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/

[woodpusher]

That there are bad consequences does not address the issue of legitimacy. Or competence, such as with the courts.

When a judge finds one guilty and, as a result bad things happen, it is a clear statement that one's issue was not legitimate. In the case of Dr. Terry Lakin, he was dismissed from the service after 17 years of service, and sent to Leavenworth.

If you like the idea of getting thrown out of the service while nearing retirement, or being denied a license to practice medicine, or being court-martialed, birtherism may be just the thing for you.

[woodpusher]

Laws should always be viewed in the light of legislative intent, *IF* that is discernible from the available records.

A new law states it is legal to drive 85 mph on a highway. You are going 85 mph when you are pulled over and ticketed for going 20 mph over the speed limit. The legislators intended to say 65 mph. Going 85 mph when they intended the limit to be 65 mph, should you pay the hefty fine for speeding at 20 mph over the intended speed limit?

Just checking to see if you really believe the crap you say. You appear to reach deep down into your bowels to excrete your turds of thought.

You will find it frequently said in judicial opinions of my court and others that the judge's objective in interpreting a stat­ute is to give effect to "the intent of the legislature." This princi­ple, in one form or another, goes back at least as far as Blackstone. Unfortunately, it does not square with some of the (few) generally accepted concrete rules of statutory construction. One is the rule that when the text of a statute is clear, that is the end of the matter. Why should that be so, if what the legislature in­tended, rather than what it said, is the object of our inquiry? In selecting the words of the statute, the legislature might have misspoken. Why not permit that to be demonstrated from the floor debates? Or indeed, why not accept, as proper material for the court to consider, later explanations by the legislators — a sworn affidavit signed by the majority of each house, for exam­ple, as to what they really meant?

Source: Antonin Scalia, A Matter of Interpretation, p. 16

The evidence suggests that, despite frequent statements to the contrary, we do not really look for subjective legislative intent.

Source: Antonin Scalia, A Matter of Interpretation, p. 17

"A Matter of Interpretation," Federal Courts and the Law, by Antonin Scalia, 1997. This book contains an essay by Antonin Scalia and responses to that essay by professors Ronald Dworkin, Mary Ann Glendon, Laurence Tribe, and Gordon Wood. There is a final response by Antonin Scalia.

Laurence Tribe, pp. 65-6

Let me begin with my principal area of agreement with Justice Scalia. Like him, I believe that when we ask what a legal text means — what it requires of us, what it permits us to do, and what it forbids — we ought not to be inquiring (except perhaps very peripherally) into the ideas, intentions, or expectations subjectively held by whatever particular persons were, as a historical matter, involved in drafting, promulgating, or ratifying the text in question. To be sure, those matters, when reliably ascertainable, might shed some light on otherwise ambiguous or perplexing words or phrases - by pointing us, as readers, toward the linguistic frame of reference within which the people to whom those words or phrases were addressed would have "translated" and thus understood them. But such thoughts and beliefs can never substitute for what was in fact enacted as law. Like Justice Scalia, I never cease to be amazed by the arguments of judges, lawyers, or others who proceed as though legal texts were little more than interesting documentary evidence of what some lawgiver had in mind. And, like the justice, I find little to commend the proposition that anyone ought, in any circumstances I can imagine, to feel legally bound to obey another's mere wish or thought, or legally bound to act in accord with another's mere hope or fear.

Aldridge v. Williams, 44 U.S. 9, 24 (1845)

In expounding this law, the judgment of the Court cannot in any degree be influenced by the construction placed upon it by individual members of Congress in the debate which took place on its passage nor by the motives or reasons assigned by them for supporting or opposing amendments that were offered. The law as it passed is the will of the majority of both houses, and the only mode in which that will is spoken is in the act itself, and we must gather their intention from the language there used, comparing it, when any ambiguity exists, with the laws upon the same subject and looking, if necessary, to the public history of the times in which it was passed.

United States v Union Pacific Railroad Company, 91 U.S. 72 (1875)

In construing an act of Congress, we are not at liberty to recur to the views of individual members in debate nor to consider the motives which influenced them to vote for or against its passage. The act itself speaks the will of Congress, and this is to be ascertained from the language used. But courts, in construing a statute, may with propriety recur to the history of the times when it was passed, and this is frequently necessary in order to ascertain the reason as well as the meaning of particular provisions in it. Aldridge v. Williams, 3 How. 24; Preston v. Browder, 1 Wheat. 115, 120 [argument of counsel -- omitted].

