when revealed, a clear undeniable holding and binding
precedent established by the highest Court of our nation which specifically
defines an Article 2 Section 1 natural-born citizen as a person born in the US
to parents who are citizens.
Therefore, Obama – according to US Supreme Court precedent – is not eligible to
be President.
PRECEDENT ESTABLISHED BY MINOR V. HAPPERSETT
The direct US Supreme Court precedent is stated in
Minor v. Happersett,
88 U.S. 162 (1875). Furthermore, the precedent stated in
Minor
is consistent with other US Supreme Court cases – both before and after
Minor
– which discuss the natural born citizen issue.
While that part of the holding in Minor regarding woman’s
suffrage was superseded by the 19th Amendment -
which Constitutionally established a
woman’s right to vote – the rest of the case is good law.
[UPDATED Dec. 15, 2011 - The voting rights issue was
not superseded by the 19th Amendment, and it remains good law today.
Please see JUSTIA.COM SURGICALLY REMOVED “MINOR v HAPPERSETT” FROM
25 SUPREME COURT OPINIONS IN RUN UP TO ’08 ELECTION. ]And the
remaining precedent stated regarding the definition of “natural-born citizen” –
with regard to Article 2 Section 1 of the US Constitution – is still binding
upon all lower courts.
Therefore, lower court decisions – such as the
holding in
Ankeny v. Governor of the State
of Indiana – which have misconstrued the US Supreme Court’s holding in
Minor
v. Happersett are wrong. Below, we will review what the Indiana
Court of Appeals had to say and explain why they got it wrong. But first
we must revisit
Minor v. Happersett.
THE SUPREME COURT IN MINOR V. HAPPERSETT DIRECTLY CONSTRUED THE US
CONSTITUTION’S ARTICLE 2 SECTION 1 NATURAL BORN CITIZEN CLAUSE
Before revisiting Minor, we must revisit
Wong
Kim Ark, 169 U.S. 649 (1898) to review a clearly erroneous statement
made by Justice Gray concerning the prior holding in the Minor case:
“In Minor v. Happersett, Chief Justice Waite, when construing, in behalf of
the court, the very provision of the Fourteenth Amendment now in question,
said: ‘The Constitution does not, in words, say who shall be natural-born
citizens. Resort must be had elsewhere to ascertain that.’ “ (Wong
Kim Ark at 655.)
This unfortunate remark by Justice Gray contains a clearly erroneous
statement. The Supreme Court in Minor did
not construe the 14th
Amendment as to the issue of citizenship. Gray is absolutely wrong.
The Court in Minor construed Article 2 Section 1, not the 14th Amendment.
For over a century, it has been wrongly assumed that the Court in Minor did
construe
the 14th Amendment, and that the holding of Minor was later superseded by Wong
Kim Ark. This is not correct.
A more careful reading of the Supreme Court’s opinion in Minor makes it clear
that it did
not construe the 14th Amendment with regard to the
citizenship of the woman who wished to vote. The question presented was
whether, since the adoption of the 14th Amendment, women had gained the right
to vote. The Supreme Court in Minor held that nowhere in the
Constitution, including the 14th Amendment, was anyone, man or woman, granted a
right to vote. And it was
only this part of the Minor case which
was superseded by the 19th Amendment.
The other issue decided by the Court in Minor required the Supreme Court to
determine if the woman was, in fact, a US citizen. As to this
determination, the Court did
not construe the 14th Amendment. In
fact, the Court specifically
avoided construing the 14th Amendment
with regard to her citizenship. Instead, the Supreme Court in Minor chose
to construe Article 2 Section 1:
“There is no doubt that women may be citizens. They are persons, and by the
fourteenth amendment ‘all persons born or naturalized in the United States and
subject to the jurisdiction thereof ‘ are expressly declared to be ‘citizens of
the United States and of the State wherein they reside.’ But,
in our opinion, it did not need this amendment to give them that position …
“The fourteenth amendment did not affect the citizenship of women any more
than it did of men. In this particular, therefore, the rights
of Mrs. Minor do not depend upon the amendment. She has always
been a citizen from her birth, and entitled to all the privileges and
immunities of citizenship. The amendment prohibited the State,
of which she is a citizen, from abridging any of her privileges and immunities
as a citizen of the United States; but it did not confer citizenship on her.
