Litigating Birthright Citizenship in the Shadow of World War II: The Continuing Relevance of a Forgotten Case

Rachel E. Rosenbloom September, 2026

With the question of birthright citizenship before the Supreme Court this term in Trump v. Barbara , this Article explores the last time that federal courts confronted an attempt to restrict birthright citizenship. It tells the story of two lawsuits, Regan v. King and Fisk v. Wade , filed in 1942 by organizations seeking to overturn United States v. Wong Kim Ark , the 1898 Supreme Court decision that affirmed the broad scope of birthright citizenship under the Fourteenth Amendment. While the cases left little mark doctrinally, their history sheds light on a dimension of birthright citizenship litigation that has received little prior attention: the degree to which restrictionist arguments, past and present, have relied on the statutory frameworks of their respective eras. The 1942 litigation, which represented the culmination of two decades of efforts by anti-Asian groups to strip Japanese Americans of citizenship, sought to tether judicial interpretation of the Fourteenth Amendment’s Citizenship Clause to the racial exclusions then embodied in the immigration and naturalization laws. While the restrictionist arguments being put forward today are quite different, they, too, are deeply dependent on a particular statutory framework – namely, the array of late-twentiethcentury legislative changes that have collectively produced the contemporary construction of immigrant illegality. This Article argues that if courts were to allow the interpretation of the Fourteenth Amendment’s Citizenship Clause be guided by the shifting configurations of exclusion embodied in U.S. immigration policy, they would be defeating one of the central aims of the Fourteenth Amendment: to place birthright citizenship beyond the reach of repeal by a subsequent Congress.

Introduction

With the Supreme Court poised to rule on the scope of birthright citizenship this term in Trump v. Barbara ,¹ this Article argues that we have much to learn from a close examination of the last time that a challenge to the scope of birthright citizenship wound its way through the federal courts. It tells the story of Regan v. King ² and Fisk v. Wade, ³ twin actions filed in 1942 that sought to compel two registrars of voters, in San Francisco and in Alameda County, to remove the names of Japanese Americans from the voter rolls. Although the cases were nominally about voting rights, the plaintiffs’ primary aim was to overturn United States v. Wong Kim Ark ,⁴ the Supreme Court decision that has governed the scope of birthright citizenship under the Fourteenth Amendment⁵ since 1898.

As attempts to overturn a Supreme Court precedent, the cases were abject failures. Fisk v. Wade evaporated within a matter of weeks, when the plaintiff agreed to a voluntary dismissal after an attempt to consolidate the two cases failed.⁶ Regan v. King progressed further through the judicial system but met with rejection at every level.⁷ In July 1942, the District Court dismissed the case under a straightforward application of Wong Kim Ark .⁸ The following February, the judges of the Court of Appeals for the Ninth Circuit were so certain that the case lacked merit that they announced their decision from the bench – affirming dismissal of the complaint – immediately following the following the plaintiff-appellant’s argument without even hearing an opposing argument.⁹ On May 17, 1943, a little over a year after the complaint was filed, the Supreme Court denied certiorari.¹⁰

It would be easy to write the cases off as curiosities. Fisk v. Wade has almost never been mentioned since, and although Regan v. King has been the subject of some scholarly attention,¹¹ it has played little role in commentary on the current assault on birthright citizenship. Despite their doctrinal insignificance, however, the cases are worth a closer look. Falling approximately at the midpoint between the Supreme Court’s 1898 decision in Wong Kim Ark and the emergence of the contemporary movement to restrict birthright citizenship, they provide a window into the evolution of debates about the Citizenship Clause over the course of the twentieth century, and an opportunity to view the current attempt to restrict birthright citizenship from a new angle.

Regan v. King and Fisk v. Wade were filed five months after the Japanese military’s attack on Pearl Harbor, at the height of wartime anti-Japanese sentiment. It would be a mistake, however, to see the cases as simply a manifestation of wartime hysteria. Anti-Asian groups in California had been trying for over two decades to deprive Japanese Americans of citizenship.¹² The groups behind the litigation thought that the wartime rise in anti-Japanese animus would provide a new opening for them. They were not wrong about the changing landscape: public opinion was more supportive of their efforts than ever before, and Earl Warren, then serving as attorney general of California, lent the effort support behind the scenes.¹³ However, the attempt ultimately failed, and the litigation was one of the last acts of a movement whose influence, once significant in California politics, was waning.

If the litigation can be seen as the last gasp of a particular chapter of American racial nativism, it also tells a story about the emergence of new configurations of legal advocacy in defense of birthright citizenship. Regan v. King attracted the attention of attorneys from the American Civil Liberties Union (ACLU), the National Lawyers Guild, the Japanese American Citizens League (JACL), and the National Association for the Advancement of Colored People (NAACP).¹⁴ The involvement of civil rights advocates illustrates the broad changes that were occurring at mid-century, both in the alignment of social movements and in the rhetoric of debates about citizenship. Their interventions through amicus curiae briefs marked the first time since the passage of the Fourteenth Amendment that debates over the Citizenship Clause ceased to revolve solely around the contested meanings of the Civil War and Reconstruction. World War II and the fight against Nazism provided a new paradigm for discussions of citizenship, race, and democracy.

This Article tells the story of the 1942 litigation, and then considers its contemporary relevance. Part I briefly reviews the Supreme Court’s interpretation of the Citizenship Clause in the decades following the ratification of the Fourteenth Amendment. Part II examines the lead-up to the filing of the complaints in Fisk v. Wade and Regan v. King , and the path that Regan v. King took through the District Court and Court of Appeals. It focuses in particular on the plaintiffs’ attempt to tether birthright citizenship to the racial exclusions then embodied in both the naturalization statute and the statutes governing the admission of foreign nationals to the United States.¹⁵ Part III argues that this aspect of the 1942 litigation – the extent to which restrictionists’ arguments relied on the statutory frameworks of racially restricted naturalization and Asian exclusion – can help us understand the current attack on birthright citizenship in a new way. Although the contemporary effort to restrict birthright citizenship presents entirely different legal arguments than those raised in 1942, it, too, relies heavily on statutory frameworks, seeking to tether birthright citizenship to an array of late-twentieth-century legislative changes that have collectively produced the contemporary construction of immigrant illegality.¹⁶ The boundaries that restrictionists sought to draw around birthright citizenship in 1942 would be difficult to articulate today, in light of the changes that have occurred in statutory law, while the boundaries that restrictionists seek to draw today would have made little sense to the restrictionists of the 1940s. Part III explores this dynamic, and argues that it offers yet another reason, beyond the doctrinal arguments that have already been identified, for courts to reject the interpretation of the Fourteenth Amendment that the Trump administration has advanced. If courts were to allow statutes enacted over the past few decades to shape the contours of birthright citizenship, they would be defeating one of the central aims of the Fourteenth Amendment: to place birthright citizenship beyond the reach of repeal by a subsequent Congress.¹⁷

Part I: The Citizenship Clause

The Fourteenth Amendment, ratified in 1868, declares that “[a]ll persons born . . . in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”¹⁸ These words radically reconfigured the relationship between race and citizenship in the United States. In the years leading up to the Civil War, policing the racial boundaries of citizenship formed a key component of the nation’s racial caste system. This caste system was expressed most notoriously in the Supreme Court’s 1857 decision in Dred Scott v. Sandford , in which the Court held that no American of African descent could be recognized as a citizen of the United States because the nation’s founders had intended to erect a “perpetual and impassable barrier . . . between the white race and the one which they had reduced to slavery.”¹⁹ Less than a decade after Dred Scott , following the Union victory in the Civil War, Radical Republicans in Congress overturned the decision, first through the passage of the Civil Rights Act of 1866,²⁰ which provided a statutory guarantee of birthright citizenship free from racial restrictions, and then a few months later through the inclusion of the Citizenship Clause in the proposed language of the Fourteenth Amendment.

In 1866, when Senator Jacob Howard introduced the language that would become the first sentence of the Fourteenth Amendment, he proclaimed that its purpose was to “settle[] the great question of citizenship and [to] remove[] all doubt as to what persons are or are not citizens of the United States.”²¹ Over the next few decades, however, the debates continued.²² Courts faced two questions about the language of the Citizenship Clause: who should be deemed to be born “subject to the jurisdiction” of the United States and who should be deemed to be born “in” the United States.²³

Two foundational cases interpreting the Citizenship Clause were decided in quick succession in the fall of 1884.²⁴ In September of that year, Supreme Court Justice Stephen Field, riding circuit in California, authored a decision on behalf of a unanimous panel of judges in In re Look Tin Sing .²⁵ The case concerned the citizenship of Look Tin Sing, a fourteen-year-old boy who was born in California to Chinese immigrant parents.²⁶ Look had left the United States at the age of nine to be educated in China. While he was gone, Congress enacted the Chinese Exclusion Act, barring the entry of Chinese laborers.²⁷ When Look returned to California in 1884, immigration inspectors barred him from entering, citing the Chinese Exclusion Act.²⁸ Writing for a unanimous panel, Justice Field parsed the meaning of the phrase “subject to the jurisdiction thereof” and found that the only recognized exceptions concerned the children of diplomats, “whose residence, by a fiction of public law, is regarded as part of their own country,” and those born on a public vessel of a foreign country within U.S. waters.²⁹ Field acknowledged that Look’s parents were racially barred from citizenship under the statute governing naturalization,³⁰ which restricted naturalization to “white person[s]” and to “aliens of African nativity and . . . persons of African descent.”³¹ However, Field concluded that this fact did not change the analysis. At the time of the adoption of the Fourteenth Amendment, Field pointed out, the naturalization laws excluded Black people born outside the United States from becoming citizens,³² but the framers of the Fourteenth Amendment showed no intention of excluding their children from citizenship.³³ By the same token, Field concluded, Look Tin Sing’s citizenship was not conditional on his parents’ eligibility for naturalization.³⁴

The next decision came just five weeks later, in a case that must have been on Justice Field’s mind when he wrote the decision in Look Tin Sing . In April 1884, shortly before Field had departed Washington for California, the Supreme Court had heard oral arguments in Elk v. Wilkins , a case concerning the citizenship of a man named John Elk who had severed his relationship with the Ho-Chunk (Winnebago) Nation and had taken up residence in Omaha, Nebraska.³⁵ Elk was denied the right to vote and challenged the denial, arguing that he was a citizen under the Fourteenth Amendment.³⁶ The case remained pending while the Court was in summer recess. When Field returned to Washington in the fall, five weeks after he authored the Look Tin Sing decision, he joined the majority in Elk v. Wilkins, holding that Elk, unlike Look, was not born a citizen of the United States. In a decision written by Justice Horace Gray, the Court held that those born into membership in Native nations were not born “subject to the jurisdiction” of the United States and were therefore not citizens under the Fourteenth Amendment.³⁷ The Court reasoned that “Indians born . . . members of, and owing immediate allegiance to, one of the Indiana tribes, (an alien though dependent power[]),” were not birthright citizens.³⁸ Although they were “in a geographical sense born in the United States,” they were

no more ‘born in the United States and subject to the jurisdiction thereof,’ within the meaning of the first section of the fourteenth amendment, than the children of subjects of any foreign government born within the domain of that government, or the children born within the United States, of ambassadors or other public ministers of foreign nations.³⁹

Together, the two cases drew a clear line. Children born into membership in sovereign Native nations were to be treated in the same way that children of subjects of any foreign government born within the domain of that government (for example, a child born in France to French parents) would be treated; the fact that Native nations were located within the borders of the United States did not change the analysis. Courts also recognized the children of diplomats and children born on a public vessel of a foreign country while within U.S. waters as not being born fully subject to the jurisdiction of the United States despite the physical location of their birth. But children such as Look, who did not fall under these exceptions, were birthright citizens under the Fourteenth Amendment – even if their own parents were barred from citizenship.

