Rochester’s connection to birthright citizenship

Birthright citizenship – whether all children born in the United States are citizens of the country under the 14^th Amendment – is before the Supreme Court.

A Rochester lawyer and a nearly two-hundred-year-old decision from the New York Chancellor may be pivotal in its resolution.

Born and trained in Rochester, John Norton Pomeroy was the first attorney in America to test the 14^th Amendment’s “citizenship” clause in the 19^th Century, and his unsuccessful litigation theory has been revived before the high court.

Pomeroy trained with Rochester’s two future Court of Appeals Judges Addison Gardner and Harry Selkdin, published famous treatises on the Constitution and Equity and served as the dean at two of the nation’s leading law schools – New York University and Hastings Law School in California.

In 1884, he was asked by a close friend and United States Supreme Court Judge Stephen J. Field to represent the government in litigation in California to bar a Chinese man from entering the United States because he lacked citizenship.

Look Tin Sing was born to Chinese immigrants in the California. As a young man, he left California and returned to China. During this time, there was a strong anti-Chinese fervor in California. Congress passed the Chinese Exclusion Act in 1882 to thwart further Chinese immigrants and barred Chinese natives from citizenship.

In the midst of the swirling debate over Chinese immigration, Look Tin Sing returned to California, but he was intercepted and denied entry because authorities claimed he was not a citizen.

Look relied on the wording of the 14^th Amendment as ratified in 1868. The amendment reads:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States …

In the debate in 1884 – and one that has been rekindled today – there was a question whether the amendment simply embodied the common law rules of citizenship by birth.

There was a common law precedent in New York. In 1844, the Vice-chancellor in New York held that a woman born in New York in 1819 of alien parents was a citizen of the United States. Lynch v. Clarke, 1 Sandf. 583 (1844).

When Look came to federal court, the issue of apparent first impression was whether the phrase “subject to the jurisdiction” of the United States in the Amendment somehow exempted children of parents who were not themselves citizens.

Supreme Court Justice Stephen J. Field, at the time a member of the United States Supreme Court and a good friend of Pomeroy’s, presided in the circuit court and invited Pomeroy to argue the government’s case, one of first impression under the Amendment.

Pomeroy was recruited because of his work in constitutional matters and his publications advocating for states right under the Constitution. Pomeroy argued that the 14th Amendment and the 1866 Civil Rights Act provisions only applied to born to parents “subject to the jurisdiction” of the United States and Look’s parents were aliens, “not subject to the jurisdiction” of the United States and hence, Look was not a citizen.

In a newspaper account of his argument before the Court, Pomeroy’s nativist instincts emerged. He claimed citizens of color were “a threat” and argued that “yellow and brown races” were unable to assimilate. Pomeroy presented a theory that the children of aliens whose birth occurs in America soil are invested solely with the national character of the parent.

Field, appointed to the Court by Abraham Lincoln, was a states rights Democrat and, and as his later opinion in Chae Chan Ping v. U.S. (Chinese Exclusion Case), 130 U.S. 581 (1889) indicates, he harbored strong antipathy to Chinese immigrants, claiming in that case they were a “great danger” to the county.

But for Fields, whatever his personal views, the 14^th Amendment’s text required that he reject Pomeroy’s claims in In re Look Tin Sing. The Justice strictly read the language and legislative history of the Amendment granting citizenship to anyone born in the country. He held that Pomeroy’s theory would “close the rights of citizenship upon thousands of native-born persons of Irish, English and German parentage” which “would cause great dissension in this country and would prove fatal to any efforts to check Chinese immigration.”

Field did not cite to any prior cases under the 14th Amendment but cited the common law rule from New York in Lynch v. Clarke as the sole precedent. Field and his colleagues unanimously established an authoritative precedent: children of foreign parents born in the United States were citizens under the 14th amendment. In re Look Tin Sing, 21 F.905 (Cir.Ct. Cal. 1884).

More than a decade later, the Supreme Court confirmed Field’s conclusion in United States v. Wong Kim Ark, 169 U.S. 649 (1897), holding that children born in the United States were citizens under the 14th Amendment. That precedent, mirroring Justice Field’s constitutional reading in Look Tin Sing, remains the law today, although it is challenged by an executive order. See e.g., Doe v. Trump, 2025 U.S. App. LEXIS 25780 (1st Cir. Oct. 3, 2025) (reaffirming the rule in United States v. Wong Kim Ark).

Pomeroy’s argument – that the “subject to the jurisdiction” language in the 14^th Amendment does not grant citizenship to children born to non-citizens in the United States — has been exhumed before the High Court.

Rejected 140 years ago, the argument will get a second bite at the apple under the 14^th Amendment in the near future.

Hon. Richard A. Dollinger is a retired Court of Claims Judge and former state Senator from Rochester.