In 1898, the Supreme Court ruled in a landmark case that Wong Kim Ark, a child of Chinese parents who was himself born in San Francisco, was indeed an American citizen.

This right to citizenship derived from language in the 14th amendment, stating: 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 yet, because that amendment had been designed to give former slaves citizenship after the Civil War, Wong Kim Ark's case marked the first time in U.S. history that the courts confirmed it could also apply to immigrants' children, born in America, even if the parents weren't citizens themselves.

The second episode of The Washington Post's “Constitutional” podcast explores this case and the role it came to play in profoundly shaping immigration to — and diversity in — America.

Episode guests include Erika Lee, a history professor at the University of Minnesota and director of the Immigration History Research Center, as well as the author of “The Making of Asian America: A History”; and Lucy Salyer, a history professor at the University of New Hampshire and author of “Laws Harsh as Tigers: Chinese Immigrants and the Shaping of Modern Immigration Law.”

Check out the “Constitutional” Web page and subscribe to get new episodes free on Apple PodcastsStitcher or wherever you listen to podcasts. For updates about the series, you can also follow podcast host Lillian Cunningham on Twitter: @lily_cunningham

Transcript of “Episode 03: Nationality”

Lillian Cunningham: It’s 1895, and waves are slapping against a groaning steamship, the Coptic, docked in San Francisco Bay. There’s a young man named Wong Kim Ark, only 22-years old, confined below deck.

He’s stuck onboard because when he went to get off the ship, after a long trip back to the U.S. from China, the customs collector in San Francisco must have said: You’re Chinese. You’re not allowed onto U.S. soil. The commissioner was enforcing a nationwide exclusion act that banned all Chinese workers from entering the United States. It was the first time America had any ban of this kind.

Well no, I’m actually American, Wong Kim Ark said. My parents are Chinese but I was born right here in San Francisco. See, here are my papers. I’m a citizen and I’m just coming home.

That doesn’t make you an American, the collector said. Doesn’t matter that you were born here. Your parents are Chinese, so you’re Chinese, and you can’t come in.

But was the customs collector right? That question — whether citizenship is the birthright of anyone born in the United States — would go to the courts. And while it did, Wong Kim Ark is left here — rocking out on the choppy waters of the bay, waiting for a judge to decide whether he’s American and can disembark.

At the same time, on the other side of America, waves are lapping around a colossal statue, fixed in New York Harbor. It was a recent gift from France to the United States, celebrating the country’s founding principles of life, liberty and the pursuit of happiness. Wong Kim Ark would never see the Statue of Liberty. Yet there she was, immense and immovable, welcoming immigrants to her shores with the promise: Here, you are free.

I’m Lillian Cunningham with The Washington Post, and this is Constitutional.

Intro music for podcast: “We the People of the United States, in order to form a more perfect union, establish justice, ensure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty, for ourselves and our posterity, do ordain and establish this Constitution for the United States of America.”

Cunningham: “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’s the first line of the 14th amendment.

It was primarily designed to give former slaves citizenship after the Civil War. But that particular language — about how everyone born on U.S. soil is considered a citizen — would also come to profoundly shape immigration to America. It would mean that the children of undocumented immigrants could automatically have citizenship in America. It would mean that the children of banned immigrant groups could automatically have citizenship in America. It would mean that no matter where your parents were from or how they got here or how much any given administration wanted them excluded — if you were born on this soil, this earth, you were American.

However open or closed our borders have been over American history, whatever the tides of inclusion and exclusion, that constitutional reality would ultimately enshrine and preserve the idea of America as a nation of immigrants. And the powerful but little-known story of Wong Kim Ark marks the moment it really became the law of the land.

Questions about the value of immigration, though, were debated as far back as the founding of the country in 1776.

The founders made clear in their letter to the king of England that immigration was important to them. It was actually one of the main issues they had with the king — that he was trying to block people from emigrating to America.

So you might expect that when the framers had the chance to draft their own constitution, about 10 years later, they would carve into the document a grand law protecting and defining immigration to the United States. Especially since, of the 39 men who signed the Constitution, seven were immigrants themselves — including really influential voices at the convention like Alexander Hamilton — who was born in the West Indies — and James Wilson, who was born in Scotland.

