Minor V. Happersett Is Binding Precedent As To The Constitutional Definition Of A Natural Born Citizen.

[This is a follow up to my last report, US SUPREME COURT PRECEDENT STATES THAT OBAMA IS NOT ELIGIBLE TO BE PRESIDENT. ]

Since my last report, many people have asked why the definition in Minor v. Happersett of a “natural-born citizen” (as a person born in the US to parents who are citizens) is binding legal precedent.  The answer is in the Court’s holding that Virginia Minor was a US citizen…because she was born in the US to parents who were citizens.  That part of the actual holding is listed in the official syallbus of the case.

And furthermore, Minor was the first case to hold that women are equal citizens to men.  To this day, that case is still cited as the first US Supreme Court decision which recognized that women were, in fact, citizens.  It is still precedent for that determination.  Google [ "minor v happersett" "women are citizens"  ] and review the results.  A multitude of articles discuss the holding of Minor – that women are US citizens.

But most important is the case itself.  The official syllabus written by the US Supreme Court states:

“1. The word “citizen ” is often used to convey the idea of membership in a nation.

2. In that sense, women, if born of citizen parents within the jurisdiction of the United States, have always been considered citizens of the United states, as much so before the adoption of the Fourteenth Amendment to the Constitution as since.”  (Emphasis added.)

That’s a direct holding of the case.  Hence, it is stated at the the top of the syllabus.

It is incorrect to state that Mrs. Minor lost the case entirely.  This is not true.  The US Supreme Court did not hold that the Constitution granted voting rights to men while denying such rights to women.  The Court in Minor held that the Constitution did not grant anybody a right to vote, man or woman.

But in doing so, the US Supreme Court first had to determine if Mrs. Minor was a US citizen.  The Court’s holding states that she was a US citizen because she was born in the US to parents who were citizens.

The Court also held that the Constitution did not grant anyone a right to vote.  So, our country chose to amend the Constitution by the 19th Amendment and thereafter all citizens were directly granted a right to vote by the Constitution.

But the Court in Minor did make a direct holding that Mrs. Minor was, in fact, a US citizen.  The Court established her citizenship by definining the “class” of  “natural-born citizens” as those born in the US to parents who were citizens.  Then the Court included Virginia Minor in that class thereby deeming her to be a US citizen.  And they did this by specifically avoiding the 14th Amendment and by specifically construing Article 2 Section 1.

Before moving on to the issue of whether citizens have the right to vote, the Supreme Court in Minor stated their holding as to the citizenship of Mrs. Minor (and therefore as to all women and men):

“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.”  (Emphasis added.)

The independent ground the Court used to determine that Virginia Minor was a US citizen is stated as follows:

“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,’ …

“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.)

Read that passage very carefully, and you will see that the US Supreme Court clearly defined “natural-born citizen” by two independent remarks:

1.  “…all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also.”  First, the Court states that these persons are “citizens”.  But then it makes a second statement about this class -

2. “These were natives or natural-born citizens, as distinguished from aliens or foreigners.”  This class of citizens are part of a class defined as “natural-born citizens”.  They are citizens, natural-born.  This distinguishes them from all other citizens.  If this were not the case, it would have been sufficient for the Court to stop at the first statement concerning their citizenship.

But the Court didn’t stop there. Because the Court was avoiding the 14th Amendment, the Court went to the second step and defined this class to be different from all other citizens.  This class did not require the 14th Amendment to be US citizens.

Whether persons born in the US to non-citizen parents were “citizens” was not a question before the Minor Court because Mrs. Minor was natural-born, whereas Wong Kim Ark was not.  The determination of his citizenship required the 14th Amendment, whereas Mrs. Minor’s did not.

It was held that Mrs. Minor was a US citizen – as the syllabus states in point 2 – because she was born in the US to parents who were citizens.  This was the independent ground that springs forth precedent.  (See Ogilvie Et Al., Minors v. United States, 519 U.S. 79 at 84 (1996)).

JUDICIAL RESTRAINT

It’s important to note that the Supreme Court in Minor did not hold that all women born in the US were citizens.  Only those born to citizen parents in the US were deemed to be citizens by the Court in Minor.

Since the Court was not required to construe the 14th Amendment – as to Mrs. Minor’s citizenship – the Court refrained from doing so.  Instead, the Court construed Article 2 Section 1 as an independent ground by which the Court determined that Mrs. Minor was a natural-born citizen since she had been born in the US to parents who were citizens.

Those outside the natural-born citizen “class” were subject to doubt regarding US citizenship.  And the Court in Minor exercised judicial restraint by avoiding that issue.  When Wong Kim Ark was decided in 1898, some of those doubts were resolved in favor of US citizenship for those persons not in the class of natural-born citizens.  But that case did not open the class of natural-born citizens to include persons born in the US without citizen parents.

With regard to this being binding precedent, the important point here is that Virginia Minor’s citizenship had to be established by the Court before it could move on to the voting issue.  Establishing her citizenship was part of the holding.  Had Mrs. Minor not been determined by the Supreme Court to be a US citizen, the Court would not have reached the issue of whether US citizens are granted a right to vote.  The Court would have exercised the same judicial restraint it exercised in avoiding the 14th Amendment issue.

WONG KIM ARK DID NOT EXPAND THE CLASS OF NATURAL BORN CITIZENS.

The Court in Wong Kim Ark did not expand the class of natural-born citizens defined in Minor.  The simplest way to put it is thus:

If Wong Kim Ark had been a natural-born citizen, then the Supreme Court would never have reached the 14th Amendment issue (just as it didn’t reach it in Minor.) 

That is the simplest way to accurately state the issue.  Read it again:

If Wong Kim Ark had been a natural-born citizen, then the Court would never have reached the 14th Amendment issue (just as it didn’t reach it in Minor.)

Since Wong Kim Ark didn’t fit into the class of natural-born citizens as defined by Minor, the Court looked to the 14th Amendment to grant him US citizenship.

HOLDING EQUALS PRECEDENT

The direct holding of the Supreme Court in Minor set a binding precedent.  Those pretending that the Supreme Court’s direct construction and definition (in Minor) of the natural-born citizen clause is dicta are mistaken.  They need review the first two points of the syllabus, which state:

“1. The word “citizen ” is often used to convey the idea of membership in a nation.

2. In that sense, women, if born of citizen parents within the jurisdiction of the United States, have always been considered citizens of the United states, as much so before the adoption of the Fourteenth Amendment to the Constitution as since.”  (Emphasis added.)

Check the words “if born of citizen parents” again.  They are stated at the very top of the syllabus and more than once in the Opinion of the Court.  This is a direct holding of the case.  It is clearly precedent.  For it not to be precedent, the Court could not have held that Mrs. Minor was a US citizen.  But since that determination was part of the holding, the grounds by which they made that determination are precedent, not dicta.

The recognition of US Supreme Court precedent excluding Obama from POTUS eligibility is a theoretical game changer.  This places a permanent asterisk* upon his administration’s authority.  It may lead to multiple challenges against official actions of his administration.

If he wishes to be a true statesman to this nation, President Obama ought to directly petition the US Supreme Court for a declaratory judgment as to his eligibility rather than let the asterisk fester.

Leo Donofrio, Esq.

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