这名华裔为所有人赢得美国出生公民权
This Man Won Birthright Citizenship for All
In August 1895, a young cook named Wong Kim Ark was about to disembark from the S.S. Coptic, after a long journey home to San Francisco from China, when U.S. customs officials denied him re-entry.
1895年8月，一位名叫黄金德的年轻厨师从中国长途跋涉回到旧金山，正准备从“科普特”号轮船下船时，美国海关官员拒绝他再次入境。
He was not a U.S. citizen, they said. Never mind that Mr. Wong had been born in San Francisco’s Chinatown, not far from the port where he was now being held. The 14th Amendment’s provision for automatic citizenship for all people born on U.S. soil did not apply to him, officials later argued, because he and his parents were not “subject to the jurisdiction” of the U.S. at the time he was born.
他们说，他不是美国公民。就算黄金德出生在旧金山的唐人街，离他现在被扣留的港口不远。官员们后来辩称，宪法第14修正案中关于所有在美国领土上出生的人自动获得公民身份的规定不适用于他，因为他和他的父母在他出生时并不“受美国管辖”。
Rather than back down, Mr. Wong took his case to the courts — and won.
黄金德没有退缩，而是告上法庭，并取得了胜利。
In Mr. Wong’s case, the Supreme Court affirmed the constitutional guarantee of automatic citizenship for nearly all children born in the United States, a right that has deep roots in common law. Since that 1898 ruling, that expansive understanding of birthright citizenship has been the law of the land.
在黄金德案中，最高法院确认了宪法对几乎所有在美国出生的儿童自动获得公民身份的保障，这一权利在普通法中有着深厚的根基。自1898年的这一裁决以来，这种对出生公民权的广泛理解一直是国家的法律。
Now, the Trump administration wants to roll back the Wong Kim Ark ruling — and birthright citizenship more broadly — as it moves to crack down on immigration.
现在，随着特朗普政府加强对移民的打击，他们想撤回黄金德案的裁决，以及更广泛的出生公民权。
On his first day back in office, President Trump signed an executive order declaring that the government would stop treating U.S.-born children of parents who are undocumented or are in the country temporarily as U.S. citizens.
特朗普总统重新上任的第一天就签署了一项行政命令，宣布政府将不再把无证件者或临时入境者在美国出生的子女视为公民。
The order prompted a flurry of lawsuits, mostly from Democratic attorneys general and civil rights groups. Last week, the order was indefinitely blocked. One federal judge called it “blatantly unconstitutional.” The Justice Department has already appealed one of the injunctions.
该命令引发了一系列诉讼，其中大部分来自民主党检察长和民权组织。上周，该命令被无限期阻止。一名联邦法官称其“公然违宪”。司法部已对其中一项禁令提出上诉。
The Trump administration is pushing forward a reinterpretation of the 1898 decision, drawing on ideas from a small group of legal scholars like John Eastman, a lawyer known for drafting a plan to block congressional certification of the 2020 presidential election.
特朗普政府正在推动对1898年判决的重新解释，并借鉴了一小部分法律学者的观点，其中包括约翰·伊斯曼，这位律师因起草了一项阻止国会认证2020年总统选举结果的计划闻名。
It is not clear that the Supreme Court, even with its conservative majority, would be inclined to take up such a case. Still, the recent moves may lay the groundwork for a protracted legal battle that critics of birthright citizenship hope will chip away at the longstanding precedent.
目前尚不清楚的是，即使最高法院的保守派占多数，它是否会倾向于受理此类案件。不过，最近的举动可能会为一场旷日持久的法律战奠定基础，出生公民权的批评者希望这场法律战能削弱长期以来的先例。
The Wong Kim Ark case “is settled law, or at least it’s as settled anything possibly could be,” said Amanda Frost, a law professor at the University of Virginia and an expert on immigration and citizenship law. “But that doesn’t mean it can’t get unsettled.”
黄金德案“是已经确定的法律，或者至少可以说，它是被广泛认可的法律原则”，弗吉尼亚大学法学教授、移民和公民身份法专家阿曼达·弗罗斯特说。“但这并不意味着它不会被颠覆。”
Mr. Wong’s case arose during a similar moment of heightened national anxiety around immigration.
黄金德案也是发生举国上下对移民问题高度焦虑的类似时刻。
His parents were part of a wave of Chinese laborers who flocked to the United States starting in the mid-1800s in search of economic opportunities. Mr. Wong’s father ran a grocery store in San Francisco’s Chinatown neighborhood, and in an apartment above that store, his son Kim Ark was born in 1870.
黄金德的父母是19世纪中期开始涌入美国寻找经济机会的中国劳工潮的一部分。他的父亲在旧金山唐人街附近经营一家杂货店，黄金德于1870年出生在杂货店楼上的一间公寓里。
The growing numbers of Chinese workers on the West Coast soon gave rise to economic competition and virulent racism. Vigilante mobs regularly terrorized and at times even lynched these immigrants, who were often portrayed as unassimilable, inferior and disease-ridden.
