The MisConstruence of Minor v Happersett

The MisConstruence of Minor v Happersett By Donofrio & Followers

About 15 years ago someone mentioned my up-coming birthday and asked me how old I was going to be.  I replied “48″, to which my mother immediately responded. “No you’re not.”  I thought “What??!  Someone is asserting that I don’t know my own age?  And it’s the same person that brought me into this world?”  How odd was that?  Well, both of us couldn’t be right so she forced me to do the math that seemed otherwise so unnecessary.  It turned out she knew what she was talking about, leaving me astonished by the realization that I had added a year to my age somewhere back many, many, years ago.  (How could someone get their own age wrong?  Only through a process of total disassociation from everything, but that’s a story for the next life)  So I was happy to be wrong in the right direction, -I was one year younger!  Not many people get to lose a year off their age.
Anyway, the point is that everyone makes mistakes, most small, but some huge.  It goes with the territory of being a member of an odd species called humans.  It’s usually unpleasant to be wrong publicly and have egg all over your face, but that’s the price we must pay for mistakes in our judgement, even though they are innocent mistakes.

I’m writing this, not to embarrass my fellow, but to be true to the truth.  A huge logical error was made which those in the “birther” community, including myself, failed to notice because we were “blinded” by its insistent and authoritative presentation.  A major “fact” had been discovered that we all were seeking, like the Holy Grail, and we relished its discovery and the expert elucidation employed in “clarifying” its significance.  But with the passage of time, after several times having read what its author, attorney Leo Donofrio, wrote, logic has finally shined in where before there was a bright convincing fog of illogic which we all took for the gospel truth, but which turns out to be upside down and backwards.
What he misconstrued by a leap of false logic resulted in a false deduction.  I speak of the meaning of Judge Waite’s words in the Minor v Happersett ruling regarding the nature of citizenship.  Mr. Donofrio quotes these words from that ruling:
Minor v. Happersett , 88 U.S. 162 (1875)

“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.”

http://law2.umkc.edu/faculty/projects/ftrials/conlaw/minorvhapp.html

The case of Virginia Minor involved the supposed right of a woman -who claimed she also was a U.S. citizen, -just like men, to be allowed to vote.  The court first set out to determine the legal basis of asserting that American women are citizens, and then next to determine if they therefore had a right to vote.  The court found no basis by which to declare that anyone is a citizen, much less women, so it looked for a legal equivalent to a human shadow.  It found one in the Constitution’s presidential eligibility clause which uses the term “natural born citizen”, and therefore ruled in their decision that she was a citizen, but then they also found that there was no basis to declare that she had a right to vote under federal law.  They found that no one did.  It was a matter strictly of State Law.
So there’s no Constitutional basis for citizenship and no Constitutional right to vote.  That may seem like a strange oversight, but in fact it was not an oversight at all.  The right of natural membership in any natural group, whether clan, tribe, or nation, is an unalienable right, as is the right of free men to vote.  The Constitution was not about delineating unalienable rights, such as Life, Liberty…etc., rather it was about creating the structure, the constitution, of a new form of government.  The public insisted that certain unalienable rights be forever added to the authority of the Constitution, and so they wrote the Bill of Rights.  But I  digress.

So it seems there are two flaws to point out.  One was made by the Supreme Court in assuming that they had to first ascertain whether or not women are citizens.  That was not necessary at all to their secondary finding that the Constitution grants no one the right to vote, it being an issue reserved for the States and their constitutions.  They could have completely skipped the issue of citizenship and dealt solely with the purpose of her suit (the right of women to vote).  It would have been far more direct and prevented an unneeded detour.

The second flaw is that drawn by Mr. Donofrio Esq. in how he characterized the court’s statement regarding citizenship.  He twisted their statement inside out and backwards by asserting that the “class” of citizens “defined” was the “natural born” class,* when in fact the class that was actually described (not defined) was that of children born in the country of their citizen parents.  They, the court described as being “citizens” (…became themselves, upon their birth, citizens also.)  Then, like an aside, such citizens are described as “natives or natural-born citizens”.  That added description of citizens was not needed, not relevant to women (who could not vote nor be President) and therefore was superfluous as far a the citizenship of women was concerned, but was added because it harks back to the only words the justices could find in the Constitution regarding those who were undoubtedly natural Americans and therefore would possess all the right of citizens.