That she had before its adoption. If the right of suffrage is
one of the necessary privileges of a citizen of the United States, then the
constitution and laws of Missouri confining it to men are in violation of the
Constitution of the United States, as amended, and consequently void. The
direct question is, therefore, presented whether all citizens are necessarily
voters. (Emphasis added.)
There you have it. The Court stops short of construing the 14th Amendment
as to whether the woman in question was a US citizen. The Court made a
certain, direct determination that Mrs. Minor was a US citizen before the
adoption of the 14th Amendment and that she did not need the 14th Amendment to
be a US citizen.
The Court then, having determined that she was a US citizen, avoided any
construction of the 14th Amendment as to her citizenship status.
Therefore, the holding in Minor is in no way superseded by Wong Kim Ark.
The Court in Minor went on to decide the issue of whether citizens are granted
a right to vote by the Constitution, holding that it did not. Again, this
part of the holding was superseded by the 19th Amendment, but the determination
that Mrs. Minor was a “natural-born citizen” is still controlling precedent.
Since the Court in Minor specifically avoided construing the 14th Amendment as
to citizenship, it is clear that Justice Gray’s statement – concerning the
citizenship passage by Justice Waite in Minor – was clearly erroneous.
The Supreme Court in Minor chose to construe Article 2 Section 1 instead of the
14th Amendment. As such, Minor is the only US Supreme Court case which
has directly construed the Article 2 Section 1 natural-born citizen clause.
Therefore, Minor’s construction below creates binding legal precedent:
“Additions might always be made to the citizenship of the United States in
two ways: first, by birth, and second, by naturalization. This is apparent from
the Constitution itself, for it provides that ‘no person except a
natural-born citizen, or a citizen of the United States at the time of the
adoption of the Constitution, shall be eligible to the office of President,‘
and that Congress shall have power ‘to establish a
uniform rule of naturalization.’ Thus new citizens may be born or they may be
created by naturalization.
“The Constitution does not, in words, say who shall be natural-born
citizens. Resort must be had elsewhere to ascertain that. At common-law, with
the nomenclature of which the framers of the Constitution were familiar, it was
never doubted that all children born in a country of parents
who were its citizens became themselves, upon their birth, citizens also. These
were natives, or natural-born citizens, as distinguished from aliens or
foreigners. Some authorities go further and include as citizens
children born within the jurisdiction without reference to the citizenship of
their parents. As to this class
there have been doubts, but never as to the first. For the purposes of this
case it is not necessary to solve these doubts. It is sufficient for everything
we have now to consider that all children born of citizen parents within the
jurisdiction are themselves citizens.“
(Emphasis added.)
Whether the holding here was influenced by Vattel is not truly important.
Sure, it looks just like Vattel’s definition, but Vattel does not make legal
precedent – the US Supreme Court does. All that matters here is what the
Supreme court held. So we must carefully examine the actual words stated
by the Supreme Court. We must not allow ourselves to be guided by what
the Supreme Court did
not say. What the Court actually said is
what makes law.
In the above passage, the Court noted that Mrs. Minor was born in the US to
parents who were citizens. The Court stated that such persons were
“natural-born citizens”. The Court also stated – as to such persons –
that their “citizenship” was never in doubt.
By recognizing Mrs. Minor as a member of the class of persons who were
natural-born citizens, they established her citizenship. Establishing her
citizenship was required before they could get to the issue of whether she had
the right to vote.
In doing so, the Court in Minor directly
construed Article 2 Section 1 of the US Constitution.
