Revisiting Minor v. Happersett

The Post & Email Newspaper ^ | 17 Jul 2023 | Joseph DeMaio

[CDR Kerchner]

(Jul. 17, 2023) — Well, faithful P&E readers, here we go again. As another “exploratory” candidate for president appears on the scene – Dr. Shiva Ayyadurai –, it may be prudent to once again revisit the Supreme Court’s 1875 decision in Minor v. Happersett.

While the major holding of the case (i.e., that Missouri’s denial of suffrage to women did not violate the 14th Amendment) was abrogated 45 years later in 1920 by the 19th Amendment, the question remains as to whether the decision’s other “observations” and “comments” remain viable and relevant to the “natural born Citizen” (“nbC”) presidential eligibility question.

The answer to that question, in turn, may impact not only Ayyadurai’s candidacy – competently explored here – but may in addition cast useful light on the questionable presidential candidacies and bona-fides of many others, including Vivek Ramaswamy; Nikki Haley; Kamala Harris; and, of course, Barack Hussein Obama, Jr. A subsequent offering will address Dr. Ayyadurai’s eligibility arguments.

Turning specifically therefore to the decision in Minor v. Happersett, 88 U.S.162 (1875) – and totally apart from the now-abrogated women’s suffrage issue addressed by the Court in ruling against Virginia Minor – the relevance of the surviving, non-suffrage and non-abrogated portions of the opinion to the nbC issue remains. Those portions relate to the Court’s following observations, found at 88 U.S. 162, 167-168: ... continue reading at: https://www.thepostemail.com/2023/07/17/revisiting-minor-v-happersett/

[CDR Kerchner]

Excellent legal analysis re the eligibility challenge by Dr. Shiva Ayyadurai.

[Reno89519]

The simple answer to Natural Born Citizen: "A child born in the country wherein the mother and father are already its citizens, whether themselves natural-born or naturalized.

Anchor babies do not qualify: Harris, Haley, Ramaswamy

Born outside the US do not quality: Cruz. His parents had emigrated to Canada, not just visiting. Dad was Cuban. Cruz had or may of had Cuban, Canadian, and US citizenship.

Obama. Citizen mom, born in US, Kenyan and British dad. I think the first two negated the foreign citizenship. His mom did adopt him to Indonesian husband, maybe giving up US citizenship. But, no one had standing to challenge.

[CDR Kerchner]

Here is a link to a full legal analysis done by Joseph DeMaio of the candidacy of Dr. Shiva Ayyadurai, a “naturalized Citizen” born in Bombay India who is totally challenging the constitutional term “natural born Citizen”: https://www.thepostemail.com/2023/07/18/the-presidential-candidacy-of-shiva-ayyadurai/

[Macho MAGA Man]

His mother wasn’t old enough to confer citizenship to him in August 1961 due to the immigration laws. I think she was 3 months shy of her 19th birthday in November. He was born too early.

[South Dakota]

In Slaughter-House Cases (1872) and Elk v. Wilkins (1884), the Supreme Court affirmed the framers’ originally intended meaning of “jurisdiction”. In both
cases, a child born on U.S. soil, of a foreign-citizen father, is not subject to U.S. jurisdiction at birth. Such a child is subject to the jurisdiction of the
foreign government to which the child’s father owes allegiance. Consequently, such a child is not a 14th Amendment citizen at birth [26].

[one guy in new jersey]

“Panama John” McCain, born not in the PCZ, not that that would have made a difference, but in Colón Panama. Not an NBC.

2008 was the year of political Mutually Assured Destruction.

[one guy in new jersey]

Not mentioned is the fact that individuals whose citizenship obtains pursuant to the provisions of the 14th Amendment (and not by virtue of Natural Law/Law of Nations which is the case for NBCs) are citizens merely by virtue of Congress exercising it’s constitutionally-conferred power of Naturalization. In other words, they too are mere naturalized citizens.

Only NBCs are not naturalized citizens. All other U.S. citizens, whether native-born or overseas-born, are naturalized.citizens.

[Reno89519]

Yes, the late Senator McCain was born in Panama while his parents were stationed there in the military. Congress addressed this by affirming that he was a Natural Born Citizen because the family was there with the military. This protected all service members stationed overseas with their families.

