Frederick Douglass once denounced the Supreme Court’s ruling in Dred Scott v. Sandford as constituting “an open, glaring, and scandalous tissue of lies.” For the massive violence it did to both the Constitution and to the principles upon which that charter is based, that opprobrium is richly deserved.
Forty-one years later, the Court issued a decision that deserves, but has largely avoided, the same kind of vituperation. In United States v. Wong Kim Ark, the Court maintained that the Constitution, particularly the 14th Amendment, incorporated the British common law doctrine of birthright citizenship, and that America’s Founding Fathers intended that this doctrine should prevail in America.
For quality of constitutional and historical reasoning, Wong Kim Ark is every bit as defective as Dred Scott. Yet while Dred Scott is universally condemned, Wong Kim Ark’s conclusions are generally accepted, even if few today are familiar with the case. The pernicious shadow of Wong Kim Ark continues to poison our law and policy regarding immigration.