西海岸华工数量不断增加，很快引发了经济竞争和恶毒的种族主义。治安暴民经常恐吓这些移民，有时甚至对他们处以私刑，他们经常被描绘成不可同化、低劣和携带疾病的人。
Federal laws reflected that bias as well, like the Chinese Exclusion Act of 1882, which barred most Chinese people from entering the country and banned them all from becoming naturalized citizens.
联邦法律也反映了这种偏见，比如1882年的《排华法案》，该法案禁止大多数中国人进入美国，并禁止他们成为入籍公民。
Around that time, Mr. Wong’s parents went back to China, taking their son with them. Lured by the promise of higher wages, though, Mr. Wong soon returned to the United States.
大约在那个时候，黄金德的父母带着儿子回到了中国。不过，在更高工资的诱惑下，黄金德很快回到美国。
He was able to do so, despite the Chinese Exclusion Act, because lawmakers had adopted the 14th Amendment in 1868, two years before his birth. It states that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”
尽管有《排华法案》，他还是能够这样做，因为立法者在1868年，也就是他出生的两年前通过了第14修正案。它指出，“所有在合众国出生或归化合众国并受其管辖的人，都是合众国的和他们居住州的公民。”
The amendment overruled the 1857 Dred Scott decision, which declared that African people who were enslaved in the U.S., and their descendants, were not American citizens.
该修正案推翻了1857年德雷德·斯科特的判决，该判决宣布在美国被奴役的非洲人及其后代不是美国公民。
For Mr. Wong and his supporters, the amendment’s broad language — especially the phrase “all persons” — meant that U.S.-born people like Mr. Wong were citizens, despite the Chinese exclusion laws. And the first few times he traveled, he was able to re-enter the United States by proving that he was born in San Francisco.
对于黄金德和他的支持者来说，修正案的宽泛措辞——尤其是“所有人”这个词——意味着黄金德这样在美国出生的人是公民，尽管有排华法案。在最初的几次旅行中，他能够通过证明自己出生在旧金山而重新进入美国。
But the government, seeking to close what they saw as a loophole, set out to find a test case, and landed on Mr. Wong.
但政府为了弥补他们认为的漏洞，开始寻找一个试验案例，最终选中了黄金德。
The government’s lawyers seized on another phrase in the amendment — “subject to the jurisdiction thereof” — to argue that because Mr. Wong’s parents were citizens of China at the time of his birth, they were subject to the jurisdiction of the emperor of China, making their son the subject of a foreign power as well.
政府的律师抓住了修正案中的另一个词语——“受其管辖”——辩称黄金德的父母在他出生时是中国公民，他们受中国皇帝的管辖，因而他们的儿子也受外国政权的管辖。
The lawyers for Mr. Wong cited congressional debates to argue that the amendment’s authors intended for birthright citizenship to apply broadly. The exceptions made under the jurisdiction clause were very few: the children of foreign diplomats; hostile foreign forces occupying U.S. territory; and initially, some Native Americans (Congress extended citizenship to all Native Americans in 1924.)
黄金德的律师援引国会辩论来辩称，修正案的起草者意在让出生公民权得到广泛适用。根据管辖权条款作出的例外情况非常少，包括外国外交官的子女；占领美国领土的敌对外国军队；最初还包括一些印第安人（国会在1924年将公民身份扩大到所有印第安人）。
Mr. Wong’s lawyers also had an important political insight: If Mr. Wong lost his case, the U.S.-born children of white European immigrants would also be denied citizenship.
黄金德的律师还有一个重要的见解：如果黄金德败诉，那么欧洲白人移民在美国出生的子女也将被剥夺公民身份。
It was unclear how the Supreme Court would decide the case. Two years before, in Plessy v. Ferguson, the court had endorsed the “separate but equal” doctrine, giving legal backing to the Jim Crow laws that segregated and disenfranchised Black Americans in the South for decades. The court had also upheld several Chinese exclusion laws.
最高法院将如何裁决此案在当时是悬而未决的。此案两年前，在普莱西诉弗格森案中，最高法院支持了“隔离但平等”的原则，为几十年来在南方隔离黑人、剥夺其公民权的《吉姆·克劳法》提供了法律支持。法院还支持了几项排华法案。
After more than a year, the court, in a 6-2 vote, sided with Mr. Wong. In the decision, Justice Horace Gray explained that the 14th Amendment’s reference to “all persons” were words that were “restricted only by place and jurisdiction, and not by color and race.”
一年多以后，法院以6比2的投票结果支持黄金德。在判决书中，大法官霍勒斯·格雷解释说，第14修正案中提到的“所有人”是“只受地点和司法管辖的限制，而不受肤色和种族的限制”。
Since that ruling, birthright citizenship has generally been not just accepted, but also lauded as a symbol of the country’s commitment to a fundamental American value: that all people born in the United States are equal at birth, regardless of their race, religion, or the immigration status of their parents.
自那项裁决以来，出生公民权不仅被普遍接受，而且还被称赞为象征着美国对一项基本美国价值观的承诺：所有在美国出生的人，无论种族、宗教或父母的移民身份如何，都是生来平等的。
Still, there has been some dissent, especially lately, as the country has struggled with an influx of migrants.
