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been wrongly assumed that the Court in Minor did construe the 14th Amendment, and that the holding of Minor was later superseded by Wong Kim Ark.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 And it was only this part of the Minor case which was superseded by the 19th Amendment.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.
JUDICIAL RESTRAINTJUDICIAL 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. On this point, the Court stated:
“Thus, by the Constitution, the judicial power of the United States is made to extend to controversies between citizens of different states. Under this, it has been uniformly held that the citizenship necessary to give the courts of the United States jurisdiction of a cause must be affirmatively shown on the record. Its existence as a fact may be put in issue and tried. If found not to exist, the case must be dismissed.”
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 to 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.
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. On this point, the Court stated:
“Thus, by the Constitution, the judicial power of the United States is made to extend to controversies between citizens of different states. Under this, it has been uniformly held that the citizenship necessary to give the courts of the United States jurisdiction of a cause must be affirmatively shown on the record. Its existence as a fact may be put in issue and tried. If found not to exist, the case must be dismissed.”
Your analysis was very well-written and thoughtful. Thank you.
Thank you for putting that up. I copied and emailed it to myself. Outstanding analysis.