* Donofrio wrote: “But the Court in Minor did make a direct holding that Mrs. Minor was, in fact, a US citizen. The Court established her citizenship by defining the “class” of “natural-born citizens” as those born in the US to parents who were citizens. Then the Court included Virginia Minor in that class thereby deeming her to be a US citizen.”

But instead of recognizing this clear simple fact, the spotlight was incorrectly shined on “natural born citizen” which he characterized as that which the court was defining, when it fact it was only describing who is undoubtedly a “citizen” -as opposed to a foreigner or alien”.  The result of the court’s description was that citizenship came to be legally understood to be derived naturally from parents.  American parents give birth to natural Americans.  It’s no more complicated than that.  Citizen parents give birth to natural citizens, case closed.  That carried no small implication because it meant that citizens were not the product of the soil, nor their location on the soil when their mother gave birth to them.  That means that borders are not relevant to natural membership in the nation because that membership comes through the parents, not through the national boundaries.  In other words, it’s from nature, not from law.  It’s inherited, not granted or bestowed by bureaucrats or lawmakers.

The bottom line of this discussion is that the Minor paragraph on citizenship was not what it was illogically distorted and held up to be.  It was simply a description of how natural citizens are formed and did not “define” a “natural born citizen” “class” as being those so described and also limited by the simple non-inclusive description used.  This is important because if his logic about the exact “definition” of natural citizenship was correct, then no American born 4 feet over the Canadian or Mexican border, or born on the ocean or on a plane outside U.S. airspace) would be considered to be a natural American and would be constitutionally barred from the office of the president (including John McCain).  Instead Mr. Donofrio would incorrectly define such Americans as being statutory Americans who were citizens by naturalization!  That is flat out incorrect.  Americans parents can bring their natural American children into this universe anywhere, anytime and all that matters is that they themselves are citizens, -not where their children are born.
That point is the major reason for writing this.  The implication that natural citizens are only born in the United States has no basis in logic nor natural law.  No principle can support it because it is an invented bastardized view which combines the oil and water of jus soli citizenship with jus sanguinis citizenship, but the two are polar opposites and mixing them can never be justified by any principle of reason.

by a.r. nash  feb. 2012  http://obama–natio.com  http://photobucket.com/obama_bc

10 Responses to The MisConstruence of Minor v Happersett

  1. arnash says:

    In Minor v Happersett the Justice states explicitly that as to the class of citizens born in the country to parents who were its citizens, there has never been any doubts that they are citizens. But there have been doubts as to those born in the country of parents who were NOT its citizens. That clearly describes children who are natural citizens and those who are not, but are instead either aliens or statutory citizens via automatic naturalization.at birth.

    MvH does not “define” natural born citizens, rather it defines the nature of those born in a country to its citizen parents and called them “citizens”, “the natives”, -the “natural born citizens”. It does NOT “define” NBCs as having two parents who are citizens. It merely describes the children of such couples as being natural born.
    That does not mean they are the only natural born citizens because children born abroad to Americans are also Americans by birth, -by the same law as those born domestically, and that law is non-existent. It was never written nor included in the Constitution because it is a natural unalienable right and needed no codification by men to make it so, any more than the right to Life, Liberty,…etc. That right is passed from the father to the children who belong to him and are of him.

    It is politically correct to claim that two citizen parents were described but that view implies two citizens at the time of marriage as well as birth, but that is not what the reality was for a long, long time in America and the world. If an American man married for example a Canadian woman, she was naturalized by marriage and became an American by being his wife. That made her an American mother-to-be, but a naturalized one via traditional policy.

    So what was true then was that one born to a married American father was a natural born citizen, with no need to mention the nationality of the mother because she automatically obtained his if she was born a foreigner. Back then, the only foreign women who could become Americans by naturalization were those married to American men, spinsters, or widows.
    Bottom line is that natural born citizens were those born to American fathers regardless of where on the planet or in the universe they were delivered from the womb. Jus Sanguinis has absolutely no aspect of jus soli in it because it is 100% natural and that means that location is completely irrelevant. Only the father, and his nationality, is relevant. AR Nash

  2. Louis Bricano says:

    arnash writes:

    “Americans parents can bring their natural American children into this universe anywhere, anytime and all that matters is that they themselves are citizens, -not where they are born.” That is flatly incorrect – balderdash. Two American citizen parents who have never lived in the United States – themselves being born abroad – who marry and give birth to a child abroad have not produced an American citizen. The /jus sanguinis/ basis for American citizenship extends one generation only. This is what prevents an American analogue of the Sudeten Germans, that is, generation upon generation of people considered “American” by lineage who have never lived in America. This is a good thing.

