Nobody can deny that the question of citizenship in a nation is of the most
vital importance.  It is a precious heritage, as well as inestimable
acquisition; and I cannot think that any safeguard surrounding it was intended
to be thrown down by the amendment.

  In suggesting some of the privileges and immunities of national citizenship,
in the Slaughterhouse Cases Mr. Justice Miller said:  "Another privilege of a
citizen of the united States is to demand the care and protection of the
Federal Government over his life, liberty and property when on the high seas or
within the jurisdiction of a foreign government.  Of this there can be no
doubt, nor that the right depends upon his character as a citizen of the
United States."

  Mr. Hall says in work on Foreign Jurisdiction, etc., Sections 2, 5, the
principle is that "the legal relations by which a person is encompassed in his
country of birth and residence cannot be wholly put aside when he goes abroad
for a time; many of the acts which he may do outside his native state have
inevitable consequences within it.  He may for many purposes be temporarily
under the control of another sovereign than his own, and he may be bound to
yield to a foreign government a large measure of obedience; but his own State
still possesses a right to his allegiance; he is still an integral part of the
national community.  A State therefore can enact laws, [728] enjoining or
forbidding acts, and defining legal relations, which apply to its subjects
abroad in common with those within its dominions.  It can declare under what
conditions it will regard as valid, acts done in foreign countries, which
profess to have legal effect; it can visit others with penalties; it can
estimate circumstances and facts as it choose."  On the other hand, the "duty
of protection is correlative to the rights of a sovereign over his subjects;
the maintenance of a bond between a State and its subjects while they are
abroad implies that the former must watch over and protect them within the due
limit of the rights of other States.  . . . It enables governments to exact
reparation for oppression from which their subjects have suffered, or for
injuries done to them otherwise than by process of law; and it gives the means
of guarding them against the effect of unreasonable laws, of laws totally out
of harmony with the nature of degree of civilization by which a foreign power
affects to be characterized, and finally of an administration of the laws had
beyond a certain point.  When in these directions a State grossly fails in its
duties; when it is either incapable of ruling, or rules with the patent
injustice, the right of protection emerges in the form of diplomatic
remonstrances, and in extreme cases of ulterior measures.  It provides a
material sanction for rights; it does not offer a theoretic foundation.  It
does not act within a foreign territory with the consent of the sovereign; it
acts against him contentiously from without."

  The privileges or immunities which, by the second clause of the amendment,
the States are forbidden to abridge are the privileges or immunities
pertaining to citizenship of the United States, but that clause also places an
inhibition on the States from depriving any person of life, liberty or
property, and from denying "to any person within its jurisdiction, the equal
protection of the laws," that is, of its own laws--the laws to which its own
citizens are subjected.

  The jurisdiction of the State is necessarily local, and the limitation
relates to rights primarily secured by the States and not by the United
States.  Jurisdiction as applied to the General Government embraces
international relations; as applied [729] to the State, it refers simply to
its power over persons and things within its particular limits.

  These considerations lead to the conclusion that the rule in respect of
citizenship of the United States prior to the Fourteenth Amendment differed
from the English common law rule in vital particulars, and, among others, in
that it did not recognize allegiance as indelible, and in that it did
recognize an essential difference between birth during temporary, and birth
during permanent, residence.  If children born in the United States were
deemed presumptively and generally citizens, this was not so when they were
born of aliens whose residence was merely temporary, either in fact, or in
point of law.

  Did the Fourteenth Amendment impose the original English common law rule as
a rigid rule on this country?

  Did the amendment operate to abridge the treaty-making power, or the power
to establish an uniform rule of naturalization?

  I insist that it cannot be maintained that this Government is unable through
the action of the President, concurred in by the Senate, to make a treaty with
a foreign government providing that the subjects of that government, although
allowed to enter the United States, shall not be made citizens thereof, and
that their children shall not become such citizens by reason of being born
therein.

  A treaty couched in those precise terms would not be incompatible with the
Fourteenth Amendment, unless it be held that that amendment has abridged the
treaty-making power.

  Nor would a naturalization law excepting those persons of a certain race and
their children be invalid, unless the amendment has abridged the power of
naturalization.  This cannot apply to our colored fellow-citizens, who never
were aliens--were never beyond the jurisdiction of the United States.

  "Born in the United States, and subject to the jurisdiction thereof," mean
born or naturalized under such circumstances as to be completely subject to
that jurisdiction, that is, as completely as citizens of the United States,
[730] who are of course not subject to any foreign power, and can of right
claim the exercise of the power of the United States to the subjects of a
foreign power, with which it is agreed by treaty that they shall not be
naturalized thereby, and as to whom our own law forbids them to be
naturalized, such children are not born so subject to the jurisdiction as to
become citizens, and entitled on that ground to the interposition of our
Government, if they happen to be found in the country of their parents'
origin and allegiance, or any other.