Elk was decided at a moment when federal policy toward Indigenous people was in flux. Soon after the decision, the federal government embarked on an aggressive campaign to promote U.S. citizenship, assimilation, and private land ownership among Indigenous people in ways calculated to break up Native land and bring about the end of Native sovereignty.⁴⁰ Over the decades that followed, many Indigenous people became U.S. citizens under the Dawes Act of 1888 and subsequent legislation.⁴¹ In 1924, Congress passed the Indian Citizenship Act, providing that “all non-citizen Indians born within the territorial limits of the United States be, and they are hereby, declared to be citizens of the United States . . . .”⁴² In light of these subsequent developments, the significance of Elk has been limited.

Look Tin Sing, on the other hand, set forth a rule that has remained in force to this day, now incorporated into Supreme Court precedent.⁴³ In the wake of the decision, federal courts began routinely granting claims where birth in the United States had been established.⁴⁴ John Wise, who oversaw the enforcement of the Chinese exclusion laws in San Francisco, reported to Attorney General Judson Harmon in 1895:

[F]or many years . . . it has been the established rule and uniform practice to permit the landing of those Chinese who have been born within the United States, and upon the sole ground that by reason of their birth they are native born citizens thereof, and as such are exempt from the provisions of the Exclusion Act . . . . [T]he cases in which such action has been taken during the past ten years are very numerous and are now of frequent occurrence.⁴⁵

Immigration inspectors often rejected citizenship claims on factual grounds, questioning the veracity of assertions of birth within the United States.⁴⁶ They made no headway, however, in narrowing the scope of birthright citizenship in the decade following Look Tin Sing . San Francisco attorney George Collins, who opposed recognizing the U.S.-born children of Chinese immigrants as birthright citizens, complained in 1895 that the “executive department of the general government has apparently acquiesced in Judge Field’s decision as a correct interpretation of the law.”⁴⁷

It would take fourteen years before the Supreme Court ruled directly on the question raised in Look Tin Sing , but in the interim, the Court appeared to signal its approval of the holding. In 1891, in Quock Ting v. United States , the Court heard an appeal in a case involving another teenager arriving from China who claimed to have been born in the United States. In denying the appeal, the Court focused only one question: “whether the evidence[] before the court below was sufficient to show that the petitioner was a citizen of the United States.”⁴⁸ As Justice David Brewer noted in his dissent, that evidence revolved around a “single question”: “whether the petitioner was born in this country or not.”⁴⁹ The following year, when the newly established Ninth Circuit Court of Appeals was confronted with a case involving a passenger arriving from China who claimed to have been born in the United States, the court did not even bother to cite a legal precedent when it referenced the principle that a person born in the United States to Chinese immigrant parents would be a citizen under the Fourteenth Amendment.⁵⁰

Collins’ complaint in 1895 about the executive branch’s inaction was part of an ongoing campaign to convince the Department of Justice to challenge the holding of Look Tin Sing .⁵¹ In the summer of 1895, at Collins’ instigation, President Grover Cleveland asked the Department of the Treasury (which oversaw immigration) to consider the matter.⁵² A plan to engineer a test case was soon in place . ⁵³ When a U.S.-born passenger named Wong Kim Ark arrived in San Francisco on the steamship Coptic on August 31, 1895, he was refused entry, despite the fact that his U.S. citizenship had been previously recognized.⁵⁴ Wong promptly filed a habeas corpus petition to challenge his exclusion.⁵⁵

The government’s gambit succeeded in propelling a test case into the courts, but it failed to overturn Look Tin Sing . In 1898, in United States v. Wong Kim Ark , the Supreme Court reached the same conclusion that Field had reached, holding that Wong was a birthright citizen.⁵⁶ The court noted that, before the Civil War, it was “beyond doubt that . . . all white persons, at least, born within the sovereignty of the United States, whether children of citizens or of foreigners, excepting only children of ambassadors or public ministers of a foreign government, were native-born citizens of the United States,”⁵⁷ and held that the Fourteenth Amendment extended that principle to all, “restricted only by place and jurisdiction, and not by color or race.”⁵⁸ The decision recognized as exceptions only “children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory . . . .” along with “the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes.”⁵⁹ The Court rejected the arguments put forth by the government (represented by Collins as well as by Solicitor-General Holmes Conrad) that sought to impose a rule of citizenship-by-descent derived from international law, rather than a rule of territorial birthright citizenship derived from the common law.⁶⁰

Soon after deciding Wong Kim Ark , the Supreme Court confronted the question of the case’s applicability to the territories in America’s expanding overseas empire. In 1901, in a case concerning duties on goods arriving from Puerto Rico, the Court suggested that the Citizenship Clause did not extend to “unincorporated” territories.⁶¹ Three years later, in Gonzales v. Williams, the Court held that Isabel Gonzales, a woman born in Puerto Rico, was not a foreign national and therefore could not be excluded upon her arrival in New York.⁶² The Court stopped short, however, of declaring that Gonzales was a citizen under the Fourteenth Amendment. These cases have generally been interpreted to leave residents of unincorporated U.S. territories in an in-between status as nationals, with many, but not all, of the rights of citizens.⁶³ Congress has since extended birthright citizenship to many U.S. territories by statute.⁶⁴

Litigation on the question of the applicability of the Citizenship Clause in U.S. territories has continued,⁶⁵ but Wong Kim Ark’ s holding with regard to those born in the continental United States has remained undisturbed. Applying Wong Kim Ark , federal courts have consistently recognized the citizenship of those born in the United States without regard to the status of their parents.⁶⁶ Congress has also codified this understanding of the Citizenship Clause, first in the Nationality Act of 1940 and again, in 1952, in the Immigration and Nationality Act.⁶⁷

Part II: Challenging Birthright Citizenship in the Shadow of World War II

Forty-four years after the Supreme Court decided Wong Kim Ark, two Federal District Court judges in San Francisco found themselves presiding over lawsuits arguing that the decision should be overturned. In the federal courthouse at the corner of Seventh and Mission Streets, approximately a mile and a half from the site of the former courthouse where Judge William Morrow had granted Wong Kim Ark’s habeas corpus petition,⁶⁸ Judge Adolphus St. Sure heard arguments in Regan v. King ,⁶⁹ while Judge Michael Roche considered the case of Fisk v. Wade .⁷⁰ Both actions were filed on the same day – May 7, 1942 – by the same attorney: Ulysses S. Webb, who had recently returned to private practice after serving as California’s attorney general for thirty-seven years.

The plaintiffs, John Regan and James Fisk, sued in their personal capacities, but both were leaders of organizations with long histories of anti- Asian advocacy. Regan was Grand Secretary of the Native Sons of the Golden West, ⁷¹ and Fisk led the California state affiliate of the American Legion.⁷² Both Regan and Fisk, along with Webb, were core members of the California Joint Immigration Committee, a coalition that was at the center of anti-Asian organizing in California.⁷³ Each complaint named a registrar of voters as the defendant: Regan brought suit against Cameron King, registrar for the City and County of San Francisco, while Fisk brought suit against G.E. Wade, registrar for Alameda County. ⁷⁴ Each sought a court order directing that Japanese Americans be removed from the voting rolls.⁷⁵ At the center of each complaint was the argument that the U.S.-born children of Asian immigrants were not citizens under the Fourteenth Amendment.⁷⁶ The complaints contended that “Japanese of the full blood born in the United States . . . of alien parents born in the Empire of Japan were at birth citizens . . . of the Empire of Japan, owing allegiance to that government,” were “subject to the jurisdiction of the United States of America in the same manner and to the same extent as all other aliens, but not otherwise,” and were “ineligible to citizenship in the United States of America[.]”⁷⁷

A. The Early Roots of the Litigation

The complaints in Fisk v. Wade and Regan v. King were filed five months after the Japanese military attacked the U.S. naval base at Pearl Harbor, and the cases played out against the backdrop of the wartime incarceration of over 120,000 people of Japanese ancestry, approximately two-thirds of whom were U.S. citizens.⁷⁸ In June 1942, when Webb argued Regan v. King before the District Court, all of the voters whose rights were at issue in the suit were being held by military authorities, most of them at the Tanforan Assembly Center in nearby San Bruno.⁷⁹ Almost all of them would be sent to the Central Utah Relocation Center, also known as Topaz.⁸⁰

It would be a mistake, however, to see the cases as simply one more manifestation of wartime hysteria. They also represented the resurrection of an earlier effort by anti-Japanese groups in California to strip Japanese Americans of citizenship. The initial phase of that effort had begun in 1919 in the wake of another lawsuit initiated by Webb (who was then the state attorney general): People v. Harada. ⁸¹ Webb had brought the Harada action as a test case aimed at expanding racial restrictions on property ownership to encompass the U.S.-born children of Asian immigrants. The case concerned the reach of the California Alien Land Law, a statute drafted by Webb and enacted by the California state legislature in 1913.⁸² It barred noncitizens from owning property if they were not “eligible to citizenship.”⁸³

