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Notes
1 For a fuller account of the case and its context, see now Nackenoff and Novkov, American by Birth.
2 U.S. v. Wong Kim Ark, 169 U.S. 649 (1898), 652. Hereafter cited as Wong Kim Ark and by page number.
3 For the distinction between jus soli and jus sanguinis, see Wong Kim Ark, 667. For the history of the legislation providing for the U.S. citizenship of children born overseas to U.S. parents, see Wong Kim Ark, 672. The rule of inheriting citizenship from one’s parents – jus sanguinis – until the modern period has been mainly a secondary means of acquiring citizenship, as in the case of the 1351 English Statute, De natis ultra mare, that granted this status to those born overseas to parents within the “ligeance” of the English Crown. See Kim, Aliens in Medieval Law, 121, 141.
4 Declaration of the Rights of Man and of the Citizen (August 26, 1789), Article 1. https://avalon.law.yale.edu/18th_century/rightsof.asp (accessed 19 July 2021).
5 Wong Kim Ark, 682. The 1924 Indian Citizenship Act declared that “all non-citizen Indians born within the territorial limits of the United States” are U.S. citizens. https://www.archives.gov/historical-docs/todays-doc/?dod-date=602 (accessed 5 January 2022).
6 See Kunzru, “As American as Family Separation,” 24: “The first targets of restrictive American immigration legislation were Asians. Amid anti-Chinese hysteria, the Page Act was passed in 1875, effectively barring entry to all Asian women. It was soon followed by the 1882 Chinese Exclusion Act. Subsequent waves of legislation maintained a near-total ban until 1943. Chinese-Americans who had birthright citizenship under the Fourteenth Amendment struggled to have their constitutional rights recognized. In 1898 the Supreme Court ruled in favor of Wong Kim Ark, a US citizen who had been denied entry in San Francisco by a customs official who declared himself a ‘zealous opponent of Chinese immigration.’ Ark was detained for five months on various steamships in San Francisco harbor, one of many Chinese-Americans who suffered in similar ways.” In other cases, such as Chae Chan Ping v. United States, 130 U.S. 581 (1889), the Acts were upheld, for example to prevent Chinese citizens from returning to the U.S., reflecting the relatively plenary power that sovereigns have to control borders. We were reminded of the relevance of these cases when President Donald J. Trump’s Muslim Travel Ban came into effect in 2017.
7 Lyons, “Trump Wants to Revoke Birthright Citizenship”.
8 Wong Kim Ark, 655.
9 See Kantorowicz, The King’s Two Bodies.
10 Schmitt, The Concept of the Political, 26.
11 Jan Assmann, “Total Religion: Politics, Monotheism, and Violence,” 113-48.
12 Thomas Hobbes, Leviathan, chap. 29. All references are to the edition by Edwin Curley (Indianapolis: Hackett, 1994).
13 Hobbes, Leviathan, chap. 39, §5.
14 Wong Kim Ark, 722.
15 Wong Kim Ark, 725.
16 Wong Kim Ark, 726.
17 149 U.S. 698 (1893), 717, quoted in Wong Kim Ark, 731.
18 Wong Kim Ark, 656.
19 Kantorowicz, The King’s Two Bodies, supra note 10.
20 Ibid., 4, 7, 14-16, 317, and 408.
21 Calvin’s Case, 77 ER 377 ( = 7 Coke Report 1a), 379.
22 Calvin’s Case, 380.
23 Calvin’s Case, 382.
24 Calvin’s Case, 388-89. These are key passages for Kantorowicz.
25 Calvin’s Case, 390, 391.
26 Maitland, “The Crown as Corporation,” 104-27, begins with an epigraph that describes what happens when the king dies and the “King’s Peace” is broken. Maitland’s essay served as one inspiration for Kantorowicz.
27 See Hale, The Prerogatives of the King, 85: “This conjunction or union of the body natural and politic is so strict that … any act that is intended to dissever the capacities each from [the] other is crimen lese majestatis, whether it be an attempt to sever the natural capacity from the politic by compassing the death of the king and manifesting it by open act, or [by] an attempt to sever the politic capacity from the natural by attempting to depose the king, though no mischief be intended to his person … . [H]ence it is that no personal disability can be attributed to the king or any of his actions.”
28 Calvin’s Case, 390.
29 Calvin’s Case, 394.
30 Wheeler, “Calvin’s Case (1608) and the McIlwain-Schuyler Debate,” 179.
31 Kim, Aliens in Medieval Law, 176, quoting James, Political Writings, 136.
32 Calvin’s Case, 397.
33 Ibid.
34 Calvin’s Case, 406.
35 Kim, Aliens in Medieval Law, 1.
36 Ibid., 196.
37 Ibid., 9. This parallels Henry Maine’s argument that the development of the law has moved from status to contract. See Maine, Ancient Law.
38 Boniface VIII, Unam sanctam. https://www.papalencyclicals.net/bon08/b8unam.htm (accessed 19 July 2021).
39 Hobbes, Leviathan, chap. 39, §5.
40 In the 1534 Act of Supremacy, Henry VIII asserted his supremacy over the English church, in an act that inaugurated the Reformation in that country. Both the Peace of Westphalia (1648) and the earlier Peace of Augsburg (1555) established the principle of cuius regio, eius religio, according to which the sovereign’s religion determined that of the realm.
41 Hobbes, Leviathan, chap. 42, §124.
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Notes on contributors
Robert A. Yelle
Robert A. Yelle is Professor of Religious Studies at Ludwig Maximilian University, Munich. He was educated at Harvard (A.B. 1988), Berkeley (J.D. 1993), and Chicago (Ph.D. 2002), and has held fellowships from the University of Toronto, the University of Illinois, NYU Law School, and the John Simon Guggenheim Memorial Foundation. He is the author of Explaining Mantras (Routledge 2003), The Language of Disenchantment (Oxford University Press 2013), Semiotics of Religion (Bloomsbury 2013), and Sovereignty and the Sacred (University of Chicago Press 2019), in addition to several edited volumes and numerous articles and book chapters.