Erika Lee:  At the time of the drafting of the U.S. Constitution, the United States is already very much both an immigrant and a settler nation.

Cunningham: Erika Lee is a professor of history at the University of Minnesota and director of the Immigration History Research Center.

Lee:  I use that word settler very deliberately because immigrants not only served a purpose for the United States in that they were helping to settle this land — land that, in many ways, was in the process of being taken from Native Americans — but they were also the beginning of what we would understand as immigrants, people fleeing persecution in search of a better future for themselves and hopefully for later generations. But at the time of our nation's founding both of those impulses were important and really vital to how we would then welcome and also be suspicious of immigrants. And one of the main questions that the Founding Fathers and others were really grappling with was how to you know how to define ‘we the people’ and how to how to legislate that.

Cunningham: And so it turns out that, at the Constitutional Convention, there’s actually a real range of views. Some delegates see a great value in promoting immigration; but others say: Cunningham: Yeah, we want some immigrants ... but we’re a bit worried that having a ton of people from all different backgrounds will make it harder for this young nation to develop a strong and distinct identity of its own.

Lee: Benjamin Franklin was famously very suspicious of German immigrants, in particular, in Pennsylvania. He is alarmed at the way in which they're not assimilating that they're herding together, they're creating their own institutions, reading their own German language newspapers and that especially the second generation was not assimilating either.

Cunningham: Concerns like these infuse the delegates’ discussions at the Convention.

Salyer: There were really different visions of what this republic was going to look like and how immigrants would fit into it.

Cunningham: Lucy Salyer is a history professor at the University of New Hampshire who specializes in immigration law.

Salyer: Some thought this was a nation that could absorb many different peoples and what held them together were common political principles. Others were not so sure what it would take to transform people who were coming from very different governmental systems, from monarchies, how they would be transformed into self-governing citizens.

Cunningham: The framers ultimately decided not to write into the Constitution a firm immigration policy, or a definition of who gets to be a citizen. Instead, they simply wrote into Article I, Section 8 that “The Congress shall have the power to establish a uniform rule of naturalization.”

And what that meant was, basically, it’s up to Congress to decide what the requirements are to become an American citizen if you weren’t born here.

The delegates also mention immigration in the sections of the Constitution that detail who can hold office in America.

Salyer: There is a lot of debate at the time about office holding. Should anybody be able to serve as president or as a senator or as a representative in the House of Representatives. Theoretically naturalized Americans and so those are people who are born abroad, come here and decide to become a citizen. They take an oath of allegiance. Theoretically naturalized citizens and native-born citizens were supposed to be equal. But there was still this sort of suspicion that native born citizens were going to be more American somehow.

Cunningham: Because of this concern, the framers put in the Constitution that you need to live in the United States for 7 years after becoming a citizen before you can serve in the House of Representatives. And for 9 years before you can serve in the Senate. Then they take an even firmer line for the presidency: They write that only people born in America can be president, which is still true to this day.

Salyer: So you still see this bit of distrust, a concern about how long does it take people from abroad, from other countries, to become American and to rule and serve in office in the interest of the nation.

Cunningham: Now, that said, when George Washington became president, three of his Supreme Court appointees were immigrants. And four of the first six Treasury secretaries in this country were immigrants as well.

So by and large, the Constitution leaves much of the decisions about immigration to future government leaders to solve as they see fit. But interestingly, even though the Constitution gives Congress the authority to decide the rules of citizenship, it doesn’t actually say anything about whether Congress has the right to regulate who comes into the country or whether Congress has the right to kick people out.

Yet sure enough, almost immediately, Congress starts passing laws along those lines. Revolutions and wars have broken out across Europe in the 1790s, in the very first years of this new American nation.

Salyer: So you have refugees from France from Britain from Ireland and the federalists raised the alarm that what dangerous ideas might these exiles be bringing with them. Maybe spies or terrorists might be slipping in with the legitimate refugees.

Cunningham: So amid this immigrant fear, under our second president, John Adams, we see the passage of laws called the Alien and Sedition Acts.