That phrase – “eligible to citizenship” – functioned as a kind of code in the early twentieth century.⁸⁴ Leveraging the racial bar contained in the naturalization statute, it provided an ostensibly race-neutral cover for what was universally understood to be a racial bar. The Alien Land Law was aimed in particular at barring land ownership by Japanese immigrants, who had begun arriving in California in higher numbers at the turn of the century and had become the primary target of racial nativism on the Pacific Coast.⁸⁵

Those targeted by the Alien Land Law found several ways to circumvent it; one was by purchasing land in the name of their U.S.-born (Nisei) children. This was the strategy pursued by Jukichi and Ken Harada, who bought property in 1915 in Riverside, California, in the name of their three youngest children, nine-year-old Mine, five-year-old Sume, and three-year-old Yoshizo.⁸⁶ Webb’s office brought suit to confiscate the Haradas’ property, taking the position that any attempt to use U.S.-born children to avoid the restrictions in the Alien Land Law made the ownership invalid.⁸⁷ In April 1919, a Superior Court judge in Riverside County ruled in the Haradas’ favor, holding that the purchase of the property in the name of the Harada children was lawful and that “[t]he political rights of American citizens are the same, no matter what their parentage.”⁸⁸

The state’s defeat in Harada led Webb and other opponents of Japanese immigration to attempt to strengthen the language of the Alien Land Law.⁸⁹ It also led them to call for stripping Asian Americans of birthright citizenship, a campaign that they pursued through a series of proposed constitutional amendments. In a speech to the Sacramento Chamber of Commerce on August 24, 1919, newspaper publisher and prominent exclusionist V.S. McClatchy warned that “[t]he white race is helpless against the economic competition and high birth rate and unassimilable character of the Japanese.”⁹⁰ McClatchy proposed a set of actions to preserve white dominance in the United States, including amending the Citizenship Clause to provide “that no child born in the United States of foreign parents shall be considered an American citizen unless both parents are of a race that is eligible to citizenship.”⁹¹ In doing so, McClatchy was taking the strategy that had been used in the California Alien Land Law – leveraging the racial exclusions of the naturalization statute as a basis for racially discriminatory state laws – and proposing to apply it to the Fourteenth Amendment itself.

A week later, McClatchy and others met in Sacramento and founded the Japanese Exclusion League, described by one of its founders as being dedicated to “keep[ing] California as a white man’s country.”⁹² The League adopted a program that followed the goals McClatchy had outlined in his article and included the passage of a constitutional amendment excluding children of Asian descent from birthright citizenship.⁹³ The platform soon garnered endorsements from a variety of organizations and the California state legislature,⁹⁴ and by the end of the year, Senator Wesley Jones of Washington introduced an amendment in the Senate along the lines McClatchy had suggested. The amendment would have altered the first sentence of the Fourteenth Amendment to provide that “[n]o child hereafter born in the United States of foreign parentage shall be eligible to citizenship in the United States unless both parents are eligible to become citizens of the United States.”⁹⁵ Representative John Raker of California introduced a parallel resolution in the House.⁹⁶ The following month, Senator James Phelan of California proposed his own amendment. Dispensing with euphemisms, Phelan sought to change the first sentence of the Fourteenth Amendment to grant citizenship to “[a]ll persons born in the United States and subject to the jurisdiction thereof whose parents are white persons, Africans, American Indians, or their descendants.”⁹⁷

When these various proposals failed to make it out of committee, further attempts (equally unsuccessful) followed in 1921.⁹⁸ In April of that year, members of Congress from eleven Western states met to discuss plans to build support for a constitutional amendment, as well as to strengthen the alien land laws and seek a federal exclusion act.⁹⁹ The leadership of the campaign remained in northern California, centered around Webb and McClatchy, along with Phelan, who was at the time campaigning for reelection under the slogan “Keep California White.”¹⁰⁰

The League temporarily halted its campaign for a constitutional amendment in 1923 in order to focus on securing a federal law excluding Japanese immigrants from the United States. After it achieved that goal with the passage of the Johnson-Reed Act of 1924,¹⁰¹ it held off on returning to the constitutional amendment in favor of other priorities.¹⁰² Now operating as the California Joint Immigration Committee (CJIC)¹⁰³ – a group comprised of Webb, McClatchy, Phelan, and representatives of five statewide groups¹⁰⁴ – the organization pivoted to a variety of other issues.¹⁰⁵ To keep the question of birthright citizenship in play, the CJIC developed a campaign to prohibit dual citizenship.¹⁰⁶ Its pamphlets accused Nisei of having divided loyalties and emphasized the fact that Japanese citizenship law, until 1924, provided automatic Japanese citizenship for a child born abroad to a Japanese father.¹⁰⁷

The prominence of the CJIC declined after McClatchy’s death in 1938,¹⁰⁸ but in the wake of the U.S. declaration of war on Japan in 1941, the members of the CJIC sensed an opportunity to regain the organization’s momentum. At their first meeting after Pearl Harbor, one member remarked that “the Committee has received more active support and more general support in the last month than it has received in the last thirty years of its existence.”¹⁰⁹ Another encouraged the group to take action, commenting, “This is our time to get things done that we have been trying to get done for a quarter of a century.”¹¹⁰

B. Birthright Citizenship, Earl Warren, and the Wartime Incarceration of Japanese Americans

The CJIC met on February 7, 1942, two months after Pearl Harbor and shortly before the issuance of the executive order that would pave the way for the forced relocation and incarceration of Japanese Americans. The meeting began with a discussion about resuming the organization’s efforts to strip birthright citizenship from dual citizens. Webb, who served informally as in-house counsel for the organization, discouraged this proposal, warning that “[t]he deprivation of a constitutional citizenship is not an easy matter.”¹¹¹ That prompted others to propose that the Committee pursue a constitutional amendment to strip dual nationals of their U.S. citizenship.¹¹² Webb, however, had other ideas: he argued that the organization should ignore citizenship and instead seek the immediate removal of anyone of Japanese ancestry from all coastal areas. “It isn’t a question of place of birth,” he argued. “[I]t is a racial question whether they are Japanese or not.”¹¹³

By that point, Earl Warren had walked into the meeting. Warren had succeeded Webb as attorney general in 1938. He would soon be elected governor of California, and in 1953 he would become Chief Justice of the U.S. Supreme Court. In February 1942, he was already cultivating a national reputation. Unlike Webb, who loudly espoused racist views throughout his time in office, Warren gave speeches urging racial tolerance.¹¹⁴ In his prior position as District Attorney of Alameda County, he had gone after the Ku Klux Klan.¹¹⁵ He was, however, also a longtime member of his local chapter of the Native Sons of the Golden West, one of the groups most actively involved in the Japanese exclusion movement.¹¹⁶ He had been profoundly shaped by mentors such as Senator Hiram Johnson and other California progressives who were, as legal scholar Sumi Cho has put it, “as decidedly anti-Asian as they were anti-monopoly.”¹¹⁷

Warren had a complicated relationship with the CJIC. In 1938, a few days before he was sworn in as attorney general, he had attended a meeting at which the Committee voted to invite him to membership in his official capacity as attorney general, with Webb remaining on in a personal capacity.¹¹⁸ After receiving an explanation of the Committee’s work from Webb, Warren accepted the offer. Warren could not have been under any illusion about what he was getting into – the Committee’s positions were well known. Any conceivable ambiguity would have been cleared up three weeks later, when Warren received a handwritten welcome note from Charles Goethe, a wealthy eugenicist who was a member of the CJIC. Goethe sent the note from the Halukelani Bungalows by the beach in Waikiki. “It is good to feel you are carrying on General Webb’s contribution,” Goethe wrote to Warren, telling him that as the new attorney general, he was now “the key man” in the work of the Committee.¹¹⁹ Noting that forty-eight percent of the population of Hawai’i was of Japanese descent (a frequent preoccupation of the CJIC), Goethe told Warren that “[o]ne only holds permanently what one holds racially,” underlining the word “racially” three times. “After all, the racial instinct is deep-seated. Therefore you will be doing the immensely popular as well as the statesmen like thing in continuing General Webb’s work.”¹²⁰ Warren responded that he appreciated Goethe’s “expression of good will and also the interest in the work of the Joint Immigration Committee.”¹²¹

Warren’s name was added to the group’s letterhead, but he did not attend the next meeting, and at the meeting after that, he announced that he was resigning his membership and would continue only in an advisory capacity.¹²² The Committee accordingly moved him off the letterhead, but informed him that he would continue to receive copies of all documents and notices.¹²³ Warren thanked the Committee for understanding “that it would be better for all concerned” if he stepped down, and emphasized that he remained “interested in the Alien Land Law and other matters to which your Committee directs its attention and . . . shall be willing to consult with [the Committee] at anytime on these and kindred matters.”¹²⁴ Thus, he was present at the February 1942 meeting not as a member, but as one of several invited guests.

In early 1942, Warren was emerging as one of the most influential voices supporting the incarceration of Japanese Americans.¹²⁵ He spent the months after Pearl Harbor heavily engaged in discussions with local, state, and federal law enforcement and military officials about alleged (but never substantiated) patterns of Japanese landholding near sensitive locations such as airports, railroad tracks, and military installations.¹²⁶ He also initiated a project to map property ownership, and revived enforcement of the Alien Land Law.¹²⁷ The mapping project, although methodologically flawed,¹²⁸ was influential in swaying public opinion nationwide, leading figures like Walter Lippmann – the nation’s most renowned newspaper columnist at the time – to call for mass evacuation.¹²⁹

At the February meeting, Warren concurred with Webb, urging those gathered to pursue a strategy based on race, rather than legal status. He argued that a focus on dual citizens could have negative consequences for Americans of German and Italian descent, whom he described as “born to the soil” and “of the same race.” (“[T]hey are blended in entirely,” he argued. “It is an entirely different situation.”)¹³⁰ He also urged the members of the Committee to stop thinking in terms of political and legislative strategies, which would not yield results quickly enough:

We have to recognize . . . that native-born Japanese . . . have certain rights the same as you and I have them so long as the United States Government recognizes their citizenship to be the same as ours. With that we cannot interfere until Congress either makes some different approach to it or until our Constitution is changed. Those things take time.¹³¹

Warren urged the Committee to push instead for a military solution. The military, he argued, had the authority to evacuate anyone, regardless of citizenship:

I can’t see any way that [the forced relocation of U.S. citizens] can be done in a civil way. There is no way that our courts could permit it to be done, but the Army that is charged with the security of this combat zone has the right to do it. It has the right to tell me to get back 200 miles if it wants to do it, and as a good American citizen I have no right to complain. Now, if a good American citizen cannot complain, I don’t see why the Japanese should complain.¹³²