尽管如此，尤其是近年来，随着这个国家面临移民潮的涌入，也出现了一些不同的声音。
The Trump administration’s lawyers have argued in recent court filings that birthright citizenship should extend to the children of noncitizens only if the parents are lawfully domiciled in the U.S., as Mr. Wong’s parents were at the time of his birth.
特朗普政府的律师在最近提交给法庭的文件中主张，只有当父母在美国合法居住时，非公民的子女才能获得出生公民权，正如黄金德出生时的父母状况。
The lawyers have also said that undocumented immigrants and people on temporary visas, like tourists and students, retain political allegiances to foreign governments and are thus “subject” to their “jurisdiction,” making their U.S.-born children ineligible for automatic U.S. citizenship.
律师还称，无证移民和持临时签证的人，如游客和学生，仍然在政治上效忠外国政府，因此“受到”外国政府的“管辖”，这使得他们在美国出生的孩子没有资格自动获得美国公民身份。
Rogers M. Smith, a professor emeritus of political science at the University of Pennsylvania, is among the small group of legal scholars who have argued for a narrower interpretation of the 1898 ruling. “The decision did not discuss the children of unauthorized aliens,” he said. “It’s ambiguous.”
宾夕法尼亚大学政治学荣休教授罗杰斯·史密斯是主张对1898年裁决进行狭义解释的少数法律学者之一。“这项决定没有讨论非法移民的子女，”他说。“这是模棱两可的。”
Mr. Smith said that personally, he was in favor of automatic birthright citizenship, including for the children of undocumented immigrants. And like most legal scholars, he believes that the president — Mr. Trump in this case — does not have the authority to use an executive order to decide questions under the 14th Amendment.
史密斯说，就个人而言，他支持自动出生公民权，包括无证移民的子女。和大多数法律学者一样，他认为，总统——目前是特朗普——没有权力用行政命令来裁决第14修正案中的问题。
Most legal scholars think it is unlikely that the current Supreme Court would want to reinterpret a precedent that dates back more than a century.
大多数法律学者认为，目前的最高法院不太可能想要重新解释一个多世纪以前的先例。
The constitutionality of birthright citizenship has not been a particularly ideological issue. Among those who have argued in favor of an expansive understanding of the 14th Amendment’s Citizenship Clause are John Yoo, a noted conservative law professor at the University of California, Berkeley.
出生公民权的合宪性并不是一个特别具有意识形态的问题。加州大学伯克利分校著名的保守派法学教授柳约翰(John Yoo)是支持对第14修正案公民身份条款进行宽泛理解的人之一。
There are signs, though, that the ground may be shifting.
不过，有迹象表明，形势可能正在发生变化。
Judge James C. Ho, who sits on the U.S. Court of Appeals for the Fifth Circuit and has been mentioned as a candidate for the Supreme Court, once argued forcefully in favor of automatic citizenship for nearly all U.S.-born children. But in an interview last fall, Judge Ho seemed to back away from that broad interpretation, invoking another argument that the Trump administration has cited in its recent legal filings.
曾被提名为最高法院大法官候选人的美国第五巡回上诉法院法官何俊宇(James C. Ho)曾大力主张，几乎所有在美国出生的儿童都应自动获得公民身份。但在去年秋天的一次采访中，何俊宇似乎放弃了这种宽泛的解释，他援引了特朗普政府在最近的法律文件中引用的另一个论点。
“Birthright citizenship obviously doesn’t apply in case of war or invasion,” he told an interviewer. “No one to my knowledge has ever argued that the children of invading aliens are entitled to birthright citizenship.”
“出生公民权显然不适用于战争或侵略的情况，”他告诉采访者。“据我所知，从来没有人认为入侵的外国人的子女有权获得出生公民权。”
Some scholars see something more nefarious. Erika Lee, a professor of history at Harvard University, said President Trump’s executive order on birthright citizenship needed to be seen in the broader context of his efforts to curb immigration, much as the Wong Kim Ark case came out of a period of intense anti-Chinese sentiment.
一些学者看到了更险恶的意图。哈佛大学历史学教授埃里卡·李说，特朗普总统关于出生公民权的行政命令需要放在他遏制移民努力的更大背景下看待，就像黄金德案是在强烈反华情绪时期出现的一样。
“That is, I think, a very clear parallel between then and now,” she said.
她说：“我认为，这是当时和现在非常明显的相似之处。”
Until recently, the Wong Kim Ark case was so rarely discussed publicly that even Mr. Wong’s descendants knew little about their history-making forefather. Now, the renewed debate over the decision could lead to a redefinition of what it means to be an American, and who gets to be one.
直到前不久，黄金德案还很少被公开讨论，就连黄金德的后代对他们这位创造历史的祖先也知之甚少。现在，关于这一决定的重新辩论可能导致对“美国人”身份的重新定义，以及谁有资格成为美国人。
As for Mr. Wong, after his victory in court, he — like many Chinese Americans — continued to face lengthy interrogations from federal immigration officials to prove that he was a citizen.
至于黄金德，在法庭上获胜后，他和许多华裔美国人一样，继续面临联邦移民官员的长时间盘问，以证明他是美国公民。
Eventually, he moved to China.
最后，他回到了中国。