Downes v. Bidwell, 182 U.S. 244, 254 (1901)

In expounding this law, the judgment of the Court cannot in any degree be influenced by the construction placed upon it by individual members of Congress in the debate which took place on its passage nor by the motives or reasons assigned by them for supporting or opposing amendments that were offered. The law as it passed is the will of the majority of both houses, and the only mode in which that will is spoken is in the act itself, and we must gather their intention from the language there used, comparing it, when any ambiguity exists, with the laws upon the same subject and looking, if necessary, to the public history of the times in which it was passed.

[woodpusher]

I imagine these Birthers behaving like Kitboga, the guy who screws with scammers from India, just to waste their time, and screw with them, pretending not to understand things:

I just use an image of a hit-me toy.

[woodpusher]

As directly held in Wong Kim Ark, the child of two aliens, if born within the territory of the United States, is not only born within the jurisdiction, but is born a United States citizen.

I've read Wong Kim Ark. My recollection is that they go on about residence and domicile. The parents were legal residents, and would have been citizens had the treaty with China not forbidden it.

Your recollection is crap. It sounds like you think Moby Dick is a venereal disease.

149 U. S. 716.

The Convention between the United States and China of 1894 provided that

"Chinese laborers or Chinese of any other class, either permanently or temporarily residing in the United States, shall have for the protection of their persons and property all rights that are given by the laws of the United States to citizens of the most favored nation, excepting the right to become naturalized citizens."

28 Stat. 111. And it has since been decided, by the same judge who held this appellee to be a citizen of the United States by virtue of his birth therein, that a native of China of the Mongolian race could not be admitted to citizenship under the naturalization laws. In re Gee Hop (1895), 71 Fed.Rep. 274.

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. A person born out of the jurisdiction of the United States can only become a citizen by being naturalized, either by treaty, as in the case [169 U. S. 703] of the annexation of foreign territory, or by authority of Congress, exercised either by declaring certain classes of persons to be citizens, as in the enactments conferring citizenship upon foreign-born children of citizens, or by enabling foreigners individually to become citizens by proceedings in the judicial tribunals, as in the ordinary provisions of the naturalization acts.

149 U.S. 704

VII. Upon the facts agreed in this case, the American 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.

Wong Kim Ark acquired citizenship by birth while being born to two Chinese aliens.

There are two classes of citizen, and two only: natural born and naturalized. Naturalization applies only to aliens at a time after their birth. Wong Kim Ark was a citizen at birth, did not need naturalization, and as a citizen was not even eligible for naturalization. That leaves only the one other category possible, natural born citizen.

Slaughterhouse Cases, 83 U.S. 36, 73 (1872)

The first observation we have to make on this clause is that it puts at rest both the questions which we stated to have been the subject of differences of opinion. It declares that persons may be citizens of the United States without regard to their citizenship of a particular State, and it overturns the Dred Scott decision by making all persons born within the United States and subject to its jurisdiction citizens of the United States. That its main purpose was to establish the citizenship of the negro can admit of no doubt. The phrase, "subject to its jurisdiction" was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States.

- - - - -

But this is all still 14th amendment stuff, and has nothing to do with "natural born citizen", which they conspicuously failed to call him.

Just because you have to make believe you don't know what a natural born citizen is does not add anything to your insane ramblings.

Black's Law Dictionary, 11th Ed.

citizen, n. (14c) 1. Someone who, by either birth or natu­ralization, is a member of a political community, owing allegiance to the community and being entitled to enjoy all its civil rights and protections; a member of the civil state, entitled to all its privileges. Cf. RESIDENT, n.; DOMI­CILIARY, n.

birthright citizen. Someone who acquires citizenship in a polity solely by virtue of having been born within its geographic borders.

citizen by naturalization. See naturalized citizen.

federal citizen. (1885) A citizen of the United States.

natural-born citizen. (18c) 1. A person born within the jurisdiction of a national government. 2. A person born outside the jurisdiction of a national government to a parent who is a citizen of that nation. 3. A person born outside the jurisdiction of a national government to a father who is a citizen of that nation. • Sense 3 was the common-law sense of the nearest analogous phrase in English law (common-law subject) at the founding of the United States of America. See NATURAL BORN CITIZEN CLAUSE.

naturalized citizen. (18c) A foreign-born person who attains citizenship by law. — Also termed citizen by naturalization.

2. For diversity-jurisdiction purposes, a corporation that was incorporated within a state or has its principal place of business there. 28 USCA § 1332(c)(1).

3. Popularly, someone who lives in a particular town, county, or state.

[woodpusher]

Your inane opinion certainly does not stop you from repeatedly citing court opinions, however irrelevant they may be, for example Minor v. Happersett.

I was wondering when you would get to that. If you will notice, You cited Minor v. Happersett, and *I* pointed out the court acknowledges "authorities" which do not agree, meaning they are aware of "authorities" that take my position.