  Turning to the treaty between the United States and china, concluded July
28, 1868, the ratifications of which were exchanged November 23, 1869, and the
proclamation made February 5, 1870, we find that, by its sixth article, it was
provided:  "Citizens of the United States visiting or residing in China shall
enjoy the same privileges, immunities or exemptions in respect of travel or
residence as may there be enjoyed by the citizens or subjects of the most
favored nation.  And, reciprocally, Chinese subjects residing in the United
States shall enjoy the same privileges, immunities and exemptions in
respect to travel or residence as may there be enjoyed by the citizens or
subjects of the most favored nation.  But nothing herein contained shall be
held to confer naturalization on the citizens of the United States in China,
nor upon the subjects of China in the United States."

  It is true that in the fifth article, the inherent right of man to change
his home or allegiance was recognized, as well as "the mutual advantage of the
free migration and emigration of their citizens and subjects, respectively,
from the one country to the other, for the purposes of curiosity, of traffic,
or as permanent residents."

  All this, however, had reference to an entirely voluntary emigration for
these purposes, and did not involve an admission of change of allegiance
unless both countries assented, but the contrary according to the sixth
article.

  By the convention of March 17, 1894, it was agreed "that Chinese laborers or
Chinese of any other class, either permanently [731] or temporarily residing
within the United States, shall have for the protection of their persons and
property all rights that are given by the laws of the united States to
citizens of the most favored nation, excepting the right to become naturalized
citizens."

  These treaties show that neither Government desired such change nor assented
thereto.  Indeed, if the naturalization laws of the United States had provided
for the naturalization of Chinese persons, China manifestly would not have
been obliged to recognize that her subjects had changed their allegiance
thereby.  But our laws do not so provide, and, on the contrary, are in entire
harmony with the treaties.

  I think it follows that the children of Chinese born in this country do not,
ipso facto, become citizens of the United States unless the Fourteenth
Amendment overrides both treaty and statute.  Does it bear that construction;
or rather is it not the proper construction that all persons born in the
United States of parents permanently residing here and susceptible of becoming
citizens, are not prevented therefrom by treaty or statue, are citizens, and
not otherwise?

  But the Chinese under their form of government, the treaties and statutes,
cannot become citizens nor acquire a permanent home here, no matter what the
length of their stay may be.  Wharton Confl. Laws, Section 12.

  In Fong Yue Ting v. United States, 149j U.S. 698, 717, it was said in
respect of the treaty of 1868:  "After some years' experience under that
treaty, the Government of the United States was brought to the opinion that
the presence within our territory of large numbers of Chinese laborers, of a
distinct race and religion, remaining strangers in the land, residing apart by
themselves, tenaciously adhering to the customs and usages of their own
country, unfamiliar with our institutions, and apparently incapable of
assimilating with our people, might endanger good order, and be injurious to
the public interests; and therefore requested and obtained form China a
modification treaty."

  It is not to be admitted that the children of persons so situated become
citizens by the accident of birth.  On the [732] contrary, I am of opinion
that the President and Senate by treaty, and the Congress by naturalization,
have the power, notwithstanding the Fourteenth Amendment, to prescribe that
all persons of a particular race, or their children, cannot become citizens,
and that it results that the consent to allow such persons to come into and
reside within our geographical limits does not carry with it the imposition
of citizenship upon children born to them while in this country under such
consent, in spite of treaty and statute.

  In other words, the Fourteenth Amendment does not exclude from citizenship
by birth children born in the United States of parents permanently located
therein, and who might themselves becomes citizens; nor, on the other hand,
does it arbitrarily make citizens of children born in the United States of
parents who, according to the will of their native government and of this
Government, are and must remain aliens.

  Tested by this rule, Wong Kim Ark never became and is not a citizen of the
United States, and the order of the District Court should be reversed.

  I am authorized to say that MR. JUSTICE HARLAN concurs in this dissent.

  MR. JUSTICE McKENNA, not having been a member of the court when this case
was argued, took no part in the decision.

_______________
  *1* The fundamental laws of China have remained practically unchanged since
the second century before Christ.  The statutes have from time to time
undergone modifications, but there does not seem to be any English or French
translation of the Chinese Penal Code later than that by Staunton, published
in 1810.  That code provided:  "All persons renouncing their country and
allegiance, or devising the means thereof, shall be beheaded; and in the
punishment of this offence, no distinction shall be made between principals
and accessories.  The property of all such criminals shall be confiscated, and
their wives and children distributed as slaves to the great officers of the
State.  ... The parents, grandparents, brothers, and grandchildren of such
criminals, whether habitually living with them under the same roof or not,
shall be perpetually banished to the distance of 2000 lee.
  "All those who purposely conceal and connive at the perpetration of this
crime, shall be strangled.  Those who inform against, and bring to justice,
criminals of this description, shall be rewarded with the whole of their
property.
  "Those who are privy to the perpetration of this crime, and yet omit to give
any notice of information thereof to the magistrates, shall be punished with
100 blows and banished perpetually to the distance of 3000 lee.
  "If the crime is contrived, but not executed, the principal shall be
strangled, and all the accessories shall, each of them, be punished with 100
blows, and perpetual banishment to the distance of 3000 lee.  ..."  Staunton's
Penal Code of China, 272, Section 225.