Salyer: The alien acts really strengthen the hand of Congress and the president. The acts authorize the president to deport any dangerous aliens. And it allowed the executive to incarcerate enemy aliens during time of war. So this created a big debate over, well, is this constitutional?

Cunningham: Around this time, Congress also took up that task of formalizing the rules for becoming a U.S. citizen. In 1790, it passed the first naturalization act, which declared that In order to become a citizen, you had to be a free white person.

Lee: And this law is really fascinating —

Cunningham:  Professor Erika Lee again.

Lee: On the one hand, it's extremely it's revolutionary. It's extremely inclusionary. it allows for any free white male to become a naturalized citizen of the United States — and within a global context you know this is not the norm in terms of how nations allow so many people and at such a low bar to become a member of the nation. But of course, on the other hand it's extremely exclusionary. As a more diverse groups of immigrants from all over the world start coming to the United States, one of the automatic questions is, are they white?

Salyer: And that's really striking I think for modern ears that you had to be white to become an American citizen. But it was a requirement that had huge ramifications throughout American history. And we would have a race requirement for naturalization until 1952 when Congress finally repeals that. So, it led to the question well who is white? Are Syrians white? Are people from India, are Chinese?

Cunningham: The answer, for so much of the country’s history, was no — they aren’t white. And so, no, such people can’t ever apply for citizenship if they move to America.

Here’s where we come back to the story of Wong Kim Ark — roughly 100 years after the writing of the Constitution.

His parents were Chinese, and they came to America in the late 1800s part of a wave of immigrants who sailed from China to toil in the American West in strenuous jobs laying down iron railroad tracks, or descending into gold mines, or making fabrics in the garment industry. They knew they could never become U.S. citizens because of the race requirement, but at the time they were allowed to immigrate here temporarily to work — though the work was unforgiving and discrimination was widespread.

Lee: Chinese immigrants are present in North and South America as early as the 1600s. But mass migration doesn't really begin until 1849 through the early 1850s with the California gold rush.

And so, when Chinese immigrants start coming they're automatically treated very differently than the others. They're discriminated against with punitive housing policies and other taxes that really only apply to businesses like laundries that they are involved in. They're driven out from the gold mines, driven out from towns and cities. So, from the 1850s up through the 1880s this is a period of rampant anti-Chinese sentiment. But many industrialists especially the railroad barons are dependent on Chinese immigrant labor. The opportunity to build the Transcontinental Railroad — the first time that the United States would be linked by rail, in the 1860s — leads many capitalists to search for really large pools of labor. And so, they send labor recruiters to China to recruit tens of thousands of workers to come and build the railroad. And it's horrible work. They're paid less than their white counterparts. And when the railroad is completed they're still here in the United States looking for other work.

Cunningham: Yet in 1873, the year of Wong Kim Ark’s birth, a financial panic hit. And then a horrible depression swept across the country. It left Americans poor and out of work. And amid that loss, some people searched for a place to turn their blame. And the blame landed, increasingly, on Chinese workers.

Salyer: The Chinese were actually not a huge number of immigrants at the time. By 1880 there were about 105,000 Chinese immigrants living in the United States. They constitute 2 percent of the total immigrant population. So, it's somewhat of a puzzle why the Chinese are singled out.

Cunningham: There were roughly 7 million immigrants in America. And the majority were from Ireland and Germany.

Salyer: But in some ways the Chinese workers and immigrants become the scapegoat of the white working men's movement. These are workers who are themselves quite vulnerable in this boom and bust economy. And increasingly they blame their woes on Chinese workers who, they say, work for less money, don't need as much money to live on. And they argue they cannot compete with Chinese workers.

Lee: This long-standing story of racial discrimination against Chinese combined with the economic recession — and a new turning point in national politics where the West is becoming important for the first time in terms of its electoral votes — leads to a broadening of the anti-Chinese movement, not just amongst disgruntled white workers but across the political spectrum.

Cunningham: The hatemongering grew so strong that, in 1882, Congress passed the Chinese Exclusion Act — signed by President Chester Arthur. It put into place a ban on Chinese workers coming to the United States.

Now the Constitution never explicitly gave Congress the authority to pass immigration bans. But Congress had set a precedent early on when it passed those Alien and Sedition Acts. The Chinese Exclusion Act, though, goes much further.