If it helps, the name of the thread is "Revisiting Minor v. Happersett". It is revisiting an irrelevant case yet again. And you repeatedly cite court opinions that you make believe you have read for some reason. The insanity runs deep.

In my example, the court is being cited as a witness, not as a court.

You cited courts as a witness at the Constitutional Convention. That is back before there was a Judicial branch or federal courts. The Supreme Court and the Federal court system was created by Congress via the Judiciary Act of 1789.

The other aspect of this is that *YOU* and others believe in the infallibility of the courts whether I do or not, so you should accept arguments based on courts even though I reject them. (Unless they are in the capacity of witness.)

The court can be wrong and make a mistake. Even their mistakes make law, whereas your drooling insanities do not. The courts are empowered to decide cases and controversies, and you are empowered by the First Amendment to talk on and on insanely.

Were any holding in Minor to be in conflict with a holding in Wong Kim Ark, any conflicting holding of Minor would have been struck down by Wong Kim Ark.

I don't care.

That you do not care does not change the correctness of what I stated.

Opinions over a century away from the event are irrelevant,

That's just insane crap and you know it.

And both cases are fooling with that 14th amendment nonsense, which I regard as illegitimately ratified.

And nobody gives a crap about your opinion that the 14th Amendment was illegitimately ratified. It was certified as ratified a century and a half ago. That is not subject to judicial review. It's here to stay until another constitutional amendment changes it.

[4Zoltan]

DL - “You keep failing to notice they keep using “deemed”, “ajudged” and “taken to be”, when they could have said “is.””

So you’re back to when the Massachusetts legislature wrote, “shall be deemed, adjudged, and taken to be a citizen of this Commonwealth” instead of “is a citizen of this Commonwealth” it means he wasn’t a real citizen just a pretend citizen.

[woodpusher]

Congress is given the authority to define naturalization.

"The Congress shall have power ... To establish a uniform rule of naturalization...."

The idea of birthright citizenship is naturalization by a law made by Congress and could be undone by Congress.

Birthright citizenship came to the colonies via English common law. Upon achieving statehood, the new states adopted the English common law on citizenship. Under the Constitution, birthright as stated in English common law continued. With the 14th Amendment, birthright citizenship was placed beyond the reach of Congress, and the words used were, "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." The Congress only has power to pass laws consistent with that.

[DiogenesLamp]

Clearly this point is important to you, while I don't care at all if it's from the debates on the 14th or the Civil Rights act of 1866.

Still my position. What you have is a quibble. John Bingham reiterated the same point with different words in the debate on the 14th.

Too bad for you that Bingham did not offer any words on citizenship in the 14th Amendment, and therefore no words of John Bingham were ratified as part of the citizenship clause.

He understood it to mean just what he explained in the debates on the 14th amendment and the Civil Rights act of 1866.

I have long said that the 14th amendment is badly written, and this is a prime example of it. I have also said the original draft of the citizenship portion was much better than what they ended up with, and the messed up version is thanks to Trumbull who learned of temporary allegiance.

But again, this is an example where courts go with strict construction of the words instead of original intent, and that is always wrong.

[DiogenesLamp]

That is the truth. You just don't like it.

That is your deliberately distorted view of what you want to project onto me.

The *natural law principles* that are outlined in the book are what our concept of citizenship is based on. That the book has been adopted as an authority on international law does not detract from the fact it puts forth a set of principles that follow natural law.

The Federal government uses the English common law system of law.

Except where it doesn't.

Previously, I had asked you to locate a letter written by James Madison in which he points out that the "common law" has been modified greatly by the states. I believe he also says words to the effect "had we undertaken the effort to make a distinction we would have written a "digest of laws" rather than a constitution!"

I used to have a link to it, but i've lost it. I know you can find it, and when you do, I want you to read the message James Madison is trying to impart, and take it to heart, because it clarifies where we deviated from "common law."

I believe he also mentions something about the Common Law requiring people to support the Church of England.

Nice try at making believe I was referring to the Magna Carta.

Do analogies go over your head? I never said you were referring to the Magna Carta. I simply pointed out what you were doing was *LIKE* saying we should be ruled by England if I cite the Magna Carta.

Notice I still say "Like" doesn't mean "is." Though some on your side seems to think it does.

[DiogenesLamp]

I imagine these Birthers behaving like Kitboga, the guy who screws with scammers from India, just to waste their time, and screw with them, pretending not to understand things:

I have every reason to believe you aren't pretending when you don't understand things.

[DiogenesLamp]

You are normally good quoting in the context of a message to which you are responding.

