A visitor to Obama Conspiracy Theories left this comment:
The Supreme Court clearly established who was a “natural born citizen” in the case Minor v. Happersett (1874). Justice Gray thoroughly discussed the definition of “natural born citizen” in his review of the Minor case. The Supreme Court in Minor adopted the Laws of Nations definition of “natural born citizen” as being a person born in the United States to “citizen parents” –” this definition does not include Mr. Barack H. Obama, Jr., because his father was not a United States Citizen.
It seems to me an untenable position to say that Minor v. Happersett “clearly established who was a ‘natural born citizen’” when the case itself states “for the purposes of this case, it is not necessary to solve these doubts” (”these doubts” referring to citizenship of those born in the United States of alien parents). It would be United States v. Wong Kim Ark that would definitively answer this question in 1898.
What the case was about
Mrs. Virginia Minor was a native-born American citizen from Missouri who had the audacity to try to register to vote. The registrar, one Happersett, refused because Minor was not “male”. Minor sued in local court and the Missouri State Supreme Court, but she lost. She appealed to the United States Supreme Court claiming that she was a citizen of the United States under the Fourteenth Amendment and was entitled to vote. The Supreme Court agreed that she was a natural born citizen of the United States, but that didn’t make her eligible to vote.
So incidentally to the main question in the case, the Supreme Court did discuss citizenship.
Two Kinds of Citizen
The section from Minor that is alluded to by the opening quotation is one in which the court is describing the state of citizenship in the United States prior to the Fourteenth Amendment (something that is overlooked by those who use the citation). Here is what the court said:
To determine, then, who were citizens of the United States before the adoption of the amendment, it is necessary to ascertain what persons originally associated themselves together to form the nation and what were afterwards admitted to membership…
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, ”
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.
“natives or natural-born citizens, as distinguished from aliens or foreigners”
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. 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.
Let’s take a minute to digest that lengthy citation. The most obvious point is that there are two and exactly two kinds of citizens discussed here: ” natural born” and “naturalized”. Take a minute and reread the citation and verify this for yourself. You will see no distinction made between those who are born a citizen and those who are a natural born citizen. Note: “all children born of citizen parents within the jurisdiction are themselves citizens” — not “natural born citizens” but “citizens” but natural born implied because they are born citizens.
The issue addressed in this section is not who is a natural born citizen, but who is a citizen. So when the court talks about “some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their parents” they are saying that there are “doubts” as to whether the children of aliens born under the jurisdiction of the United States are citizens at all. This is the point glossed over when trying to use this case to create a third type of citizen (the non-natural born, non-naturalized citizen).
Let me quote from an earlier portion of the decision:
Whoever, then, was one of the people of either of these states when the Constitution of the United States was adopted became ipso facto a citizen — a member of the nation created by its adoption. He was one of the persons associating together to form the nation, and was consequently one of its original citizens. As to this there has never been a doubt. Disputes have arisen as to whether or not certain persons or certain classes of persons were part of the people at the time, but never as to their citizenship if they were.
What can be seen from this quotation is the distinction between the concept of who is in a class and whether members of that class are citizens. In relating Minor to the question of Obama natural born citizenship Minor informs us that those born citizens are natural born citizens, but Minor does not inform us who are born citizens. Focus on this language from the Court:
These were natives or natural-born citizens, as distinguished from aliens or foreigners.
The distinction is not between “plain citizens” and “natural born citizens” but between “natural-born citizens” and aliens (e.g. not citizens).
All of the preceding discussion is related to the situation before passage of the Fourteenth Amendment (“To determine, then, who were citizens of the United States before the adoption of the amendment”). The reason for this digression to the time before the Fourteenth Amendment was the question of whether Minor was a citizen apart from the Fourteenth Amendment. The court said that she was: “she has always been a citizen from her birth and entitled to all the privileges and immunities of citizenship.” She was such a citizen because her parents were citizens and she was born under the jurisdiction of the United States, and the pesky argument about those not born of citizen parents before the Fourteenth Amendment “it is not necessary to solve”.
I don’t know if this question was ever solved for those born before the passage of the Fourteenth Amendment, but it is not necessary for us to solve either because there are no more persons living born before the Fourteenth Amendment, and because it was solved for those born after by the Supreme Court in United States v. Wonk Kim Ark. Wong, born in the United States of alien parents, was declared a citizen. It is hardly reasonable to quote the dicta in Minor as casting doubts while refusing to recognize the dicta in Wong which resolved them.
So in summary:
- Minor tells us that there are two kinds of citizens: native or natural born and naturalized
- There was some question prior to the passage of the Fourteenth Amendment whether the children of aliens born under the jurisdiction of the United States were citizens.
- Minor does not resolve this question
- However, it is clear that those born citizens are natural born citizens (since there are only two types, and those born citizens cannot be naturalized).
- United States v. Wong Kim Ark clarifies who is under the jurisdiction of the United States and thereby who are citizens at birth.
Since the original publication of this article in March of 2009, Superior Court Judge Richard E. Gordon in Arizona wrote in his order in the case of Allen v. Obama:
…this precedent fully supports that President Obama is a natural born citizen under the Constitution to hold the office of President. See United States v. Wong Kim Ark, 169 U.S. 649, 702-03 (1898) addressing U. S. Const. amend. XIV); Ankeny v. Governor of the State of Indiana 916 N.E.2d 678, 684-88 (Ind. App. 2010) (addressing the precise issue). Contrary to Plaintiff’s assertion, Minor v. Happersett, 99 U.S. 162 (1874), does not hold otherwise.