The Court also noted that some authorities include as “citizens” those born in
the jurisdiction without reference to the citizenship of the parents. The
Court refers to these people as a different “class”. The Court in Minor
refused to comment on the “citizenship” of such persons since Mrs. Minor was
not in that
class. They didn’t need to reach the 14th Amendment
to determine if Mrs. Minor was a US citizen since the Court previously
established that she was a “natural-born citizen”. Read the following
again:
“It is sufficient for everything we have now to consider that all children
born of citizen parents within the jurisdiction are themselves citizens.“
This class is specifically defined as “natural-born citizens” by the
Court. The other class – those born in the US without citizen “parents” –
may or may not be “citizens”.
But the Minor Court never
suggested that this other class might also be natural-born citizens.
It’s quite the opposite. The Minor Court makes clear that this class are
not Article 2 Section 1 natural-born citizens.
If this
other class were natural-born there would be no doubt as to their citizenship.
The Minor Court refrained from making a “citizenship” determination as to that
class, but the Court did note that they were a
different class.
Later, in 1898, the Court in Wong Kim Ark took the question on directly as to
who is a
citizen under the 14th Amendment, but that case did not
directly construe Article 2 Section 1, whereas Minor did.
In order to avoid construing the 14th Amendment, the Court in Minor had to
define those who fit into the class of “natural-born citizens”. Mrs.
Minor fit into that class. Mr. Obama does not.
This is so very evident by the fact that the Minor Court specifically states
that the “citizenship” of those who have non-citizen parents was historically
subject to doubt. Whether the 14th Amendment nullified those doubts was
irrelevant to the Court in Minor, since Mrs. Minor was a natural-born citizen.
The 14th Amendment specifically confers
only “citizenship”. In
Minor, the US Supreme Court directly recognized that natural-born citizens were
a class of citizens who did
not need the 14th Amendment to establish
citizenship. The class of natural-born citizens was perfectly defined in
the Minor case.
Therefore, we have a direct determination by the US Supreme Court which defines
a
natural-born citizen as a person born in the US to parents who are
citizens. The citizenship of this class has never been in doubt.
The citizenship of the other class was in doubt. But even if that doubt
was erased –
as to their citizenship – that they are
not
natural-born citizens was established as precedent by the Supreme Court in
Minor. In order for that precedent to be reversed, one of two things are
necessary:
- a Constitutional amendment which specifically defines “natural-born Citizen”
more inclusively than Minor did , or;
- a Supreme Court case which overrules the definition of natural-born citizen
in the Minor case
We have neither.
Minor was decided seven years
after the adoption of the 14th
Amendment. The Supreme Court in Minor did not consider anyone but those
born of citizen parents on US soil to be natural-born citizens. Later, in
Wong Kim Ark, the Supreme Court stated that persons born on US soil to (some)
alien parents were “citizens”, but that case specifically construed only the
14th Amendment.
Read again Justice Gray’s statement as to Minor, “
In Minor v. Happersett,
Chief Justice Waite, when construing, in behalf of the court, the very
provision of the Fourteenth Amendment now in question, said…“
Nope. Not true. Gray was wrong in that Justice Waite did not
construe the 14th Amendment in the quoted passage. Chief Justice Waite
construed Article 2 Section 1. Whereas, Justice Gray construed the 14th
Amendment. Therefore, the two cases are not in conflict.
ANKENY V. GOVERNOR OF THE STATE OF INDIANA
The Minor case has been severely misconstrued in the
Ankeny opinion issued by the Indiana Court of
Appeals. That court quoted Minor’s natural-born citizen language, then
stated:
“Thus, the Court left open the issue of whether a person who is born within
the United States of alien parents is considered a natural born citizen.”
False. The Minor Court did
not leave that question
open. Nowhere in the Minor opinion does it state that the class of
persons who are natural-born citizens is an open question. The Ankeny Court has
it backwards.
The Supreme Court in Minor stated that the “citizenship” of persons who
were not natural born citizens was an open
question.
That is the most important sentence I’ve ever written at this blog. So
please read it again.
The “citizenship” of those born to non-citizen parents was a question that the
Minor Court avoided. But they avoided that question by directly
construing Article 2 Section 1. In doing so, the Supreme Court in Minor
defined the class of persons who were born in the US to citizen parents as
“natural-born citizens”.
