actually did know the way the case can be resolved— even when he didn’t say.

2. A Recap of Wong Kim Ark in Class

Justice Harlan greater than confirmed his playing cards as to how he thought the case needs to be determined. United States v. Wong Kim Ark was determined 9 days in a while March 28, 1898.366 In that case, Justice Harlan joined Chief Justice Fuller’s dissent, arguing {that a} “Chinaman” born in the US to oldsters who had been nonetheless topics of China couldn’t grow to be a citizen.367 Lots of Chief Justice Fuller’s arguments tracked intently with the argument Harlan introduced in his lectures.

Each Harlan’s lectures and Fuller’s opinion notice the unwillingness of Chinese language immigrants to assimilate and their continued loyalty to the Emperor of China.368 Each additionally make the very same remark that the Framers couldn’t have meant a foreigner born accidentally in the US to be eligible to run for President, whereas kids of Americans born overseas weren’t:

Contemplating the circumstances surrounding the framing of the Structure, I submit that it’s unreasonable to conclude that “natural-born citizen” utilized to all people born throughout the geographical tract referred to as the US, regardless of circumstances; and that the youngsters of foreigners, occurring to be born to them whereas passing via the nation, whether or not of royal parentage or not, or whether or not of the Mongolian, Malay or different race, had been eligible to the Presidency, whereas kids of our residents, born overseas, weren’t.369

Harlan held deeply the beliefs he lectured about at school, as he vigorously argued in favor of his place, however solely casually talked about the opposite facet’s argument in a single sentence.370 One may marvel how a lot affect Harlan had within the authorship of Fuller’s dissent, or if Harlan himself had authored elements of it however selected to not declare possession.

After the Court docket determined Wong Kim Ark, Justice Harlan revisited his earlier place on Could 7, 1898 when discussing the Citizenship Clause of the Fourteenth Modification.371 He remarked, “[w]e had an illustration of the appliance of [the Fourteenth Amendment] within the current time period of our Court docket.”372 The “query turns upon two or three phrases of this modification”—really 5 phrases—”topic to the jurisdiction thereof.”373 If Wong Kim Ark “was throughout the that means of that clause, ‘topic to the jurisdiction’ of the US, then he grew to become a citizen of the US, and of the state whereby he resided. Nearly all of the Court docket held that he was.”374 “The minority,” which Harlan joined, “held that he was not born [subject] to the jurisdiction of the US.”375

Harlan defined his reasoning, observing that “[h]e was not born topic to the political jurisdiction of the US. In fact, he owed allegiance to our legal guidelines, as each man who comes right here, however he was not born below the jurisdiction of the US, throughout the that means of this text of the Structure.”376 This mirrors the assertion Senator Lyman Trumbull of Illinois made through the ratification debates of the Fourteenth Modification, cited within the Wong Kim Ark dissent: “What can we imply by ‘topic to the jurisdiction of the US’? Not owing allegiance to anyone else; that’s what it means.”377

Harlan revisits the instance he posed in his earlier class, that was mentioned in Wong Kim Ark, whereby an “English father and mom went all the way down to Scorching Springs [in Arkansas] to eliminate the gout . . . and whereas [they were] there, there’s a youngster born.”378 The boy goes again to England. “Is that this youngster a citizen of the US, born to the jurisdiction thereof, by the mere accident of his delivery?”379 Harlan solutions no.380 His reasoning is extra expansive, now not specializing in his xenophobic views of the Chinese language, however extra broadly denying birthright citizenship to anybody topic to the loyalty of any overseas energy. “My perception [was that the Fourteenth Amendment] was by no means meant to embrace all people in our citizenship if he was the kid of fogeys who can not below the legislation grow to be naturalized in the US.”381 Whereas Congress can grant citizenship to the mother and father of pure born residents, Harlan was unable to consider that “when the boy’s mother and father couldn’t grow to be residents of the US [through the Constitution, or laws of Congress at that time], that it was attainable for [the boy] to grow to be a citizen of the US.”382 Closing with allure, Harlan conceded, “[o]f course, I’m mistaken, as a result of solely the Chief Justice and myself held these views, and because the majority determined the opposite approach, we should consider that we had been mistaken.”383

Together with his trademark wit, Harlan conceded, “I used to be one of many minority, and naturally I used to be mistaken.”384

***

Lecture 21: March 19, 1898

We typically speak, once we consider the Civil Struggle, about this, that, and the opposite battle being the turning level in that conflict; that if this explicit battle had gone that approach moderately than the best way it did, the outcomes would have been far totally different. We are saying fairly often, for example, that the turning level within the conflict was the battle of Gettysburg.