Warren intimated that the military authorities would “not be averse to having pressure applied in order to show the rest of the country just what their danger is here.”¹³³ (As many accounts have shown, and as Warren undoubtedly knew at the time, federal officials were, in fact, quite divided on the question of what actions could be taken against U.S. citizens; political pressure mobilized by Warren and others was influential in swaying them toward incarceration.)¹³⁴ Following Warren’s intervention, the Committee resolved to focus its immediate efforts on a mass evacuation policy that made no distinctions along lines of citizenship status, and also to continue working on the issue of dual citizenship over the long term.¹³⁵ Following the meeting, the group issued a public statement urging federal authorities to declare the Pacific coastal region a combat area and to ensure that the “Japanese, including Japanese citizens of the United States . . . be removed as quickly as possible from said zone.”¹³⁶

C. The Decision to Litigate

Webb and others had previously sought to amend the Citizenship Clause, but they had never contemplated a legal challenge to Wong Kim Ark , and the idea was not mentioned at the February meeting. By April, however, the Committee arrived at a plan to bring a lawsuit to do precisely that.¹³⁷ The decision to file the complaints in Regan v. King and Fisk v. Wade was a direct response to calls within Congress for the Supreme Court to overturn Wong Kim Ark .¹³⁸ Those calls occurred soon after the CJIC’s February meeting.¹³⁹ They were a response to the airing of significant doubts within the Roosevelt administration regarding the legality of incarcerating Japanese Americans based solely on their ethnicity.¹⁴⁰

In the immediate aftermath of Pearl Harbor, federal authorities had begun arresting Japanese immigrants (Issei) , along with smaller numbers of Germans and Italians, as alleged threats to national security. By mid- February, the government had detained 879 Issei in Hawai’i and over two thousand Issei on the mainland (almost ten percent of the adult males within Japanese immigrant communities in Pacific Coast states).¹⁴¹ When such arrests began, federal officials did not give serious consideration to taking mass action against U.S. citizens of Japanese descent. On December 26th, when Lieutenant General John DeWitt, Commander of the Western Defense Command, was informed that the Los Angeles Chamber of Commerce was urging that all residents of the city of Japanese descent, citizen and noncitizen, be evacuated, he dismissed the idea, saying, “An American citizen, after all, is an American citizen.”¹⁴² By the end of January, however, DeWitt’s position would change, influenced heavily by meetings with California elected officials.¹⁴³

Even as DeWitt’s position was shifting, attorneys within the Department of Justice, including Attorney General Francis Biddle, remained staunchly opposed to evacuating Nisei, engaging in tense discussions with staff within the War Department.¹⁴⁴ When California Congressman Leland Ford wrote to Cabinet members demanding that all ethnic Japanese be placed in inland concentration camps,¹⁴⁵ Biddle wrote back, “Unless the writ of habeas corpus is suspended, I do not know of any way in which Japanese born in this country and therefore American citizens could be interned.”¹⁴⁶ In a memorandum to the president, Biddle used even stronger words: “American born Japanese, being citizens, cannot be apprehended or treated like alien enemies.”¹⁴⁷ On February 1st, Biddle proposed sending out a joint press release on behalf of the Department of Justice and the War Department, stating that the departments were “in agreement that the present military situation does not at this time require the removal of American citizens of Japanese race.”¹⁴⁸

The press release was not distributed, however, due to division within the military. Although Secretary of War Henry Stimson still had reservations, DeWitt and others now supported mass evacuation.¹⁴⁹ DeWitt sent a memo on February 14th recommending the evacuation and incarceration of all those of Japanese descent along the entire West Coast.¹⁵⁰ The memo, written for DeWitt by Col. Karl R. Bendetsen, an attorney who worked in the Provost Marshal General’s office, stated that “the Japanese race is an enemy race and while many second and third generation Japanese born on United States soil, possessed of United States citizenship, have become ‘Americanized,’ the racial strains are undiluted.”¹⁵¹ The day before the memo was finalized, Walter Lippmann’s highly influential opinion piece appeared in newspapers nationwide under the headline “The Fifth Column on the Coast.”¹⁵² In the days immediately following, both Stimson and Biddle dropped their opposition.¹⁵³ On February 19th, President Roosevelt issued Executive Order 9066, authorizing the Secretary of War to designate military areas and to exclude people from such areas at his discretion, and over the following months, a series of military orders directed thousands of Japanese Americans, along with Japanese immigrants, to report for “relocation.”¹⁵⁴

When questions about the legality of rounding up U.S. citizens of Japanese descent surfaced within the administration, a few voices in Congress began calling to overturn Wong Kim Ark . Congressman John Rankin, a staunch segregationist from Mississippi, gave a speech in the House of Representatives on February 18th, in which he proclaimed that the conflict with Japan was a “race war” and called for “get[ting] rid of every Japanese whether in Hawaii or on the mainland. . . . Damn them! Let us get rid of them now.”¹⁵⁵ He followed up with more detailed remarks on February 23rd, delivering a speech entitled “Concentration Camps for Japanese.”¹⁵⁶ In the speech, Rankin acknowledged that “[i]t is being argued in some quarters that we do not have the constitutional right to handle the Japanese who are born in this country,” and that some were taking “the position that these Japanese are American citizens and entitled to the same rights as are the descendants of the signers of the Declaration of Independence.”¹⁵⁷ He emphatically disputed that contention, proclaiming, “These Japanese are not citizens of the United States and never can be.”¹⁵⁸ Rankin acknowledged that “a different position was once taken by the Supreme Court” and then quoted at length from the Wong Kim Ark dissent.¹⁵⁹

Another Southern Democrat, Senator Tom Stewart of Tennessee, presented similar arguments in the Senate. On the same day that President Roosevelt issued Executive Order 9066, Stewart introduced a bill directing the Secretary of War to “provide for taking into custody certain persons who are citizens or subjects of, or owe allegiance to, any nation or country with which the United States is at war.”¹⁶⁰ The legislation may have been worded broadly, but its aim was racially specific. When Stewart spoke of the bill a few days later on the floor of the Senate, he described it as a bill to take into custody “any person who is considered by the laws of any foreign power with whom we are at war to be a citizen of such nation and is of a race or nationality ineligible to naturalization in the United States.”¹⁶¹ (By June, Stewart would be describing the bill as authorizing the detention of “all Japanese in America and in the island possessions of America, regardless of whether or not they were American born.”¹⁶²) Speaking on the Senate floor on February 26th, Stewart acknowledged that the bill was “directed at the Japanese” and noted that it “raises directly the question of its constitutionality under the fourteenth amendment of the Constitution and, specifically, the first clause thereof . . .”¹⁶³ Stewart then quoted extensively from the dissent in Wong Kim Ark and stated that he was “calling attention to this Wong Kim Ark case because it ought to be reversed or overruled.”¹⁶⁴

Stewart’s call to overturn Wong Kim Ark generated significant media coverage,¹⁶⁵ and on March 15th, he followed up with an announcement that he had invited the governors of six states – California, Washington, Oregon, Arizona, Nevada, and Texas – to Washington D.C. to testify in support of his bill.¹⁶⁶ He acknowledged that there was “some doubt now as to authority of the War, Justice and other departments to arrest and intern [Japanese Americans]” and promised that his bill would remedy this uncertainty.¹⁶⁷ The governor of New Mexico, although not among the governors invited by Stewart, also voiced support for challenging the validity of Wong Kim Ark ,¹⁶⁸ and New Mexico Supreme Court Justice A.L. Zinn went on a round of speaking engagements calling for Wong Kim Ark to be overturned.¹⁶⁹

Anti-Asian groups in California were paying careful attention to these developments. Grizzly Bear , a monthly magazine published by the Native Sons of the Golden West, reproduced both Stewart’s and Rankin’s speeches in full.¹⁷⁰ Stewart’s speech, including its call for a lawsuit to overturn Wong Kim Ark , appeared in the April issue, along with a note from the editor remarking pointedly that the speech was being “directed to the attention of the attorney-general and the several district attorneys of California.”¹⁷¹ The editor’s note made it clear that the land ownership issues that had animated earlier attempts to restrict birthright citizenship were still at play. It argued that if the children of Japanese immigrants were not citizens under the Fourteenth Amendment, it would “be less difficult to recover from [them] all the land, rural and urban, they have obtained through violation or evasion of the California Alien Land Law. Let’s have action, NOW.”¹⁷²

On April 27th, on the heels of the publication of Stewart’s speech, the CJIC approved a resolution to bring an action in federal court to “determine whether native born Japanese are citizens.”¹⁷³ Ten days later, Webb filed the complaints in Regan v. King and Fisk v. Wade . Soon afterward, Webb served as the keynote speaker at a convention of the Native Sons, where the assembled members approved the creation of a committee to raise money “to prosecute, and carry through to the Supreme Court of the United States, if necessary, a suit challenging the United States citizenship of the Japanese” and “to draft and sponsor an amendment to the Constitution of the United States which shall have as its object the exclusion of all persons of Japanese ancestry from American citizenship.”¹⁷⁴ Warren also addressed the gathering, telling the crowd that he “strongly favored prosecution of the suits.”¹⁷⁵ This is the only documented instance of Warren expressing his support; as historian Greg Robinson has observed, “A fair conclusion is that Warren, who had announced in April his candidacy for governor . . . made a single hedged statement supporting the suit as a necessary profession of faith to retain the political support of the Native Sons, long his chief backers.”¹⁷⁶

Although the lawsuits were directed at denying Japanese Americans the right to vote, there is no indication that Webb or any of the others involved in the lawsuits were particularly focused on electoral issues at that moment. Rather, an attack on voting rights provided a convenient vehicle for challenging Wong Kim Ark . Emboldened by wartime anti-Japanese hysteria, the CJIC members’ first instinct had been to renew their attack on dual citizenship. On the advice of Warren, they shifted gears to focus on a military strategy that would be directed at people of Japanese descent without regard to citizenship status. When doubts arose about the legality of subjecting Japanese Americans to such actions, they decided to bring a suit to challenge Wong Kim Ark .