Since Minor, no Amendment has been adopted which changes that definition, and
no other Supreme Court case has directly construed Article 2 Section 1.
The Supreme Court in Wong Kim Ark only construed the question of who was a
“citizen” under the 14th Amendment, it did not construe Article 2 Section
1. Therefore, Minor and Wong Kim Ark do not compete with each other at
all. Minor is the standing precedent for construction of the natural-born
citizen clause in Article 2 Section 1, and Wong Kim Ark is the standing
precedent as to “citizenship” under the 14th Amendment.
WONG KIM ARK SPECIFICALLY DEFERRED TO PRIOR PRECEDENT REGARDING THE
DEFINITION OF NATURAL BORN CITIZEN.
That the majority opinion in Wong Kim Ark limited its holding strictly to the
issue of 14th Amendment
said…“ Nope. Not true. Gray
was wrong in that Justice Waite did not construe the 14th Amendment in the
quoted passage. Chief Justice Waite construed Article 2 Section 1.
Whereas, Justice Gray construed the 14th Amendment. Therefore, the two
cases are not in conflict.
ANKENY V. GOVERNOR OF THE STATE OF INDIANA
The Minor case has been severely misconstrued in the
Ankeny opinion issued by the Indiana Court of
Appeals. That court quoted Minor’s natural-born citizen language, then
stated:
“Thus, the Court left open the issue of whether a person who is born within
the United States of alien parents is considered a natural born citizen.”
False. The Minor Court did
not leave that question open.
Nowhere in the Minor opinion does it state that the class of persons who are
natural-born citizens is an open question. The Ankeny Court has it
backwards.
The Supreme Court in Minor stated that the “citizenship” of persons who
were not natural born citizens was an open
question.
That is the most important sentence I’ve ever written at this blog. So
please read it again.
The “citizenship” of those born to non-citizen parents was a question that the
Minor Court avoided. But they avoided that question by directly
construing Article 2 Section 1. In doing so, the Supreme Court in Minor
defined the class of persons who were born in the US to citizen parents as “natural-born
citizens”.
Since Minor, no Amendment has been adopted which changes that definition, and
no other Supreme Court case has directly construed Article 2 Section 1.
The Supreme Court in Wong Kim Ark only construed the question of who was a
“citizen” under the 14th Amendment, it did not construe Article 2 Section
1. Therefore, Minor and Wong Kim Ark do not compete with each other at
all. Minor is the standing precedent for construction of the natural-born
citizen clause in Article 2 Section 1, and Wong Kim Ark is the standing
precedent as to “citizenship” under the 14th Amendment.
WONG KIM ARK SPECIFICALLY DEFERRED TO PRIOR PRECEDENT REGARDING THE
DEFINITION OF NATURAL BORN CITIZEN.
That the majority opinion in Wong Kim Ark limited its holding strictly to the
issue of 14th Amendment
citizenship – and did not make any new determination as to Article 2 Section 1
– is evident from the following statement by Gray regarding the
dissent
by Justice Curtis in the Supreme Court’s earlier ruling in
Dred Scott
v. Sandford:
“In Dred Scott v. Sandford, (1857) 19 How. 393,
Mr. Justice Curtis said:
‘The first section of the second article of the Constitution uses the
language, ‘a natural-born citizen.’ It thus assumes that citizenship may be
acquired by birth. Undoubtedly, this language of the Constitution was used in
reference to that principle of public law, well understood in this country at
the time of the adoption of the Constitution, which referred citizenship to the
place of birth.’
19 How. 60 U. S. 576. And, to this extent, no
different opinion was expressed or intimated by any of the other judges.”
At first glance, Gray’s reliance upon the dissent’s passage in the Dred Scott
case would appear to contradict everything I have written above. But it
doesn’t.
It actually confirms my analysis.
Justice Gray chooses his words carefully and so we must examine them
carefully. Note where Gray says,
“And, to this extent, no different
opinion was expressed or intimated by any of the other judges.”