[one guy in new jersey]

Congress cannot enact a change the definition of natural-born Citizen other than by way of a specific amendment to the Constitution, the wording of which unambiguously requires such change (vis. this is one reason why the 14th Amendment did NOT work a change to the original meaning of the Constitutional term natural-born Citizen).

Congress whenever it chooses can of course bring about a change to its existing Naturalization statute by means of enacting an ordinary new statute. The 14th Amendment is a mere amendment to the Naturalization statute, even though it was strategically (and admittedly through very hard work) elevated to the status of Constitutional Law (i.e., laws that are very much like any other law except (in part) that they are particularly hard to change or remove or supersede once they are successfully enacted).

Resolutions, on the other hand, mean precisely nothing, and do nothing, in this area of law (an uniform Rule of Naturalization).

[woodpusher]

Here is a case for you...

Minor v. Happersett , 88 U.S. 162 (1875)
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.

Plural. ParentS.

Minor v. Happersett did not decide any citizenship issue, as no such issue was before the court.

There is no holding of "plural parents" for birthright citizenship per Minor v Happersett.

Minor v. Happersett, 88 U.S. 162, 167-168 (1875)

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

88 U. S. 168

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. The words "all children" are certainly as comprehensive, when used in this connection, as "all persons," and if females are included in the last, they must be in the first. That they are included in the last is not denied. In fact, the whole argument of the plaintiffs proceeds upon that idea.

Having determined that for the purposes of the case it was not necessary to solve the doubts cited by "some authorities," the Court proceeded to not solve them.

Virginia Minor's citizenship was never in question before the court because it was a stipulated fact, agreed to by both parties before the trial. Minor, Transcript of Record, page 8:

Agreed Statement

STATEMENT

[excerpt]

It is admitted by the pleadings that the plaintiff is a native-born, free white citizen of the United States and of the State of Missouri; that the defendant is a registrar, qualified and acting as such; that the plaintiff, in proper time and in proper form, made application to him to be registered and that the defendant refused to register the plaintiff solely for the reason that she is a female, (and that she possesses the qualifications of an elector in all respects, except as to the matter of sex, as before stated.)

Both parties agreed, as a matter of stipulated fact, that Virginia Minor was a native-born, free white citizen of the United States and of the State of Missouri, and that she was qualified as an elector in all respects, except as to the matter of sex. The question before the Court was whether a woman, being a native-born, free white citizen, could be barred from voting solely on account of sex.

The answer was yes. Nobody had a constitutional right to vote for President, whether male or female, and restrictions were a matter for the State to decide..

The Nineteenth Amendment, subsequent to Minor, did not give women the right to vote. It declared that where men had been given a right to vote, women must be granted an equal right to vote. The State retains the power to dispense with a popular vote and to elect delegates to the Electoral College via its Legislature.

See the more recent case of Gore v. Bush, 531 U.S. 98, 104 (2000)

The individual citizen has no federal constitutional right to vote for electors for the President of the United States unless and until the state legislature chooses a statewide election as the means to implement its power to appoint members of the Electoral College. U.S. Const., Art. II, §1.

Rogers v. Bellei, 401 U.S. 815 (1971)

The reach of congressional power in this area is readily apparent: p> 1. Over 70 years ago the Court, in an opinion by Mr. Justice Gray, reviewed and discussed early English statutes relating to rights of inheritance and of citizenship of persons born abroad of parents who were British subjects. United States v. Wong Kim Ark, 169 U.S. 649, 668 -671 (1898). The Court concluded that "naturalization by descent" was not a common-law concept but was dependent, instead, upon statutory enactment. The statutes examined were 25 Edw. 3, Stat. 2 (1350); 29 Car. 2, c. 6 (1677); 7 Anne, c. 5, 3 (1708); 4 Geo. 2, c. 21 (1731); and 13 Geo. 3, c. 21 (1773). Later Mr. Chief Justice Taft, speaking for a unanimous Court, referred to this "very learned and useful opinion of Mr. Justice Gray" and observed "that birth within the limits of the jurisdiction of the Crown, and of the United States, as the successor of the Crown, fixed nationality, and that there could be no change in this rule of law except by statute...." Weedin v. Chin Bow, 274 U.S., at 660 . He referred to the cited English statutes and stated, "These statutes applied to the colonies before the War of Independence."