Anti-Asian organizations in California had returned to the question of the Citizenship Clause for several reasons. First, they understood that birthright citizenship once again posed an obstacle (or at least, a potential obstacle) that required dismantling. Just as birthright citizenship had blunted the effects of the Alien Land Law, it now threatened to block plans for relocation and incarceration. Second, they remained focused on the goal that had originally led them to seek a constitutional amendment years before: depriving Japanese immigrants and their U.S.-born children of land ownership.¹⁷⁷ Although the constitutional amendments that they had proposed in the 1920s had failed to make it out of committee, they believed that the right moment had finally arrived to achieve their goal through litigation. As Webb would note in his argument before Judge St. Sure in June, “[T]he attitude of the Federal Government toward the Japanese Government up to recently was not very favorable, but on the 7th of December, last, I concluded that it was about time that this question should be submitted to the courts of this country.”¹⁷⁸ Third, they understood the value of keeping the matter in the public eye, even if their argument did not prevail. At the February 7th meeting, while discussing the possibility of pursuing a constitutional amendment that would bar dual citizenship, Charles Goethe acknowledged that it would be “a tremendous fight to amend the Constitution.”¹⁷⁹ He argued, however, that even an unsuccessful attempt would be valuable:

If we should make a fight of this kind, even though we never win it . . . the very fact that we keep after that month after month and year after year, and we can do it with a very small amount of funds, we would educate the people of the United States to the whole problem of dual citizenship.¹⁸⁰

Goethe understood that the ultimate goal was to get the message out to a broader audience: “If we can go ahead and hammer at this thing week after week and day after day, we will change the attitude of what is practically the whole of the United States except the northern end of California.”¹⁸¹ The lawsuits, however far-fetched they may have been in their legal arguments, provided a vehicle for “hammer[ing] away” at the legitimacy of Japanese American citizenship. On the day that the complaint was filed, Fisk wrote to a fellow member of the CJIC: “Today, I signed as plaintiff, the legal papers prepared by the General [Webb] – so now we may expect fireworks.”¹⁸²

Fisk and his collaborators were correct in sensing that the war had created a more receptive audience for their agenda. The ideas that they had been putting forward for decades – that Japanese Americans had divided loyalties and represented a racial threat to the United States – had never been more widely shared. The following year, in Hirabayashi v. United States ¹⁸³ and Yasui v. United States ,¹⁸⁴ the Supreme Court would uphold the imposition of curfews on Japanese Americans. In Korematsu v. United States ,¹⁸⁵ the Court would uphold the orders excluding Japanese Americans from coastal areas, deferring to the military and declining to find that singling out Americans of Japanese ancestry violated the Constitution. A public opinion poll taken in December 1942, while Regan v. King was being litigated, found that a majority of Americans thought that all of the Japanese Americans being held in internment camps should be “sent back” to Japan.¹⁸⁶ Although federal law prohibited renunciation of citizenship during wartime, Congress amended the relevant statute in 1944 to permit such renunciations.¹⁸⁷ During a three-month period beginning in late 1944, one out of every fourteen U.S. citizens of Japanese descent – 5589 people in all – renounced their U.S. citizenship, many under coercive conditions.¹⁸⁸

D. Litigation Before the District Court

At a hearing in June 1942, Webb urged Judge St. Sure to reject the Supreme Court’s holding in Wong Kim Ark and to adopt the position of the dissenting justices. This was not, however, simply a rehashing of the position that the Department of Justice took in the 1890s. Webb’s new strategy was clear right from the start, when he defined the issue before the court as one of seeking to restrict people based on race, and race alone: “Is a member of the Japanese race, born in the United States, a citizen of the United States?”¹⁸⁹

In Wong Kim Ark , the government had presented a much broader question to the Supreme Court: “[W]hether a person born within the United States of parents the subjects of a foreign power is a citizen of the United States.”¹⁹⁰ Wong’s attorneys had stated the question in similarly broad terms: “Are the children born in this country of alien residents not connected with the diplomatic service citizens of the United States?”¹⁹¹ Arguing within this framework, the attorneys representing the government had sought to convince the Supreme Court that the Fourteenth Amendment, despite its apparent focus on territorial birth, embodied a rule of international law that recognized only descent, not place of birth, as the basis for citizenship at birth.¹⁹² Wong Kim Ark’s attorneys, in turn, pointed out to the Court that such a rule would affect not only the children of Chinese immigrants but also the children of European immigrants. ¹⁹³ The government had been confident that a victory in the case would not pose an obstacle to citizenship for children of European immigrants, because they could easily naturalize.¹⁹⁴ Nevertheless, the argument of Wong Kim Ark’s attorneys appeared to resonate with the Court; the majority opinion noted that the government’s reading of the Citizenship Clause would “deny citizenship to thousands of persons of English, Scotch, Irish, German, or other European parentage, who have always been considered and treated as citizens of the United States.”¹⁹⁵

In 1942, Webb offered Judge St. Sure a way to strip Asian Americans of citizenship without harming the children of white immigrants. Rather than grounding his argument in a descent-based principle of citizenship drawn from international law, he grounded it in the history of American racism and its ongoing legal architecture. Webb proposed drawing the same line that he and his collaborators had pitched to Congress as a constitutional amendment two decades earlier: basing a child’s citizenship on the parents’ racial eligibility to naturalize.¹⁹⁶

Webb began by mapping the racial dimensions of his project. Although the complaint had framed the question presented as one about the children of Japanese immigrants, he quickly clarified that his argument reached more broadly:

I might add, so that it will not appear I am presenting this thing narrowly, that that question, incidentally, involves races other than the Japanese. In short, that question, as we conceive it to be, involves the citizenship, the right to citizenship of all peoples and all races who do not fall under the characterization or description of white people.¹⁹⁷

Anticipating the inevitable next question, he then clarified further:

I might mention, by way of explanation here, when I speak of “white,” I am quite aware that the court has in mind the fact that as a result of the Civil War the gates were opened to the Negro, and the Negroes were included under the Fourteenth Amendment of the Federal Constitution, and also expressly covered by the Fifteenth Amendment to the Federal Constitution, and by the Naturalization Law, as amended in 1870.¹⁹⁸

How could Webb convince the court to adopt a rule of “white” citizenship that would not exclude Black people? By tying it to the naturalization statute. Acknowledging that the Fourteenth Amendment “brings, of course, into citizenship the colored race, for they were born in this country, and wholly subject to the jurisdiction of the United States,” he then argued that “their status is in nowise involved or concerned” because the Fourteenth Amendment, in his view, “citizenized [sic] all persons born in the United States of parents who were eligible to citizenship.”¹⁹⁹

Webb then attempted an inversion of the strategy that Wong Kim Ark’s attorneys had used. They had argued that the government’s proposed rule would harm the children of all immigrants, hoping to capitalize on the Court’s hesitance to harm white immigrants. Webb sought to harness racial bias in the opposite direction: by persuading Judge St. Sure that if he followed the rule set forth in Wong Kim Ark , he would be leaving the door open not just to the children of Japanese immigrants but to millions of racialized others. Webb offered the court an alternative construction of the Fourteenth Amendment that “would exclude from its operation all colored races, all colored persons except the Negro . . . .”²⁰⁰ This construction, Webb promised,

excludes three-fifths of the world’s population; it excludes the Hindus, the Chinese, the Japanese, the Hottentots, and the inhabitants of the islands of the Pacific, while the construction which gives citizenship to the Japanese, includes all the peoples of the world who chance to be born within the territory of the United States.²⁰¹

Descending even further into racist tropes, Webb warned that the Wong Kim Ark decision “extends citizenship automatically to all people of the world, and possibly if the Darwin theory of human origin be correct it might include the chimpanze [sic], of Africa, if it cared to be one of our citizens.”²⁰²

Webb’s vision was an unabashed expression of white nationalism, and he had no trouble grounding it in then-current U.S. statutes and case law. He walked Judge St. Sure through the various times that Congress had enacted statutes that restricted naturalization to white immigrants and later, in 1870, to white and Black immigrants.²⁰³ He cited the Supreme Court’s decisions in Ozawa v. United States ²⁰⁴ and United States v. Thind ,²⁰⁵ in which the Court held, respectively, that Japanese and Indian immigrants were racially ineligible for naturalization. He then quoted a passage from Thind that linked the racial bar on naturalization to the exclusion of Asian immigrants in the Immigration Act of 1917: “[I]t is not likely that Congress would be willing to accept as citizens a class of persons whom it rejects as immigrants.”²⁰⁶ The implication of Webb’s argument was clear: why should that principle, which had already found favor at the Supreme Court, apply only to naturalization and not to birthright citizenship as well?

Webb also quoted liberally from the Wong Kim Ark dissent, including the dissent’s statement that

[t]he true bond which connects the child with the body politic is not the matter of an inanimate piece of land, but the moral relations of his parentage. The place of birth produces no change in the rule that children follow the condition of their fathers, for it is not naturally the place of birth that gives rights, but extraction.²⁰⁷

The government had argued in Wong Kim Ark that this principle should be applied to all children whose parents were not U.S. citizens. Webb’s innovation was to shift the status in question from citizenship itself to the racially coded question of eligibility for citizenship.

The final element of Webb’s argument sounded as if it were lifted from the Dred Scott decision: “This country, your Honor, was settled by the white race.”²⁰⁸ In his view, the nation’s white founders “had no contact with any other people, they had no thought of any other people; they were not seeking to build a new world and government for any people other than the white people, their own kind.”²⁰⁹ He then provided his own gloss on the preamble to the Constitution:

“We, the People of the United States” – it is the same white [sic] that I have been talking about, these same Caucasians, if your Honor please – “in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.”²¹⁰

Webb appealed to Judge St. Sure to interpret the Citizenship Clause in line with this vision of white nationhood. He suggested that the “admission to this country of Caucasians from any country” might be in line with the goals expressed in the preamble, but claimed that “it requires no proof to show that the admission of Japanese to citizenship does not comply and conform to the purposes to be achieved by that instrument.”²¹¹ “Already, in a frantic effort to provide for the country’s defense, we have incurred obligations in excess of two hundred million dollars to segregate them from our citizens fighting upon land and upon sea, to prevent their fighting us behind the line,” Webb argued.²¹² “Does any human being imagine for a moment that the admission of these people to this country in the activities, not only our commercial activities, but military activities, can promote the general welfare?”²¹³

In sharp contrast to Webb’s rambling argument, the response from Chief Deputy City Attorney Walter Dold was brief and to the point. Dold uttered only six sentences. Noting that Webb’s argument “has come a little too late,” he pointed out that there were two Supreme Court cases directly on point. “I would like to cite them to the Court,” he continued, “and that is all there is to it, as far as we are concerned.”²¹⁴ One of the cases was, of course, Wong Kim Ark . The other was Morrison v. California , a 1934 case concerning an appeal of a criminal conviction for conspiracy to violate the California Alien Land Law, in which the Supreme Court had stated that “[a] person of the Japanese race is a citizen of the United States if he was born within the United States.”²¹⁵