Well, if we are talking
only about “citizenship”, then –
to this
extent – Justice Gray is correct. But if we are talking about the
definition of a “natural-born citizen”, then Gray is grossly mistaken.
The Dred Scott majority may not have expressed a different opinion as to
“citizenship”, but the majority’s definition of a natural-born citizen is
vastly different than that of Justice Curtis in his dissent. The majority
opinion in Dred Scott, citing Vattel directly, stated:
“The citizens are the members of the civil society, bound to this society
by certain duties, and subject to its authority; they equally participate in
its advantages. The natives or natural-born citizens are those born in the
country of parents who are citizens. As society cannot perpetuate itself
otherwise than by the children of the citizens, those children naturally follow
the condition of their parents, and succeed to all their rights.”
Again:
“I say, to be of the country, it is necessary to be born of a person who is
a citizen, for if he be born there of a foreigner, it will be only the place of
his birth, and not his country. The inhabitants, as distinguished from citizens,
are foreigners who are permitted to settle and stay in the country.”
Vattel, Book 1, cap. 19, p. 101.
From the views here expressed, and they seem to be unexceptionable…”
Unexceptionable is
defined as; ”
not open to any objection or criticism.”
The Supreme Court majority, in the Dred Scott case, clearly states that a
natural-born citizen is a person born in the US to parents who are
citizens. Therefore, Justice Gray’s reliance upon the dissent in the Dred
Scott case is strictly limited to its discussion of “citizenship” by Gray’s
very choice of the words, “to this extent”.
Since Gray stated that none of the other justices in the Dred Scott case
expressed a different opinion than Curtis did in his dissent, it is obvious
that Gray’s statement
only applies to general citizenship, and not to
the definition of those who fall into the class of natural-born citizens.
The majority in Dred Scott did, in fact, express a completely different
opinion than Curtis on the issue of who was an Article 2 Section 1 natural-born
citizen.
Gray’s use of the words, “to this extent” – with regard to the dissent by
Curtis – indicates that the
extent to which the holding in Wong Kim
Ark applies is to the definition of “citizenship”, not to the definition of who
is a natural-born citizen eligible to be President. The precedent stated
by the Court in Minor still stands to this day.
THE US SUPREME COURT DEFINITION OF PRECEDENT
In 1996, the US Supreme Court’s majority opinion by Justice Breyer in
Ogilvie
Et Al., Minors v. United States, 519 U.S. 79 (1996), stated that
when the Court discusses a certain “…reason as an ‘independent’ ground in
support of our decision”, then that reasoning is not simply dictum:
“Although we gave other reasons for our holding in Schleier as well, we
explicitly labeled this reason an ‘independent’ ground in support of our
decision, id., at 334. We cannot accept petitioners’ claim that it was simply a
dictum.”
The Supreme Court in Minor specifically construed Article 2 Section 1 by
defining – as natural-born citizens – those persons born in the US to parents
who were citizens.
Again, the Supreme Court specifically avoided the 14th Amendment, by
specifically construing Article 2 Section 1.
In order to determine whether Mrs. Minor had the right to vote, the Court
first needed to determine if she was a US citizen. They determined that
she was a citizen because she was in the class of “natural-born
citizens”. And, in doing so, they made it clear that persons born of
non-citizen parents were not natural-born citizens.
The Court left open the question of whether those born of non-citizen parents were
“citizens”. But the Court did not leave open their specific construction
of Article 2 Section 1. Their definition of a “natural-born citizen” was
the core reason they found Mrs. Minor to be a citizen. Therefore, the
Minor Court established binding precedent as follows:
“…[A]ll children born in a country of parents who were its citizens became
themselves, upon their birth, citizens also. These were natives, or natural-born
citizens, as distinguished from aliens or foreigners...”
Please also note that the Court here makes specific reference to both aliens
and foreigners as distinguished from natural-born citizens. Aliens are
just that, aliens. They are not citizens. But we have always had
many foreigners in this country who were citizens. Those who came here
from foreign lands were foreigners naturalized as citizens. Some who were
born in the US with dual citizenship – like Obama – were also citizens of the
nation of their parents. These are citizens, but also foreigners.