Properly once we take our minds off of army issues to contemplate the political issues of the nation. I feel we might say that, however for this clause that I’m about to learn, the Structure of this nation may need been very totally different.

The primary clause of the Fourteenth Modification: “All individuals.” Not some individuals, however all individuals. Mark you, not all residents, however “All individuals born or naturalized in the US, and topic to the jurisdiction thereof, are residents of the US and of the State whereby they reside.”482

That, I consider, is the primary time within the Structure that you just discover the phrase “residents of the US.”483 You discover within the judiciary article an announcement to the impact that the judicial energy of the US extends, amongst different issues, to controversies between a state and residents of one other state, and between residents of various states, however the phrase “residents of the US” seems for the primary time within the Fourteenth Modification.

What does that imply? What’s the historical past of it? Alongside within the early fifties a case bought to the Supreme Court docket of the US. It’s the case of Dred Scott towards Sandford.484 It’s in 18 or 19 Howard. Except you learn that case you’ll not perceive many issues which have occurred since that point. That was the case of a coloured man bringing a swimsuit in a circuit courtroom of the US, on the Metropolis of Saint Louis, I consider. It concerned the query of his freedom, and it bought to the Supreme Court docket of the US.485

Now, you’ll bear in mind I’ve simply learn to you that the judicial energy of the US prolonged to controversies between residents of various states. One of many questions raised within the case was whether or not or not this coloured man of African descent was a citizen, or could possibly be a citizen, of the State of Missouri, in order to authorize him to sue in that capability. And that induced the courtroom to contemplate the query of citizenship typically: what was meant by citizenship of a state, what was meant by citizenship of the US.

We typically are within the behavior in our odd dialog of talking of explicit issues which have occurred as providences: “That was a particular windfall.” We are saying that George Washington was a particular windfall, that he was raised up for the work he did, and that no different man may have carried out the work—as far as we are able to inform—that he did. We are saying that Jefferson was a particular windfall, and that no different man may have carried out the work that he did. We speak in the identical approach about Abraham Lincoln, and about Ulysses S. Grant in the identical sense.

I feel I could say that that case was a form of particular windfall to this nation, in that it laid the muse of a civil conflict which, horrible because it was, terrible because it was in its penalties within the lack of life and cash, was in the long run a blessing to this nation, in that it rid us of the establishment of African slavery. That case was the start of that wrestle.

Nearly all of the Supreme Court docket of the US as then constituted mentioned {that a} coloured man of African descent was not one of many folks of the US by whom and for whom this Structure was ordained. It laid down the doctrine that citizenship of a state was totally different from the citizenship of the US; {that a} man is perhaps a citizen of the US however he couldn’t be a citizen of a state, besides with the consent of that state.486

Now, within the gentle of that historic assertion about which there will be no controversy, laid down in that opinion which stirred this nation from one finish of it to the opposite, which introduced this nation nose to nose with the issue that this authorities should die or slavery should die, it was penalties following from that which introduced on the Civil Struggle largely, which resulted on this Modification, which says, past the facility of any state to change it—I’m not now discussing the coverage of this stuff, however telling you historic information—which says by the fiat of the folks of the US that every one individuals born in the US and topic to the jurisdiction of the US, or all individuals naturalized in the US, are usually not solely residents of the US however they’re residents of the state by which they reside.

Now, to state it in a approach that you’ll perceive it, here’s a coloured man within the state of Tennessee of African descent. He was born within the state of Tennessee, as his father was earlier than him, freed by the Thirteenth Modification, made a freeman.487 Now, that man, no matter Tennessee might take into consideration him, nevertheless a lot she might grumble about it—if she does, I don’t say that she does, however no matter she might consider it—that man shouldn’t be solely a citizen of the US, however he’s a citizen of the state of Tennessee, as a result of he was born in the US, and born topic to the jurisdiction of the US. And the mandate of this instrument is these two information concurring. He’s a citizen of the US, in addition to a citizen of the state by which he resides.

Choose, does that embody Indians?