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Donofrio gets it wrong in nearly every respect. First, of course, the antecedent of "class" in MvH is not "citizen", it's "children". MvH is not talking about two classes of citizen, it's talking about two classes of children: the first class of children, jus soli and jus sanguinis, are universally acknowledged as citizens. As to the second class of children, those born jus soli alone, there is some disagreement as to whether they, too, are citizens, but never mind: voting rights don't devolve from the 14th amendment, so it's all dicta anyway. And, unfortunately for Donofrio, you don't build legal arguments out of dicta.

This is one of the strangest rebuttals I've seen. You think it means two classes of children and not two classes of citizens?? As worded, one class of children are NBCs and the others are not. If what you think is true, then the court is saying there are doubts that the second class are children, rather than there are doubts that they are citizens. That makes no sense.

As for it just being dicta, the evidence disputes this. Justice Gray cited the dicta from Minor and followed it as guidance in the Wong Kim Ark decision. He noted that the Supreme Court was "committed to the view that all children born in the United States of citizens or subjects of foreign States were excluded from the operation of the first sentence of the Fourteenth Amendment ..." and then cited the Minor definition of natural born citizen, explaining how it was used to declare Virginia Minor to be a citizen. From that point forward in the WKA decision, Gray focused on how to interpret the birth and subject clause of the 14th amendment to apply to a person who was NOT born to citizen parents. Had Justice Waite accepted Virginia Minor's claim of being a 14th amendment citizen, there would have been no need for Gray to proceed beyond his citatioon of Minor in the WKA decision. Minor set a precedent that could NOT be used in application to a person NOT born to citizen parents.

Of course it means two classes of children. One class is "all children born in a country of parents who were its citizens." The second is "children born within the jurisdiction without reference to the citizenship of their parents." It doesn't take a law degree, just the ability to read plain English, to figure that one out.

The court isn't distinguishing between two kinds of citizens here. It did that in the previous paragraph:

the Constitution itself...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.

So they just got finished saying that there are only two classes of citizens: born citizens and naturalized citizens. The next paragraph isn't further subdividing "born citizens," it's just noting that "born in the country of citizen parents" definitely means "born citizen," while "born within the jurisdiction without reference to the citizenship of their parents" might or might not mean "born citizen." But there's still only one kind of "born citizen," and it means the same as "native" or "natural born."

Had Justice Waite accepted Virginia Minor's claim of being a 14th amendment citizen

You are misreading the complaint. Based on a provision of the Missouri state constitution which declared "Every male citizen of the United States shall be entitled to vote," Reese Happersett, a Missouri state registrar, had refused to allow Virginia Minor to register to vote, "assigning for cause that she was not a 'male citizen of the United States,' but a woman."

Note that Missouri was explicitly denying suffrage not on the charge that Minor wasn't a citizen, but that she wasn't a he.

So Minor sued, complaining that because she was a citizen the Missouri provision was in violation of her 14th Amendment guarantee to "privileges and immunities of citizens", one of which was suffrage. At no point from the original pleading through the Supreme Court ruling was Minor's citizenship ever questioned, nor was she ever called upon to defend it.

Here's the opening sentence of Minor v Happersett:

The question is presented in this case whether, since the adoption of the Fourteenth Amendment, a woman who is a citizen of the United States and of the State of Missouri is a voter in that state notwithstanding the provision of the constitution and laws of the state which confine the right of suffrage to men alone.

Note what Waite states the question put before the Court to: not "Is a woman a citizen?" but "Is a a woman who is a citizen entitled to suffrage?" Minor said, "yes" because suffrage was one of the "privileges of citizens" guaranteed by the 14th Amendment. Had Minor's citizenship not been assumed at any point along the way, in fact, her suit would quite possibly have simply been dismissed on lack of standing.

Waite continues:

From the opinion [of the Missouri Supreme Court], we find that [this question] was the only one decided in the court below, and it is the only one which has been argued here. The case was undoubtedly brought to this Court for the sole purpose of having that question decided by us, and in view of the evident propriety there is of having it settled, so far as it can be by such a decision, we have concluded to waive all other considerations and proceed at once to its determination.

The only question asked and answered in MvH is whether suffrage was one of the 14th Amendment "privileges". So said Waite. Minor's citizenship was never questioned, and the Supreme Court had no intention of answering it in any other fashion than by simply assuming it.

Here's the full text of Minor v. Happersett so you can check my citations:

http://supreme.justia.com/us/88/162/case.html

If you have a source that reads Minor differently, I'd love to see it.