The Court in Minor made the careful distinction that a
natural-born citizen
is not an alien
or a foreigner.
CITIZENS MAY BE BORN OR NATURALIZED
A common misconception of those who argue in favor of Obama’s eligibility
is that if one is, at the time of their birth, a US
citizen, then that
person is also a
natural-born citizen. False. This was
unequivocally established by the majority holding in Minor, which states:
“Additions might always be made to the citizenship of the United States in
two ways: first, by birth, and second, by naturalization. This is apparent from
the Constitution itself, for it providesthat ‘no person except a natural-born
citizen, or a citizen of the United States at the time of the adoption of the
Constitution, shall be eligible to the office of President,’and that Congress
shall have power ‘to establish a uniform rule of naturalization.’ Thus new
citizens may be born or they may be created by naturalization.”
Again, at first glance this appears to provide a neat little soundbite for
Obama supporters. But it doesn’t. The quote above is taken out of
context. The Court’s opinion goes on to state:
“Under the power to adopt a uniform system of naturalization Congress, as
early as 1790, provided…that the children of citizens of the United States that
might be born beyond the sea, or out of the limits of the United States, should
be considered as natural-born citizens. These
provisions thus enacted have, in substance, been retained in all the
naturalization laws adopted since.”
Here, the Minor Court cites the first naturalization act of 1790 to the effect
that persons born of US citizen parents –
outside the jurisdiction of the
US – are “considered as natural-born citizens”. So, here we can see
that while the Minor Court only recognizes two paths to citizenship, birth and
naturalization… it is clear that some persons who, at the time of their birth,
are US citizens, require naturalization for such status.
So, it’s clear that while there are only two paths to US citizenship, birth and
naturalization, those two paths sometimes merge. But naturalized citizens
are not eligible to be President. (The Minor Court failed to mention that
the words “natural-born” were repealed from the naturalization act of 1795.)
Additionally, the current US Department of State Foreign Affairs Manual, at “
7 FAM 1131.6-2 Eligibility for Presidency“,
comments on the 1790 act as follows:
“This statute is no longer operative, however, and its formula is not
included in modern nationality statutes. In any event, the fact that someone is
a natural born citizen pursuant to a statute does not necessarily imply that he
or she is such a citizen for Constitutional purposes.”
This is most likely because the statute did not actually deem such a person
to
be a natural-born citizen, the act simply stated that such a person was to
be “considered as” a natural-born citizen.
The Minor Court also noted that the “substance” of the 1790 act, which granted
US citizenship at birth via naturalization, had remained as law up until 1875
when the Minor case was decided. So, clearly, while citizens may either
be born or naturalized, some born citizens are simultaneously naturalized at
birth. Naturalized citizens are not natural-born citizens. Therefore,
they are not eligible to be President.
I am not arguing that Obama was naturalized. But Minor does establish
that not all “born citizens” are “natural-born”. Minor also gives an
unequivocal definition of who fits into the class of natural-born citizens.
Obama does not fit into that class. Born in the US to a citizen mother
and a British/Kenyan father, Obama was born with dual nationality and dual
allegiance, part US citizen, part foreigner. Minor makes a clear
distinction between natural-born citizens and aliens or foreigners.
No Constitutional amendment supersedes Minor by defining natural-born citizen
in a more inclusive way. No US Supreme Court case has overruled it.
Justice Gray’s statement that the Court in Minor construed the 14th Amendment
in the passage quoted is wrong. The Court in Minor directly construed
Article 2 Section 1 while directly avoiding construction of the 14th Amendment.
The Supreme Court in Wong Kim Ark directly construed the 14th Amendment and
specifically avoided construction of Article 2 Section 1. The two cases
are not in contradiction. They are consistent.
Wong Kim Ark is specifically limited to determining who is a citizen
under the 14th Amendment.
Minor is specifically limited to determining who is a US citizen, natural-born.
According to the US Supreme Court precedent established by Minor, Obama is not
eligible to the office of President of the United States.