We thus have an acknowledgment that our law in this area follows English concepts with an acceptance of the jus soli, that is, that the place of birth governs citizenship status except as modified by statute.

United States v. Wong Kim Ark, 169 U.S. 649 (1898)

169 U.S. 704

The fact, therefore, that acts of Congress or treaties have not permitted Chinese persons born out of this country to become citizens by naturalization, cannot exclude Chinese persons born in this country from the operation of the broad and clear words of the Constitution, "All persons born in the United States, and subject to the jurisdiction thereof, are citizens of the United States."

VII. Upon the facts agreed in this case, the Ainerican citizenship which Wong Kim Ark acquired by birth within the United States has not been lost or taken away by anything happening since his birth.

[...]

169 U.S. 705

The evident intention, and the necessary effect, of the submission of this case to the decision of the court upon the facts agreed by the parties, were to present for determination the single question, stated at the beginning of this opinion, namely, whether a child born in the United States, of parents of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States. For the reasons above stated, this court is of opinion that the question must be answered in the affirmative.

Everyone born in the United States, subject to its jurisdiction, is born a citizen of the United States. A natural born American citizen, to use the emphasis of John Jay, is a person who acquired American citizenship at birth.

Jay to Washington, 25 July 1787, handwritten.

The Constitution does not say a mumbling word about parents, or their citizenship. The child in the United States of two illegal aliens, both in a detention center awaiting deportation, is born a United States citizen. A child of foreign parentage born on U.S. soil, acquires U.S. citizenship at birth unless he or she is the child of a visiting accredited diplomat or of visiting royalty, and thereby enjoys immunity from United States laws. The prevailing precedent is United States v. Wong Kim Ark, 169 U.S. 649 (1898).

In Wong Kim Ark the dissenting opinion of Fuller C.J., joined by Harlan J., at 169 U.S. 706, said in reference to the majority opinion of the Court,

The English common-law rule, which it is insisted was in force after the Declaration of Independence, was that “every person born within the dominions of the crown, no matter whether of English or of foreign parents, and, in the latter case, whether the parents were settled or merely temporarily sojourning in the country, was an English subject; save only the children of foreign ambassadors (who were excepted because their fathers carried their own nationality with them), or a child born to a foreigner during the hostile occupation of any part of the territories of England.” Cockb. Nat. 7.

That accurately states the state of English law that was in effect in the colonies when the Declaration of Independence was issued.

Every one of the original thirteen states adopted so much of the English common law as was not inconsistent with the Constitution. They did so explicitly, either in their written state constitution, or in their written state statute law.

As was stated in Won Kim Ark at 169 U.S. 702,

The fourteenth amendment of the constitution, in the declaration 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,” contemplates two sources of citizenship, and two only: birth and naturalization. Citizenship by naturalization can only be acquired by naturalization under the authority and in the forms of law. But citizenship by birth is established by the mere fact of birth under the circumstances defined in the constitution. Every person born in the United States, and subject to the jurisdiction thereof, becomes at once a citizen of the United States, and needs no naturalization.

[4Zoltan]

Who is Joseph DeMaio and why should his opinion be more important than anyone else?

[Svartalfiar]

Only NBCs are not naturalized citizens. All other U.S. citizens, whether native-born or overseas-born, are naturalized.citizens.

WHy should being born overseas matter? The only thing that should count is whether mom and dad are currently citizens. Just because you happen to be born on a military base in Germany, or while mom's on vacation in Mexico or Canada for the day, doesn't suddenly make you not a citizen. This should entirely pass down through the parents, irrespective of location.

[DiogenesLamp]

Obama. Citizen mom, born in US,

We have no proof of where he was born. Hawaii is a state that issues birth certificates to people *NOT BORN IN HAWAII*, so that isn't proof he was born in the US.