I remain unaware of the preference for first hand witnesses at a Constitutional Convention.

In this case you are not doing a good job keeping the context. Here is the salient aspect which you left out of your quote.

Chief Justice John Marshall was right in the thick of Constitutional ratification and he did love himself some Emmerick Vattel! Cited it and quoted it a LOT!

John Marshall was a *WITNESS* to the doings surrounding the Constitutional convention. He was a first hand account. He can relate his own understanding from what he heard first hand.

I will assume you just lost the context of the discussion and were not trying to mislead us deliberately.

[DiogenesLamp]

Before I entertain any more arguments about the 14th amendment, I would like clarification from you on a particular point.

With the governments of all the Southern states replaced by Vichy governments with Union bayonets at their back, do you believe these occupation governments could legitimately ratify a constitutional amendment that was very much opposed by the people of their states?

Can constitutional amendments be ratified by Military controlled governments?

I have personally been told by Law Professor Glenn Reynolds at "Instapundit" that this particular topic is the subject of much debate in academic legal circles.

Which side of it do you fall on?

[DiogenesLamp]

When a judge finds one guilty and, as a result bad things happen, it is a clear statement that one's issue was not legitimate.

Black men and southern courts. Nazis and Jews.

I would think that intelligent men would grasp the concept that power does not make one factually correct, it only makes one capable of imposing one's will on others.

If you like the idea of getting thrown out of the service while nearing retirement, or being denied a license to practice medicine, or being court-martialed, birtherism may be just the thing for you.

Your argument here is "You better conform or bad things will happen to you!"

To that argument I would like to make this rebuttal.

[DiogenesLamp]

A new law states it is legal to drive 85 mph on a highway. You are going 85 mph when you are pulled over and ticketed for going 20 mph over the speed limit. The legislators intended to say 65 mph. Going 85 mph when they intended the limit to be 65 mph, should you pay the hefty fine for speeding at 20 mph over the intended speed limit?

This is a case in which no reasonable person can accept that the legislature would make such a mistake. It therefore doesn't work as an analogy.

But if for some reason such a thing happened, and the debates on the statute showed that they were clearly specifying 65, but the final bill ended up passing with the wrong number in it, then the court, (if it ever got that far) would be right in throwing out the case because it was simply a mistake in how the law was written.

But that would require a competent intelligent judge and we have a big shortage of those in this country.

One is the rule that when the text of a statute is clear, that is the end of the matter.

That's a good rule, but that clearly isn't the case when we are referring to the 14th amendment. The original draft was clearer, but what they ended up with as the final verbiage could easily be misread into a wrong interpretation, as has been done.

Let me give you George Will's good essay on this topic.

It used to be quite easy to find, but now all a search returns is a lot of propaganda spew from the usual liars.

Ann Coulter has a good essay on this topic as well.

Aldridge v. Williams, 44 U.S. 9, 24 (1845)

And I don't care about your citing of court cases. I don't regard "precedent" as a substitute for "first principles". (Which is the methodology used in the Scientific community.)

[DiogenesLamp]

You cited courts as a witness at the Constitutional Convention.

I cited John Marshall as a witness to the doings surrounding the Constitutional convention. He assisted in getting the Constitution ratified in Virginia. His opinion is relevant as a witness.

The Minor court's opinion is relevant to the fact of the existence of "authorities" that take my position. I do not cite them as having any first hand knowledge of the doings at the constitutional convention.

That you do not care does not change the correctness of what I stated.

Right back atcha buddy!

Opinions over a century away from the event are irrelevant,

That's just insane crap and you know it.

These opinions are irrelevant to truth, but not irrelevant to how power gets used in the present.

But my interest is in what is factual, not that a court has an opinion.

And nobody gives a crap about your opinion that the 14th Amendment was illegitimately ratified. It was certified as ratified a century and a half ago.

This was a point I wanted you to clarify for me. I will take this initial statement as your tentative position, but I will wait for you to answer my other message on this topic before I regard it as fixed in your mind.

Vichy governments do not represent consent of the governed.

[DiogenesLamp]

So you’re back to when the Massachusetts legislature wrote, “shall be deemed, adjudged, and taken to be a citizen of this Commonwealth” instead of “is a citizen of this Commonwealth” it means he wasn’t a real citizen just a pretend citizen.

Do you know what adoption is? (Dumb question, but you are deliberately playing dumb.)

Let's see if the two of us together can help you grasp this concept of "adoption", and if we are successful, we will advance to the difference between a naturalized citizen and a natural citizen.

But let's get this adoption stuff sorted out first, shall we?

[4Zoltan]

You are fixated on this adoption thing which I don’t see as relevant but let’s give it ago.

