While I was mowing grass today, the phrase “binding precedent” came to mind. It’s one of those slogans that birthers repeat to avoid having to take the time to understand the issues. The two precedents the birthers cling to have something in common.
The first birther precedent comes from Scott v Sandford, more commonly known as Dred Scott. Scott (pictured right) was a slave who was taken by his owner into a state where slavery was not legal and Scott sued saying that this made him a free man. Rather than considering the case on the merits, the US Supreme Court decided that Scott could not bring suit in federal court because he was not a citizen. There were several opinions written by the various justices; however, the thing that came out of the case was a decision that not only were slaves not citizens, but Congress did not have the constitutional authority to make them naturalized citizens, nor could any descendant of a slave ever be a citizen.
The second is from the case of Minor v Happersett. Virginia Minor tried to register to vote, but was refused because she was a woman. Minor argued that the Privileges and Immunities Clause made her eligible to vote just as much as a man. The Court said no. They said that even though Minor was a citizen, citizenship doesn’t imply the right to vote.1
What these two decisions have in common is that they were so repugnant to the country that the Constitution of the United States was eventually amended to obliterate them both. The 14th Amendment restored the status of those born in the United States to where it was before the decision from the Court in Scott. The 19th Amendment now prohibits denying the right to vote on the basis of sex.
1The part of the Minor decision that birthers cling to is not what was done away with by the 19th Amendment. The Court said that women born in the United States of citizen parents are themselves citizens. The Court did not say that citizen parents were a requirement (and indeed a later court in US v Wong affirmed that it was not). So in this case the “precedent” that birthers tout never actually existed.