The available evidence tends to indicate he was born in Canada at a home for unwed mothers. His father even wrote a letter saying they were giving him up for adoption.

[DiogenesLamp]

His mother wasn’t old enough to confer citizenship to him in August 1961 due to the immigration laws.

That only applies if he is born outside of the US. If born *IN* the US, he gets 14th amendment citizenship, which is still not natural born citizenship.

14th amendment is mass naturalization.

[DiogenesLamp]

Yes, the late Senator McCain was born in Panama while his parents were stationed there in the military. Congress addressed this by affirming that he was a Natural Born Citizen because the family was there with the military.

Firstly, he was born in the naval hospital. There are records and I have seen them. That business about him being born off base is just a lie that has been spread around.

Secondly, Congress doesn't create natural citizens. Their only power is to create naturalized citizens, and their opinions do not matter.

They can claim McCain was or they can claim he wasn't. What congress thinks has absolutely no bearing on what is the true case.

As the correct understanding of "natural born citizen" traces directly to Vattel, and as Vattel specifically says the children born in foreign lands to fathers serving as soldiers for their country are "natural born", I therefore conclude that McCain was a natural born citizen, even though he was a corrupt piece of sh*t who turned against his country in his declining years.

[RideForever]

The Constitution does not say a mumbling word about parents, or their citizenship. ... 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.

"... and subject to its jurisdiction", found in the US Constitution, is a grammatical appendage that is REQUIRED to be true for the the whole sentence to be true. If the parents don't have US citizenship when kids are born, they are not subject to US jurisdiction, they are subject to their parent's jurisdiction(s), like Harris.

[DiogenesLamp]

Congress cannot enact a change the definition of natural-born Citizen other than by way of a specific amendment to the Constitution, the wording of which unambiguously requires such change (vis. this is one reason why the 14th Amendment did NOT work a change to the original meaning of the Constitutional term natural-born Citizen).

They can change the constitutional requirement for the president to be a "natural born citizen" by creating a constitutional amendment, but they cannot change the meaning of "natural born citizen" through a constitutional amendment.

It means what it means, and you can't make it mean something else by passing a law.

[DiogenesLamp]

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.

I had forgotten from which case that statement came, and I am glad you posted it.

I want to point out that "Some Authorities" in this context very likely refers to William Rawle and his "View of the Constitution", which did a great deal of damage to the correct understanding of the term "natural born citizen."

Before he wrote his book, William Rawle knew he was wrong because he had been corrected by the Pennsylvania Supreme Court. ("High court of errors and appeals" during that time frame) He was told he was wrong about his claims around 1801 by a UNANIMOUS decision in the case of Negress Flora vs Joseph Grainsberry, (If I remember correctly.)

And if Rawle had any further misgivings about the correct meaning of "natural born citizen", he was corrected again by the Pennsylvania Supreme Court in the book about their collective rulings on English law in Pennsylvania: "Digest of Select British Statutes, Comprising Those Which, According to the Report of the Judges of the Supreme Court Made to the Legislature, Appear to be in Force in Pennsylvania". This book was widely used inside and outside of Pennsylvania in the 1800s and you pretty much could not be a lawyer in Pennsylvania (as Rawle Was) without having a copy on your shelf.

So William Rawle was deliberately poisoning the well, and after much research on the matter, I believe I have found the reason why Rawle was deliberately misrepresenting the truth on the matter of Citizenship in the USA. I'll get to that later if anyone wants to know.

But since the Minor v Happersett court says "Authorities", which is plural, perhaps you can tell me who else other than Rawle was pushing the idea that American Citizenship descended from English common law dealing with "subjects"?

My rule of thumb is that any "authority" must have a connection to the Constitutional Convention, or to one of the ratifying bodies in the states. If they have no such connection, their understanding is just hearsay learned from someone else who may not have known what they were talking about.

[one guy in new jersey]

Fair point.

When New York, Virginia, North Carolina voted to ratify the new Constitution, they were entitled to a Constitutional term “natural-born Citizen” that had a clear definition and real teeth in terms of excluding all pretenders.

Surely every citizen of this country knew who the pretenders were, and who they weren’t, in 1787-1788!

[one guy in new jersey]