If Mr and Mrs Smith are adopting baby boy Johnnie and in the final court order the judges writes,

“Baby boy Johnnie shall be deemed, adjudged and taken to be the son of Mr and Mrs Smith, and entitled to all the rights and duties of the parent-child relationship.”

Is baby boy Johnnie now the real son of Mr and Mrs Smith or just a pretend son?

[Penelope Dreadful]

What I find fascinating about the Birthers, is what is it they gain from this? Where does their satisfaction come from? You know, if somebody doesn’t pay their taxes, and then claims the Income Tax Amendment was not properly ratified, they may think they can skate on their taxes, or they may just be sociopaths who love screwing up other people, and then laughing when those poor dopes get clobbered by the law. A schizophrenic person who talks to telephone poles actually hears the voices when he’s off his meds.

Maybe with Birthers, it is closer to a weird sexual thrill, like trannies get. You know, some guy delusionally believes he is a chick, so he puts on a wig and some makeup and a dress and prisses around like a woman. Is that what thrills birthers? It makes them feel like a better catch for the chicks? Pretending to be lawyers? Is that why they go around spewing legal cases like they have a clue when they are bonkers, and the facade is thin. Is it just oppositional attention-seeking behavior. I suspect that it is different in different Birthers, and whatever mental defect motivates Diogenes is different from the one that motivates Kerchner, or that poor dead lawyer Puzo, or whatever his name was.

There is something that pushes them over the edge sanity wise. Plenty of people think income taxes are wrong, but they pay their taxes, because they know that is the law. But the ones who maintain that the law does not require income taxes, are a different breed altogether - they are mentally ill.

[DiogenesLamp]

Birthright citizenship came to the colonies via English common law. Upon achieving statehood, the new states adopted the English common law on citizenship.

This is incorrect, and I can prove it!

The State legislature of Pennsylvania ordered the Pennsylvania Supreme court to determine what English Laws were still in effect in Pennsylvania. The Court delivered it's report to the legislature. Among other English laws they determined were null and void, they determined that Citizenship did not come from English common law, but was instead descended from the natural law principles articulated by Vattel.

Here is the relevant page of their report.

And as it should happen, some of *THESE JUDGES* were present and involved in the constitutional process.

I will also point out that the Constitutional Convention was held in Philadelphia (at the legislative house, otherwise known as "Independence Hall".) and if *ANYONE* knew what was the intended meaning of "natural born citizen", it would be the Philadelphia Pennsylvania legal community.

.

.

[woodpusher]

Clearly this point is important to you, while I don't care at all if it's from the debates on the 14th or the Civil Rights act of 1866.

Still my position. What you have is a quibble. John Bingham reiterated the same point with different words in the debate on the 14th.

Too bad for you that Bingham did not offer any words on citizenship in the 14th Amendment, and therefore no words of John Bingham were ratified as part of the citizenship clause.

He understood it to mean just what he explained in the debates on the 14th amendment and the Civil Rights act of 1866.

You have gone totally unhinged. Please do link, cite and quote your FICTIONAL ACCOUNT OF THE HOUSE DEBATES where John Bingham said anything whatever in the House debate on the citizenship clause of the 14th Amendment. The official record of the debates is the Congressional Globe. What is glaringly obvious is that I have read it and you have not.

Congressional Globe, House, June 13, 1866, 39 Cong, 1st sess, pg 3148:

Representatives DEFREES and WRIGHT asked permission to print some remarks upon this question of agreeing to the 14A proposal. Without objection, there requests were granted. The entire proposal was then read, and the vote recorded, yeas 120, nays 32, not voting 32. Bingham voted Aye.

RECONSTRUCTION AGAIN

Thaddeus Stevens addressed each each section of joint resolution. His comments on the first section as proposed by the Senate are below. Nobody else rose to comment on any section of the joint resolution.

A few words will suffice to explain the changes made by the Senate in the proposition which we sent them.

The, first section is altered by defining who are citizens of the United States and of the States. This is an excellent amendment, long needed to settle conflicting decisions between the several States and the United States. It declares this great privilege to belong to every person born or naturalized in the United States.

That is all the words said in House debate about the citizenship clause, by anybody. The recorded vote is on the next page near the top of the first column, immediately following the reading of the full 14A, which continued over to page 3149.

Page 3148: https://memory.loc.gov/cgi-bin/ampage?collId=llcg&fileName=073/llcg073.db&recNum=269

Congressional Globe at the Library of Congress

Page 3149: https://memory.loc.gov/cgi-bin/ampage?collId=llcg&fileName=073/llcg073.db&recNum=270