Lee: It is the first time in U.S. history that we single out a group for exclusion. it explicitly bans Chinese laborers from coming into the United States. So, it's extraordinarily restrictive, at a time when all other groups are coming in mostly without restrictions.

Cunningham: 1882: The act goes into effect. In that same year, the Statue of Liberty’s arm — just her arm, clasping her torch — is on display in Madison Square Park, in New York City. Waiting for the rest of her body to be complete.

The irony was clear at the time to a young student, Saum Song Bo, who, a couple years into the ban, submitted a letter to a New York newspaper that said:

That statue represents Liberty holding a torch, which lights the passage of those of all nations who come into this country. But are the Chinese allowed to come? As for the Chinese who are here, are they allowed to enjoy liberty as men of all other nationalities enjoy it? Are they allowed to go about everywhere free from the insults, abuse, assaults, wrongs and injuries from which men of other nationalities are free?”

When the 14th amendment was passed after the Civil War, it declared that being born in the United States makes you an American citizen. And that amendment marked the first time in history that a formal definition of citizenship was actually cemented in the Constitution itself.

So, a question arises with this Chinese exclusion ban: What happens if your parents are Chinese but you were born in the United States? Does this relatively new 14th amendment apply to you? Are you indeed an American citizen?

This becomes the question at the heart of the Wong Kim Ark Supreme Court case.

Lee: So Wong Kim Ark was born in San Francisco in 1873. His parents were longtime residents of the city. His father was named Wong See Ping and his mother was Wee Lee.

Cunningham: His family lived in San Francisco’s Chinatown, the oldest Chinatown in the entire United States. And his father worked as a merchant there on Sacramento Street. It wasn’t exactly the place Chinese immigrants chose to live in San Francisco — it was the only place they were legally allowed to live.

Lee: So, life in Chinatown in the 1890s would have been highly segregated. There were only a few streets where it was safe to wander around after dark. And while they were raising their son, this is a time of virulent anti-Chinese sentiment the 1870s, 1880s, they returned to China but their son, Wong Kim Ark, remains in the United States.

Cunningham: He gets a job working as restaurant cook in San Francisco. It’s one of the only jobs that those of Chinese descent would be hired for at the time. And by 1894, at only about 21-years-old and alone in America without his parents, he decides to go visit them in China. He’s there for several months and then returns by ship to America, in August of 1895.

Even though the Chinese Exclusion Act had been in place for 12 years by now, banning new Chinese workers from entering the United States, Wong Kim Ark thought he should be able to return because he was born in America. He wasn’t a Chinese national immigrating here to seek work. He was — he thought — a U.S. citizen.

Lee: But Wong Kim Ark is kind of unlucky because in the 1890s the U.S. federal government is a little frustrated and especially the immigration officials who are guarding the gate in San Francisco, the ones who are really bearing the brunt of enforcing immigration law — an immigration law that really wasn't that well thought out. And they're facing a lot of pressure from the American public which is had thought that the exclusion act would have solved their Chinese problem.

But they see that there are still Chinese immigrants in the United States. And the guy at the head of the immigration service at this time is a man name John Wise, he's collector of customs for San Francisco. And he had been involved in the anti-Chinese movement for decades. and he decides to make a test case out of Wong Kim Ark. And he excludes him. He bars him from reentering the United States and orders that he be returned to China.

Cunningham: So this is why, as you now know, he gets back on the Coptic, the steamship that had ferried him here from China, and sits in San Francisco Bay. Then he’s transferred to another ship, the Gaelic. Then another ship, the Peking. In the meantime, Wong Kim Ark has hired a lawyer to challenge the fact that he’s being detained. And for four months, as his case goes before the federal district court in San Francisco, he sits on these ships — awaiting his fate, rocking back and forth.

His lawyer goes before the judge and argues that Wong Kim Ark’s right to enter the United States should be crystal clear. He was born in America and therefore he’s a citizen under the wording of the 14th amendment.

But part of the complication is: Since that amendment was originally passed to give citizenship to newly freed slaves, the courts haven’t actually yet confirmed — or upheld — that it also applies to immigrants’ children who are born here.