After Dold’s quick argument, Webb requested time for a rebuttal on Morrison . (Webb, who had litigated Morrison , remarked dryly, “I argued that case in the United States Supreme Court, and succeeded in getting a unanimous opinion against my contention, so I know something about it.”)²¹⁶ He argued that Morrison should not be cited as a precedent on birthright citizenship because the issue had not been in dispute. “It is true that Justice Cardozo, in speaking of it, did say that Japanese born in this country are citizens, and this lost the case,” Webb conceded, “but that question was not argued, not presented, not considered. We admitted that Japanese born in this country were citizens.”²¹⁷

This was an interesting admission from an attorney who was now arguing exactly the opposite. Webb sought to explain the about-face: “We have always admitted it,” he said. “We challenge it here for the first time.”²¹⁸ What accounted for the change? Webb explained that he had “learned in 1922 the decision was wrong.”²¹⁹ That, presumably, was a reference to Ozawa , which the Supreme Court decided in 1922. The timing did not quite add up, though, because Morrison was not argued until 1933, eleven years after Ozawa was decided. Webb’s next sentence made clear that the change that had propelled him to bring the challenge was not just Ozawa . “I have been intending from 1922, ever since then, to bring an action of this kind in order that that question might be submitted, but the attitude of the Federal Government toward the Japanese Government up to recently was not very favorable [to such a challenge],” Webb explained. That changed, he said “on the 7th of December, last,” – the date of the Pearl Harbor attack – “[when] I concluded that it was about time that this question should be submitted to the courts of this country.”²²⁰

The hearing could have easily ended there, with Webb’s vision of the United States as a white republic countered only by Dold’s brief recitation of the law. There were, however, two other attorneys present, and they were ready to name Webb’s vision for what it was. Attorney Harold Sawyer, representing the National Lawyers Guild as amicus curiae, began his argument with a dramatic opening line: “If you had taken the argument made by General Webb,” Sawyer began, “and substituted the word ‘white’ to Aryan, you would have had the same language as contained in Hitler’s ‘Mein Kampf.’”²²¹ He continued in this vein for the remainder of his argument. “We are fighting a democratic war,” he told Judge St. Sure, “and we cannot do it by adopting fascist technique, and to limit the right to be a citizen to only a selected few of the white race is to destroy the meaning of everything we are trying to do.”²²² Charles Garry, also representing the Guild, developed this argument further:

Your Honor, I would like to throw into the question that millions of Americans, as well as some of our Allies, some twenty-six nations who are fighting with us, what would they think if we came out to-day, in the midst of a war, and said that the United States would only recognize Americans who were born white as citizens of the United States.²²³

They followed up a few days later with an amicus brief along the same lines:

We are fighting a war for the preservation of the four freedoms enunciated by President Roosevelt, for the installation of the Atlantic Charter, and for the triumph of democracy over slavery; but if democracy is only to be for the white people, our war aims are meaningless and there is little distinction between them and Hitler’s aim to conquer the world for the German people. The possibility that our war aims could be so limited is revolting to every American citizen.²²⁴

The National Lawyers Guild was the only civil rights group represented at the hearing. However, attorney Wayne Collins, who was soon to become one of the central figures in challenging the constitutionality of internment and in restoring the status of those who had renounced U.S. citizenship,²²⁵ read a news article about the hearing and quickly drafted an amicus brief on behalf of the ACLU.²²⁶ “Petitioner’s counsel argues for a ‘white’ America – over a century and a half too late,” the ACLU brief argued. “Purity of race is a fiction . . . There is no race – there is only mixture. The ‘white’ race is a product of the imagination.”²²⁷ Like the Guild brief, the ACLU brief – written, Collins later told a colleague, in “great anger, fury and haste”²²⁸ – also invoked the specter of Nazism: “What plaintiff’s counsel has done is obvious. He has confused the word ‘white’ with the word ‘Aryan’ as understood in modern Germany under Nazi rule.”²²⁹ Although not as focused on the American war effort as the Guild brief, it alluded to the wartime implications of the case: “Thousands of these native born American citizens of alien parentage now serve in our military and naval forces in defense of our traditional rights and liberties. Those who instituted this action have chosen a strange time in which to launch an assault on cherished constitutional rights.”²³⁰

On July 2, 1942, Judge St. Sure dismissed the case in a brief order in which he cited Wong Kim Ark , Morrison v. California , and Perkins v. Elg ,²³¹ a 1939 decision in which the Supreme Court reaffirmed Wong Kim Ark in a case concerning a woman born in the United States but raised in Sweden by her Swedish parents. “This case is exceptional,” St. Sure remarked in the decision, “because the sole question it presents to this court is one which has been definitely decided by the United State Supreme Court.”²³² Because the question was a matter of settled law, he ruled, it was “unnecessary to discuss the arguments of counsel.”²³³

E. The Appeal

Webb sought review of Judge St. Sure’s decision,²³⁴ and as the case headed for the Ninth Circuit in the fall of 1942, it attracted broader attention. In December 1942, attorney A.L. Wirin wrote to Collins, asking to have his name added to the ACLU’s brief to the Court of Appeals.²³⁵ Wirin, a Jewish immigrant whose family had fled pogroms in Russia, had previously worked as the ACLU’s first full-time staff attorney and was known for his work defending free speech and worker’s rights.²³⁶ In 1942, he became involved in legal challenges to internment and became counsel to the Japanese American Citizens League (JACL).²³⁷ He took on a central role in litigating Regan v. King at the Ninth Circuit. In addition to joining the ACLU brief, he was also on an amicus brief submitted by the San Francisco and Los Angeles chapters of the National Lawyers Guild.²³⁸ More significantly, he brought the JACL into the case.

While Regan v. King was pending at the Ninth Circuit, Wirin attended a JACL national meeting in Salt Lake City, where he briefed participants about the birthright citizenship litigation as well as about the various cases challenging curfews and removal.²³⁹ The JACL had, controversially, opted to collaborate with the program of forced removal and incarceration and did not play a role in litigating the cases challenging those policies, but it did decide to get involved in Regan v. King .²⁴⁰ As historian Greg Robinson and legal scholar Frank Wu have recounted, two attorneys who were in the JACL leadership, Saburo Kido and Walter Tsukamoto, took an interest in the case, but their ability to participate in drafting a brief was limited, since both were incarcerated at the time.²⁴¹ With Wirin’s assistance, they recruited Hugh Macbeth to author a brief on behalf of the JACL.²⁴² Macbeth, a Black civil rights attorney born in Charleston, South Carolina, and educated at Harvard Law School, ran a law firm in Los Angeles with his brother and was the founder of an antiracist advocacy group called United Races of America.²⁴³ He had close ties to the Japanese community in Los Angeles and was among the first attorneys to defend the rights of Issei who were arrested in the wake of Pearl Harbor.²⁴⁴ Macbeth, in turn, recruited Thomas L. Griffith, president of the Southern California branch of the NAACP, to work with him on the brief.²⁴⁵

Together, these five attorneys – Wirin, Kido, Tsukamoto, Macbeth, and Griffith – submitted a brief on behalf of the JACL that emphasized the broad implications of the case.²⁴⁶ Their brief argued that, while the framers of the Fourteenth Amendment had primarily been motivated to protect the rights of African Americans, the amendment’s protection was much wider in scope:

Today [those being targeted] are American-Chinese, American-Filipinos, American-Koreans, and Americans of Japanese ancestry. Tomorrow it may be another group. The true relation of the Thirteenth, Fourteenth, and Fifteenth Amendments of the Constitution to the Negroes is that they are a shield protecting human rights on which is emblazoned: “You shall not do again to others as you did it unto these.”²⁴⁷

The brief repeatedly emphasized the broader implications of the assault that Japanese Americans were experiencing:

You cannot attack the citizenship of those of Japanese ancestry without debasing citizenship as such; and without cheapening the birthright of those of Negro ancestry and White ancestry as well. The Japanese American Citizens League is speaking in this brief, far more than may appear on the surface, not merely for its members whose citizenship is jeopardized by the case at bar, but for an America composed of many peoples united by common ideals—ideals which ugly prejudices and ungrounded hysteria must not be allowed to destroy.²⁴⁸

In a section entitled “Interests of Negroes and This Case,” the brief drew connections between Black citizenship and Asian American citizenship. It took aim at a statement in Webb’s brief to the Ninth Circuit in Regan v. King that sought to assure the court that “[t]he status of the Negro is in no way involved in this case.”²⁴⁹ Seeking to confine the scope of the Citizenship Clause to its immediate post-Civil War context was a standard element of efforts to attack Asian American citizenship, dating back to the government’s briefs in Wong Kim Ark .²⁵⁰ This strategy was evident in the language of the constitutional amendments that anti-Asian legislators introduced in the 1920s, which were carefully constructed to draw a line between Asian American citizenship and Black citizenship.²⁵¹ The JACL brief expressed skepticism about Webb’s assurance, noting:

The very fact that the appellant found it necessary to make this reference attests to the deep uneasiness with which the Negro is watching actions of this kind. The Negro recognizes this assault as a move against that little corner of security possessed by any American minority group of color. He realizes that, except for the absence of war hysteria or other externalized emotionalism directed against him at the moment, he stands in precisely the same position as those of Japanese ancestry.²⁵² Pointing out Webb’s many references in his brief to whiteness as

foundational to the Constitution, the brief stated that “the Negro knows that this is but a skirmish in a campaign that will overwhelm and dispossess him if it reaches its ultimate goal.”²⁵³ It noted that the goal of overturning Wong Kim Ark had the support of Representative Rankin, one of the most outspoken segregationists in Congress.²⁵⁴ It also quoted a CJIC document in which the organization had once described the granting of citizenship to African Americans after the Civil War as a “grave mistake.”²⁵⁵ Regan v. King , it argued, was the first step in the CJIC’s “white America” program.²⁵⁶ The next step, it asserted,

will be to propose a constitutional amendment to “rectify” the “grave mistake” of “the granting of citizenship to the Negroes after the Civil War” and to surrender the final victory to Hitlerism, no matter how the tide of actual battle has gone.²⁵⁷

The brief emphasized the high stakes of the case for many Americans, imploring the court to take note that, “in spite of the appellant’s exploitation of war-time hysteria and current racial prejudices against those of Japanese ancestry, this action is in reality aimed at persons of many diverse ethnic backgrounds.”²⁵⁸

