Sometimes attorney Leo C. Donofrio, best known for his crazy ideas on presidential eligibility (ideas that have been very soothing to the birthers, along with fake birth certificates, doctored audio tapes and crank image analysts), for his unsuccessful lawsuit (Donofrio v Wells) trying to get Barack Obama taken off the 2008 ballot in New Jersey, and for his smears against President Chester A. Arthur, has made a new claim about a major legal information website, Justia.com, claiming it selectively removed information from citations of the case of Minor v. Happersett (1892) to hide it’s [nonexistent] relevance to Barack Obama’s presidential eligibility.
Donofrio says that the Minor case is binding precedent on questions of citizenship (which it is may well be in that it declared that women can be citizens) but also that the Minor decision indicates that Barack Obama is not eligible to be President, which no competent reader of the case would conclude1. One would not think that any attorney would make such a mistake, leading me to speculate that Donofrio is playing a game to see how many millions of Americans he can prove himself smarter than by fooling them. (I am dismissing any speculation that Mr. Donofrio is actually suffering from paranoid-style thinking or is a paid political operative.)
What Donofrio claims is that Justia is removing named citations of Minor in other cases involving citizenship, but leaving them alone in cases of voting rights. He uses the Internet Way Back Machine to show Justia citations of Minor listed by name in Boyd v. Nebraska ex Rel. Thayer, 143 U.S. 135 (1892), but only by case number in the current version.
Well if Justia “scrubbed” it, then they also “unscrubbed” because the case name is there as of right now. (I noted this on Donofrio’s blog and am waiting to see if he allows my comment to appear.)
Here’s what Justia looks like today:
The “missing” name in the case of Pope v. Williams, 193 U.S. 621 (1904) that Donofrio complains about is also there today. However, Donofrio misleads his readers when he implies that this is a citizenship citation rather than a voting rights citation.
While the privilege to vote may not be abridged by a state on account of race, color and previous condition of servitude, the privilege is not given by the federal Constitution or by any of its amendments, nor is it a privilege springing from citizenship of the United States. Minor v. Happersett, 21 Wall. 162.
So I don’t know why, assuming Donofrio’s screen shots are genuine, that the name of Minor v. Happersett was temporarily missing from the Justia site for a couple of cases. Justia is an important Internet destination for the text of Supreme Court decisions, but hardly the only one, and no serious researcher is going to use the Internet2, and anyway Donofrio’s crank theories are certainly not worth somebody tinkering with a Supreme Court citation. Did Donofrio ask Justia for an explanation? Apparently not.
Needless to say, some of the birthers are going ape over this. It gives them an excuse to evade the problem that no case supports their theories – the evidence used to be there, but it must have been scrubbed3 – and it feeds their paranoia of an all-controlling Obama administration whose power has no limits.
1The opinion in Minor states:
As to this class [children born to non-citizens in the United States] 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.
Nor in this case was it necessary to distinguish between citizens and natural born citizens.
2Lawyers use commercial services like Westlaw.
3Donofrio himself has been guilty of scrubbing things from his own blog, like this image of the Supreme Court he published after they refused to hear his case.
Scrubbed image from Donofrio’s web site
This is not the first “scrubbing” claim from Donofrio either. He previously made one against the Michigan Law review against a well-documented clarification made by Lawrence Solon.