Lee: For the legal system this case really starts to examine carefully this question of U.S. citizenship. How do we determine how a U.S. citizen is made? Is it by the principle of where a person is born, or is it by blood?

Cunningham: Because of the government’s interest at the time in excluding Chinese people from the country, it hopes that forcing the court to consider this “test case” of Wong Kim Ark will cement into law an interpretation of the 14th amendment that says: “Nope, the language about ‘being born on U.S. soil making you a U.S. citizen — that doesn’t apply in such cases like Wong Kim Ark whose parents were immigrants banned from citizenship.”

Cunningham: But the government’s plan here doesn’t work. The judge, William Morrow, rules in Wong Kim Ark’s favor, saying that he doesn’t find the 14th amendment quite logical but, yes, because Wong Kim Ark was born on U.S. soil, he’s therefore a U.S. citizen under the Constitution and he should be allowed back into his home country.

Cunningham: But the federal government still thinks the ruling is wrong — and it appeals it all the way to the Supreme Court, in 1897.

Lee: The U.S. government had been arguing that Wong Kim Ark, although born in the United States, essentially inherited had his citizenship from his parents who were aliens barred from naturalized citizenship because they were Chinese. And also, the argument proceeded in such a way that said that Chinese were in particular an unassimilable race — that even if they spent a long time in the United States they still held a loyalty to the Emperor of China and would always and forever be alien.

Cunningham: Well, the Supreme Court justices don’t quite buy that.

Salyer: The Supreme Court upholds Wong Kim Ark’s case using what lawyers call the slippery slope argument. Well what would happen if we adopted that rule? It's not just the children of Chinese immigrants who would be denied citizenship but children of other immigrants — you know English, Irish, German, French, Russian, Italian. Their children would also not be recognized as citizens. And what kind of nation would you have then? They posited.

Cunningham: In the opinion, Justice Horace Gray writes that the children of foreigners are, indeed, subject to the jurisdiction of the country they’re born into — he says their citizenship derives from their place of birth, not from their blood. And furthermore, he says: A law of Congress, such as the Chinese Exclusion ban, cannot override the Constitution’s meaning or “impair its effect.” They decide to rule in Wong Kim Ark’s favor, settling the question once and for all.

Lee: The idea of automatically making birthright citizens simply because they had one toe on U.S. soil — this is something that is still being debated today. But its applicability to someone like Wong Kim Ark, whose parents were ineligible to become U.S. naturalized citizens because of their race and because of our laws, was still deemed a birthright U.S. citizen is really important and it has had a legacy for generations of Americans. A parallel case in our contemporary society is the status of children of undocumented immigrants, who cannot become naturalized citizens but who give birth to children in the United States — those children are still considered citizens of the United States because of the Wong Kim Ark decision.

Cunningham: By the time Wong Kim Ark’s case was decided, in 1898, the Statue of Liberty was complete and had been standing at her post in New York Harbor for more than a decade. The U.S. population was a bit shy of 80 million at the time, and 10 million of those were immigrants. Many in this rising tide of immigration entered the country through Ellis Island, looking up at this enormous statue.

But not all.

Lee: There was no Statue of Liberty on the Pacific Ocean, bordering San Francisco. And in many ways, that absence of a welcoming symbol really does reflect our divergent responses to immigration — and not just between Europeans and Asians. And of course, Ellis Island is known as the island of hope but also the island of tears. So certainly the immigrant experience for European experience for European immigrants is absolutely not one that is all positive. Many faced a lot of discrimination as well. But I think it's instructive to think about the different ways in which we have welcomed certain immigrants, we have turned away other immigrants. What is our nation's relationship to immigration? Why is it so complicated? And are we doing things the best way possible?

Cunningham: Though Wong Kim Ark’s case essentially settled the question about birthright citizenship — and set a lasting precedent for children of foreigners who are born in this country — the Chinese Exclusion Acts carried on. They carried on for decades and decades and decades.