In keeping with Dold’s approach at the oral argument before Judge St. Sure, the City of San Francisco submitted a bare-bones brief that did not include any legal argument. Less than two pages long, it consisted mostly of a quote from Webb’s own brief, in which Webb conceded that what he was asking for was in conflict with the Wong Kim Ark holding.²⁵⁹ Dold also apparently planned a similarly minimalist strategy for his oral argument before the Court of Appeals. Two days before the hearing, on the same day that the JACL brief was filed, Wirin sent a telegram to the court informing the court that he had spoken with Dold, who had advised Wirin that “his oral argument will take five minutes,” and that he had no objection to the court allocating the rest of the time to Wirin.²⁶⁰

Webb seemed to understand the dynamics at play: the public interest lawyers who had submitted amicus briefs were the opposing counsel he cared about, not Dold. Webb did not bother filing a reply to the City’s brief, but did file a lengthy reply to the briefs submitted by the ACLU and the Guild.²⁶¹ (He was apparently not yet aware of the JACL brief, which was filed shortly before the oral argument.) In his reply brief, Webb repeatedly denied that racial animus had anything to do with the suit, claiming that, “[r]ace superiority is not involved” and that “[w]hether the white race is inferior or superior does not affect the question.”²⁶² He also responded to arguments raised by the ACLU that had not been raised before the district court, including the argument that the citizenship of Japanese Americans was guaranteed not only by the Fourteenth Amendment but also by the Nationality Act of 1940.²⁶³

Although the court had granted Wirin’s request to participate in the oral argument,²⁶⁴ Wirin never got the opportunity to do so. Webb spent thirty minutes making his argument before the Court of Appeals, which was sitting en banc.²⁶⁵ When Dold rose to present his arguments on behalf of the City, Chief Judge Curtis Wilbur told him not to bother, and took the extraordinary action of announcing the court’s decision from the bench, without even hearing the opposing argument: the decision of the District Court would be sustained.²⁶⁶ In a per curiam decision, the court cited the Fourteenth Amendment, Wong Kim Ark , and “a long line of decisions” in affirming the judgment of dismissal.²⁶⁷ On May 17, 1943, a little over a year after the complaint was filed, the Supreme Court denied certiorari.²⁶⁸

F. The Aftermath

The immediate impetus for litigating the scope of the Citizenship Clause in 1942 was the substantial doubt that existed within the Roosevelt administration about the constitutionality of incarcerating U.S. citizens of Japanese descent; Webb was seeking to restrict birthright citizenship so that it did not get in the way of internment. Webb lost on the question of the interpretation of the Citizenship Clause, but in other ways he prevailed: birthright citizenship turned out not to be much of an obstacle after all. At the very same time that Regan v. King was being decided, Nisei citizenship was being gutted of its substance in a series of cases upholding actions by the government that singled out Japanese Americans on the sole basis of ethnicity.²⁶⁹ Japanese Americans were simultaneously affirmed as citizens on the level of formal status but denied the basic rights of citizenship. They were rendered, in the words of historian Mae Ngai, “alien citizens.”²⁷⁰

In many ways, the 1940s represented a moment of vindication for groups that had been involved in anti-Japanese advocacy for decades: Japanese Americans were deprived of the basic rights of citizenship, and many ultimately lost the formal status of citizenship as well.²⁷¹ It was also, however, the beginning of the end of the movement that the CJIC embodied. Organized labor had traditionally been the mainstay of support for anti-Asian activism, including earlier attempts to restrict birthright citizenship, but even as Regan v. King was being litigated, that was changing. When delegates from 1,300 union locals gathered in Long Beach in September 1942 for the annual convention of the California State Federation of Labor, they overwhelmingly rejected a proposed resolution that would have expressed support for a constitutional amendment barring Japanese Americans from birthright citizenship.²⁷² A heated discussion on the floor revealed that the frameworks being put forward by civil rights activists and lawyers reflected broader shifts that were underway; the debate included comments that the proposed resolution was “inhuman, vicious and undemocratic” and “played into the hands of axis propagandists.”²⁷³ In 1946, when the CJIC drafted a ballot measure to enshrine the Alien Land Law in the state constitution, it lost by a large margin – a sharp contrast to the support that the Japanese exclusion movement had formerly enjoyed in California.²⁷⁴

Soon after the 1946 ballot measure, Webb died at the age of eighty-three. Over the next few years, courts began to strike down statutes that discriminated against Asian Americans under the rubric of “ineligibility to citizenship.”²⁷⁵ In 1952, Congress eliminated the racial bar to naturalization.²⁷⁶ A newspaper article that year described the CJIC as having “lost the support of veterans’ and labor groups” and having “disintegrated to a mere paper organization.”²⁷⁷

Part III: What Can We Learn from Regan v. King ?

On January 20, 2025, President Donald Trump issued an executive order purporting to upend the long-settled boundaries of American birthright citizenship. Executive Order 14160, entitled “Protecting the Meaning and Value of American Citizenship,” declares that the Fourteenth Amendment’s guarantee of citizenship to all those “born . . . in the United States, and subject to the jurisdiction thereof” extends only to those who, at the time of their birth, have either 1) a father who is a U.S. citizen or lawful permanent resident, or 2) a mother who is neither “unlawfully present in the United States” nor in “lawful but temporary” status.²⁷⁸ This attempt to make birthright citizenship contingent on a parent’s immigration status directly conflicts with the longstanding interpretation of the Citizenship Clause by federal courts, Congress, and the executive branch.²⁷⁹ In defending the legality of the order against multiple legal challenges, the Department of Justice has asked courts to adopt a novel reading of the Citizenship Clause that would narrow the holding of Wong Kim Ark beyond recognition, limiting its application to children whose parents fit within the parameters of the executive order . ²⁸⁰ Several district courts and two courts of appeals have rejected the government’s arguments.²⁸¹ On December 5, 2025, the Supreme Court granted certiorari in one of these cases, Barbara v. Trump , a class action suit filed in the District of New Hampshire.²⁸²

The litigation has prompted a flood of new commentary on the meaning and history of the Citizenship Clause,²⁸³ joining a considerable body of previous scholarship.²⁸⁴ Almost all of this work addresses the common-law roots of birthright citizenship, the drafting of the Fourteenth Amendment, and the nineteenth-century case law interpreting the Citizenship Clause.²⁸⁵ Regan v. King offers an entirely new way to understand the current litigation.

Given the unvarnished racism of Webb’s legal arguments, it might be tempting to view Regan v. King as merely a shameful artifact of an earlier era, with little contemporary relevance.²⁸⁶ Yet, we should not be so quick to dismiss its significance. Webb was not a fringe figure. He served as California’s attorney general for nine terms – a total of thirty-seven years.²⁸⁷ He won re-election again and again while persistently attacking the rights of both Japanese immigrants and their U.S.-born children.²⁸⁸ His agenda enjoyed broad support among white Californians while he was in office,²⁸⁹ and he brought the lawsuit in coordination with organizations with substantial memberships. In 1942, in the midst of wartime anti-Japanese hysteria, a majority of Americans believed that Japanese Americans should be “sent back” to Japan.²⁹⁰ The idea of overturning Wong Kim Ark appealed to figures across regional and political divides, a coalition reminiscent of the one behind the litigation that led to Wong Kim Ark .²⁹¹

Webb chose to employ the language of white nationalism, but it would have been easy for him to make a more sanitized argument. The case law that he cited contained a blueprint for such an argument: the ostensible race-neutrality of restrictions based on “ineligibility to citizenship” was a core element of the defense of discriminatory state laws such as the alien land laws, and enabled such laws to survive numerous legal challenges during this period.²⁹² The Supreme Court’s decision in Korematsu ²⁹³ stands as a grim reminder that judges accustomed to viewing discrimination against those “ineligible to citizenship” as uncontroversial found it relatively easy, in the midst of war against Japan, to countenance restrictions on the children of such immigrants.

Regan v. King deserves attention as a bridge between the late nineteenth-century conflicts over birthright citizenship and the ones we are witnessing today. Like Wong Kim Ark itself, and like the present litigation, Regan v. King was an attempt to narrow a previously established interpretation of the Citizenship Clause. Looking at these challenges together reveals that each attempt to persuade the courts to restrict birthright citizenship has produced its own theory about the meaning of the first sentence of the Fourteenth Amendment. In Wong Kim Ark , and in the legal scholarship that led up to it, restrictionists argued that the Citizenship Clause recognized as birthright citizens only the children of U.S. citizens.²⁹⁴ In Regan v. King , restrictionists argued that the Citizenship Clause recognized as birthright citizens only children whose parents were either citizens or racially eligible to become citizens. In the current litigation, the government seeks to persuade the courts that the Citizenship Clause recognizes as birthright citizens only children born to at least one parent who is a citizen or possesses a designated immigration status. The government’s chief argument is that children who do not have a parent who fits this description “lack the reciprocal relationship of allegiance and protection that would bring them within the political jurisdiction of the United States.”²⁹⁵ This argument is premised on a notion that individuals can be said to have (or to lack) something called “primary allegiance” to the United States, a novel term that no court has ever employed in relation to the Citizenship Clause.²⁹⁶

The shift in restrictionist arguments between Wong Kim Ark and Regan v. King can be understood as strategic rather than substantive. Webb shared the same goal as the attorneys who sought to limit the scope of birthright citizenship in the 1890s, and merely came up with a different legal theory (grounded in U.S. statutory law rather than international law) to get there. That innovation enabled him to propose a reading of the Citizenship Clause that would have stripped Asian Americans of citizenship while leaving the children of European immigrants unscathed.

In contrast, the shift that has taken place between Regan v. King and the present reveals a fundamental realignment in the effort to restrict birthright citizenship, from one that targeted Asian Americans and relied on arguments about parental ineligibility to naturalize to one that is a) ostensibly race-neutral; b) heavily characterized, in public discourse, by tropes of undocumented Latin American (in particular, Mexican) women giving birth on U.S. soil;²⁹⁷ and c) centered on arguments about parental lack of authorized immigration status.²⁹⁸ This realignment, which can be fully understood only in the context of the sweeping changes that have taken place within immigration law since the mid-twentieth century, highlights the degree to which restrictionist arguments, past and present, have relied on the statutory frameworks of their respective eras.