Lee: The tragedy of the story is that for Wong Kim Ark it allowed him to come into the country for sure, but he was by no means an equal citizen in the United States. I went back to look at his immigration file. Every time that he went back and forth to China to visit his parents, for example. He eventually got married to someone in China and had children born over there. And he would go back and forth. He made two or three trips through the course of his lifetime. And here he is, the face of this landmark U.S. Supreme Court case establishing the principle birthright citizenship for all. But every time he left the country and every time he reentered the country, he still had to go through a barrage of humiliating interrogations. And he even had to fill out this form that was titled “Application of Alleged U.S. Citizen for Reentry into the United States.” And I can see from this immigration file and the passport photos that he attaches to each one of these applications, he's getting older. He's getting more tired. He still has to answer these questions.

Cunningham: The Chinese Exclusion Act, which was originally passed in 1882, was supposed to last only 10 years. But it kept getting renewed.

Lee: And in fact, the requirements for entry are tightened. Chinese immigrants are required to register and to carry their documentation with them at all times to show their legal residence in the United States. These are called certificates of identity and they become the basis of what we call today green cards.

And then in 1902, the law is extended again and made permanent in 1904. And by that time we are starting to exclude more immigrants. So, in 1882 when we exclude the Chinese we also exclude lunatics and polygamists and anarchists. After Chinese Exclusion is made permanent, we ban Japanese laborers in 1907. We ban South Asians, but really all Asians as part of the Asiatic barred zone in the 1917 Immigration Act. In 1924, we close the gates completely to all Asian immigrants through the Immigration Act of that year.

Cunningham: In 1931, Wong Kim Ark makes one last trip to China. He’s 58-years-old, tired, and the Chinese Exclusion Act is still in place in this country. He steps once again onto a boat, heading West from San Francisco Bay. And he never returns.

The Chinese Exclusion ban lasted all the way until 1943 — when America wanted ally support from China during World War II.

Lee: President Roosevelt and many lawmakers realize that it's highly hypocritical for the United States to turn to China and say: You are our ally. We fight alongside you in this evil war against Japan. But we just don't want any of your people to come to the United States. And in 1943 Madame Chaing Kai Shek, who is wife of General Chiang Kai Shek, leader of Nationalist China, tours the United States, goes all around the country and is hosted by President Roosevelt and Eleanor. She addresses both houses of Congress. They love her. And after her tour, FDR signs the repeal of the Exclusion Acts. And he says that the Exclusion Act was a historic mistake and signs this law repealing them.

Lee: There is a good news/bad news part of the repeal. On the one hand, it repeals this highly discriminatory law. It also allows for the first-time Chinese immigrants to become naturalized citizens. So, this is huge. The catch is that by that time the United States immigration laws are really based on these strict national origins quotas, and the quota for China is only 105 persons a year. So even though we've done away with the Exclusion Act, we're only allowing into the country 105 persons a year.

Cunningham: Starting in 1917, Congress passed an Immigration Act that would severely restrict immigration to America. President Woodrow Wilson vetoed it, but it was later signed into law by President Warren Harding — and then, in an even more restrictive form, by President Calvin Coolidge in 1924. The law established quotas for how many people were allowed visas to United States from each different country, and it was designed specifically to heavily favor entry of immigrants from the British Isles and to more or less make it impossible for anyone not from Western Europe to come to America.

In 1952, some of those restrictions loosened. The requirement that an immigrant be white in order to be naturalized was dissolved. And more, though still not many, Asians and eastern Europeans were allowed to emigrate to the United States. The U.S. government also started taking into account skill sets and family relationships when allocating visas (a practice it still does today). However, a quota system for immigrants from different nations still existed.

It would take until 1965, when President Lyndon Johnson signed the Immigration and Nationality Act, for America to finally eliminate race, national origin and ancestry as a basis for deciding who can come into this country.

Archival Lyndon B. Johnson tape: “Fellow countrymen, we have called the Congress here this afternoon …”

Cunningham: President Johnson signed the Immigration and Nationality Act into law outside. There are photos of that day. They’re grainy and the sky looks pastel blue. And he had these remarks:

Archival Lyndon B. Johnson tape: “It does repair a very deep and painful flaw in the fabric of American justice. It corrects a cruel and enduring wrong in the conduct of the American Nation.”