In Regan v. King , Webb sought to tether birthright citizenship to the lines drawn by the naturalization statute, the Asian exclusion laws, and the alien land laws.²⁹⁹ By the 1960s, the entire statutory framework on which his argument had relied was gone; the Asian exclusion laws and the racial bar to naturalization had been repealed, and the alien land laws were no longer in effect.³⁰⁰ In the decades that followed, a different legal framework took shape, one which has turned out to be just as essential to contemporary efforts to restrict birthright citizenship as those laws had been to Webb’s arguments. This framework has fundamentally altered the legal, social, and political meaning of being present without authorization in the United States, drawing a sharp line between undocumented parents and U.S. citizen children in contemporary mixed-status families.³⁰¹

As historian Mae Ngai has written, “illegal alienage is not a natural or fixed condition but the product of positive law; it is contingent and at times it is unstable.”³⁰² Ngai’s work points to the 1920s as the decade in which the figure of the “illegal alien” emerged as a new legal and political subject, one that soon came to be racialized as Mexican.³⁰³ As the work of Ngai and others has shown, however, the line that divided undocumented immigrants and U.S. citizens within mixed-status families remained permeable in the early twentieth century. For some mixed-status families, unauthorized status turned out to be merely a technical problem that could be fixed: in the wake of new visa requirements and numerical limits on immigration imposed in 1924 by the Johnson-Reed Act,³⁰⁴ policymakers crafted a variety of administrative processes to enable the growing number of European and Canadian unauthorized immigrants to transition to lawful permanent residence (in some cases, based on a showing that their deportation would cause hardship to a citizen child).³⁰⁵ Meanwhile, within ethnic Mexican mixed-status families (few of which benefitted from these new forms of relief)³⁰⁶ the line between undocumented immigrants and their U.S. citizen family members was often permeable in a very different way: U.S. citizenship provided little protection in the face of the mass expulsions to Mexico that state and federal agencies carried out during economic downturns. These “repatriations” (better understood as banishment, as historian Marla Ramírez argues),³⁰⁷ swept up people of Mexican descent regardless of status; it is estimated that sixty percent of the approximately one million ethnic Mexicans “repatriated” to Mexico in the interwar period were U.S. citizens.³⁰⁸ If citizenship status failed to protect Mexican Americans against expulsion during economic downturns, it was also the case that lack of authorized status often posed little barrier to Mexican immigrants in times when employers needed workers; land borders remained porous, and work authorization was not required for employment.³⁰⁹ In all of these different ways, the lines between documented and undocumented, citizen and noncitizen, remained blurred.

Between the 1960s and the 1990s, those lines hardened. As the number of Mexican undocumented immigrants in the United States rose – a result of statutory changes in the 1960s that transformed formerly lawful flows of temporary workers from Mexico into new flows of unauthorized migrants³¹⁰ – the media began portraying Mexican immigrants as a threat to the United States.³¹¹ Rising anti-immigrant sentiment and public perception that the border was out of control led to a series of restrictive immigration laws, beginning in the late-1980s: the curtailing of options for regularizing status;³¹² the militarization of the U.S.-Mexico border;³¹³ the proliferation of federal and state laws that require people to furnish proof of lawful status in an ever-growing list of settings, such as obtaining a job or a driver’s license;³¹⁴ and a cluster of developments, often grouped together under the term “crimmigration,” that have blurred the line between immigration law enforcement and criminal law enforcement.³¹⁵ Rather than being understood as a potentially temporary state, being undocumented came to be understood as a type of person, defined by illegality.³¹⁶ Meanwhile, the passage of civil rights legislation,³¹⁷ combined with the advent of federally-funded legal services programs and the founding of advocacy groups such as the Mexican American Legal Defense and Education Fund,³¹⁸ meant that citizenship rights started to mean more. Together, these changes sharpened the line running down the middle of mixed-status families.

It is this contemporary understanding of “illegality” – as a fixed and all-encompassing status – and this contemporary understanding of citizenship – as a meaningful source of rights – that animate the current push for restrictions on birthright citizenship. The first scholars to propose the restrictions on birthright citizenship now embodied in the Executive Order, Peter Schuck and Rogers Smith, argued in 1985 that the “massive increase in illegal migration to the United States,” a development that they characterized as “a new, convulsive violation of consensually based political community,” called for rethinking the boundaries of birthright citizenship.³¹⁹ A recent commentary on the current birthright citizenship litigation by legal scholar Richard Epstein shows how profoundly this understanding of illegality continues to shape the way that contemporary restrictionists approach the question of the meaning of the Citizenship Clause. “Why would anyone defend birthright citizenship for the children of illegal entrants in to the United States,” Epstein asks, “when that view obliterates, as a matter of constitutional design, the line between legal and illegal conduct?”³²⁰

Epstein’s question is intended to be rhetorical, but we can learn something by asking it in earnest, in a slightly different form. Why, we might ask, did Webb show no concern, in 1942, about the fact that the Citizenship Clause, even under his constrained reading, would have accorded citizenship to the children of many (non-Asian) immigrants who lacked authorized status?³²¹ Such families were of no concern to Webb. Nor were they of concern to Representative Rankin, Senator Stewart, Earl Warren, the Chief Justice of the New Mexico Supreme Court, or the various governors and advocacy organizations that expressed support for overturning Wong Kim Ark . Voices that called for restricting birthright citizenship all converged solely on a different set of mixed-status families: those that combined parents racially ineligible to naturalize and children who were birthright citizens.

As Webb’s own words make clear, his selective focus was driven by racial animus. We should not lose sight, however, of the statutory scheme that enabled him to turn that animus into arguments for restricting birthright citizenship. Birthright citizenship held heightened significance within Asian immigrant communities in the United States in the early twentieth century, due to the racial bar on naturalization and the many discriminatory laws that incorporated that bar. Webb and others sought to leverage the contradictions posed by the sharp divide that these laws created between citizen children and Asian immigrant parents. In contrast, the type of mixed-status families targeted by current restrictionists would have presented a very different picture.³²² Outside of Asian immigrant communities, the line between undocumented parents and citizen children was far less significant in the 1940s than the line that Webb sought to leverage. Tracing the transition between Regan v. King and the current litigation makes it clear that the preoccupations of policymakers in particular eras have profoundly shaped the paths of arguments to restrict the scope of birthright citizenship. Epstein’s question, like Webb’s argument, can be articulated only against the backdrop of a particular statutory scheme.

The impulse that these challenges embody – to mold birthright citizenship to the lines drawn by contemporary statutory law – is precisely what the Reconstruction Congress sought to prevent when it took the step of enshrining a broad rule of birthright citizenship in the Fourteenth Amendment. Senator Jacob Howard made this aim clear when he proposed that birthright citizenship should be guaranteed in the Fourteenth Amendment even though Congress had just enacted a statute to that effect.³²³ “We desire[],” he explained, “to put this question of citizenship and the rights of citizens and freedmen under the civil rights bill beyond the legislative power of [those] who would pull the whole system up by the roots and destroy it, and expose the freedmen again to the oppressions of their old masters.”³²⁴ In Wong Kim Ark , the Supreme Court recognized that this motivation led to the inclusion of birthright citizenship in the Fourteenth Amendment, noting that the framers of the amendment “evidently [thought] it unwise, and perhaps unsafe, to leave so important a declaration of rights to depend upon an ordinary act of legislation, which might be repealed by any subsequent congress . . . .”³²⁵

The current litigation does not, of course, concern an attempt by Congress to restrict birthright citizenship, but rather an action that the framers of the Fourteenth Amendment would likely have found even more alarming: an executive order.³²⁶ At minimum, however, it raises the same concerns that an attempt by Congress to restrict birthright citizenship would raise.³²⁷ The Trump administration is asking courts to rewrite the Citizenship Clause to conform to the contemporary construction of immigrant illegality, which itself is profoundly embedded in statutory changes made in the twentieth century. If courts were to allow shifting rationales such as these to shape the contours of birthright citizenship, they would be defeating one of the central aims of the Fourteenth Amendment.

Looking at the current litigation through the lens of Regan v. King is a reminder that arguments for restricting birthright citizenship are historically contingent, shaped by both the political norms and the statutory frameworks of their respective eras. Recognizing this fact does not, on its own, answer the question facing the Supreme Court about the meaning of the Citizenship Clause. It should, however, cause the Court to approach contemporary arguments for restriction with as much skepticism as the courts had for Webb’s arguments in the 1940s. The outrageousness of Webb’s language should not distract us from the distinct parallels that can be drawn between the arguments that he offered in 1942 and the arguments being advanced in the litigation today. Restrictionists past and present have presented versions of the same basic argument: that the framers of the Fourteenth Amendment could not possibly have meant to guarantee a form of birthright citizenship that would one day appear to conflict so seriously with a contemporary statutory scheme.

That temporal dynamic is exactly what the framers of the Fourteenth Amendment sought to guard against. They could not have foreseen what particular targets would emerge in the decades and centuries that followed their drafting, but they did not have to: their own experience in a divided nation and a divided government taught them that their efforts to overturn Dred Scott might be fragile if guaranteed only by statutory law. That is why they sought to put birthright citizenship out of reach of the legislative process. In 1942, as in 1898, this impulse was vindicated: the Citizenship Clause functioned as the Reconstruction Congress had intended, protecting birthright citizenship against exactly the sort of temporary logic that its framers had anticipated. Even at a time when the courts broadly accepted the racial exclusions in the naturalization statute and the various forms of state-sponsored discrimination that flowed from it, they drew the line at extending those forms of discrimination to U.S.-born children, due to the clear and expansive language of the Citizenship Clause.

The judges who have ruled on the current cases so far have reached the same conclusion, striking down Executive Order 14160 with words as unequivocal as those of the judges who ruled on Webb’s complaint in Regan v. King . Judge John Coughenour of the Federal District Court for the District of Washington, appointed to the bench in 1981 by President Ronald Reagan, issued a stinging rebuke to the government, declaring the executive order “blatantly unconstitutional” and remarking that, in over four decades on the bench, he could not “remember another case where the question presented is as clear as this one is.”³²⁸ Judge Deborah Boardman of the Federal District Court for the District of Maryland commented from the bench, “No court in the country has ever endorsed the president’s interpretation. This court will not be the first.”³²⁹

One way or another, this particular cycle of restrictionism will soon come to a close, but it may not be the last. As the civil rights lawyers who drafted the JACL amicus brief presciently observed, safeguarding the near-universal rule of birthright citizenship established by the Fourteenth Amendment is an ongoing task. “Today [those being targeted] are American- Chinese, American-Filipinos, American-Koreans, and Americans of Japanese ancestry,” they wrote in 1943. “Tomorrow it may be another group.”³³⁰