Lee: The 1965 Immigration Act is one of those landmark immigration laws that ends one era and begins another. So, this is part of the Civil Rights Movement. LBJ considers this law, in addition to the Civil Rights Act and the Voting Rights Act, part of his Great Society reforms — part of his administration's response to the Civil Rights Movement. It ends the decades-long system of discriminatory national origins quotas that had been put into place in 1924 and which had really closed the gates to all Asian immigration.

It also, however, has an exclusionary side of it that we don't often talk about. It places restriction on immigration from the Western Hemisphere for the first time. And it also affirms bans on homosexual immigrants that had been in place for decades as well. So, it is on the one hand part of our civil rights immigration legislation. By banning discrimination in immigration law, it ushers in the mass migration from Asia from Latin America from Africa that has transformed the United States in the past 50 years. However, by placing restrictions on the western hemisphere for the first time, it also initiates a massive rise in undocumented immigration.

Cunningham: And thus, new questions about immigration would persist in the decades to come. The United States would wrestle with the constitutionality of travel bans for particular groups of people, and with deportations, and how much to prioritize visas for certain skilled workers, and how to treat undocumented children who’ve been in America most of their lives. These questions don’t look all that different from ones that the framers wrestled with 230 years ago. They’re questions ultimately about loyalty and national security and assimilation that surface with each new wave of immigration.

And yet, there are moments — like Wong Kim Ark’s case — when at least some questions find resolution. Ever since his case, we have cemented into the Constitution a clearer and more expansive definition of what makes someone American. It carved a pathway to citizenship — through birthright — that over time would secure the “blessings of liberty” for immigrants’ children in America. Meaning that no matter what winds of prejudice or fear push against one generation, there would be some shelter for the next.

Immigration laws, however, still enormously shape the country’s composition in any given era. Just as the framers wrote, it is still Congress that gets to decide who can be a citizen if you’re not born here. That’s why this act that President Johnson signed into law in 1965 was a powerful turning point. As with Wong Kim Ark’s case, it marked an expansion of who “we the people” can be, and where “we the people” can be from.

Archival Lyndon B. Johnson tape: “ … From all countries of the globe. Thank you very much.”

Cunningham: Johnson signed that Immigration and Nationality Act at the foot of the Statue of Liberty, the New York skyline behind him on a not-too-distant shore. Far above him was her torch — raised 300 feet into the sky — and the chains of bondage broken at the base of her robe. And just inside the Statue of Liberty’s pedestal — near where Johnson was signing that bill — was a plaque, added there in 1903. It bears the words of Emma Lazarus’s poem, “The New Colossus.” The poem goes:

Not like the brazen giant of Greek fame,
With conquering limbs astride from land to land;
Here at our sea-washed, sunset gates shall stand
A mighty woman with a torch, whose flame
Is the imprisoned lightning, and her name
MOTHER OF EXILES. From her beacon-hand
Glows world-wide welcome; her mild eyes command
The air-bridged harbor that twin cities frame.
“Keep, ancient lands, your storied pomp!” cries she
With silent lips. “Give me your tired, your poor,
Your huddled masses yearning to breathe free,
The wretched refuse of your teeming shore.
Send these, the homeless, tempest-tost to me,
I lift my lamp beside the golden door!”

Cunningham: When Johnson signed that law, and ushered in our modern era of immigration policy in America, it was a clear October day. Waves deep blue and a bit choppy in the harbor. The poem, just inside the statue. The statue, silent and tall. And beyond the Statue of Liberty, the boats dotting the water bobbed and swayed, cutting through the shifting tides.


Cunningham: Many thanks to this week’s guests:

Erika Lee, a history professor at the University of Minnesota and director of the Immigration History Research Center. And Lucy Salyer, a history professor at the University of New Hampshire. Erika wrote the book “The Making of Asian America: A History” and Lucy wrote the book “Laws Harsh as Tigers: Chinese Immigrants and the Shaping of Modern Immigration Law.” Thanks also to their universities for studio use.

Fief and drum music is by Otha Turner and the Rising Star Fief and Drum Band. Special thanks to Sharde Thomas and the rest of the Turner family for its use.

Our theme music and additional compositions are by Ryan and Hays Holladay. The original artwork for our podcast is by Michelle Thompson. And Ted Muldoon is my producer here at The Washington Post for this podcast.

Bridget Reed Morawski contributed to creating this transcript.