    • arnash says:

      You failed to grasp an important word in the statement that you rejected, -that word is “natural”. The children born outside the U.S. to Americans parents who were born and raised outside of the U.S. are not natural American children. The citizenship they possess is not American nor is it natural from the stand-point of nationality because it is in the unnatural middle between foreign jus soli applying to such children, -with American jus sanguinis no longer applying because the homeland of such children is their birthplace and that of their parents, which is the nation to which their grandparents emigrated.

      • Louis Bricano says:

        Sorry, didn’t mean to make two replies, but I didn’t notice another flaw in your reply, and it needs its own reply. You write that a child born abroad to two American parents is not a “natural” American citizen – despite your earlier claim that two American citizen parents can bear their “natural” American child “anywhere” – in part because of the “foreign jus soli applying to such children.” That is wrong as well – many foreign countries, such as all of the Scandinavian and Germanic countries in Europe, do not recognize jus soli citizenship. Until relatively recently, a child born in Germany to aliens never would have been a German citizen. Germany in 1999 amended its citizenship law so that a child born to aliens who cannot transmit their own nationality to the child can, upon reaching the age of majority, claim German citizenship, but the child is not automatically a German citizen, and historically even this very limited application of conditional jus soli citizenship was absent.

        Your claim about American citizen parents being able to bear a “natural” American citizen child “anywhere” is simply wrong.

        arnash reply:
        You failed to understand by previous explanation. The children born to American parents abroad are either natural citizens or they are not, depending on whether or not natural law is in effect. It is not unnatural for creatures and humans to have young outside of their own territory. Their off-spring are natural members of their parents’ group/nation. But if those children grow up and reproduce in the foreign nation where they were born, then even though they themselves are citizens of a foreign land that they’ve never been a part of, -their children (third generation) are not deemed to be members of that foreign land (the USA) because they have no direct connection to it. Their parents were not born there and never lived there, therefore their children’s membership in that distant land is not natural and is therefore not recognized. Natural law no longer applies to make them natural members of their grandparents’ nation.
        Instead, most nations will recognize them as domestic citizens and not foreigners since they were native-born to native-born parents.

  3. Louis Bricano says:

    You are contradicting yourself right and left. If “Americans parents can bring their natural American children into this universe anywhere,” then an American born abroad to two such American parents is, by YOUR definition, a “natural” American citizen. If a generation later, two such foreign-born “natural” American citizens conceive and bear their own child abroad, that child is, by YOUR definition again, a “natural” American citizen, and the chain can continue indefinitely – precisely what Congress intends to prevent with its statutes regarding Americans born abroad.

    You’ve painted yourself into a corner with this word “anywhere”, and in fact you are wrong: no, two American parents CANNOT bring their “natural” American child into the world “anywhere.”

    • arnash says:

      The problem is conceptual. Americans born and raised abroad cannot give birth to natural American children unless their children are born and raised in the United States. Otherwise they will have no real-world connection to the United States. So what is meant by the statement “Americans parents can bring their natural American children into this universe anywhere,” only pertains to parents born and raised in their homeland of the USA. Their children are natural Americans regardless of where they are born.

  4. Louis Bricano says:

    “So what is meant by the statement ‘Americans parents can bring their natural American children into this universe anywhere,’ only pertains to parents born and raised in their homeland of the USA. Their children are natural Americans regardless of where they are born.” In addition to being a furious retreat from the logic of what you originally wrote, it’s simply false. ANY American born abroad is a citizen purely by congressional statute. Congress could and has changed the law repeatedly.

  5. arnash says:

    In what universe is an affirmation and clarification considered to be a “furious retreat”? Apparently, you are still not understanding the meaning of my words and the primacy of Natural Law. What you need to grasp is that some Americans born abroad are dependent on naturalization statute (because they have a foreign parent) while natural Americans born abroad are not dependent on any statute because Congress possesses no authority over natural citizenship, -only over the citizenship of those who are not natural citizens.
    Any and all statutes that declare the citizenship of natural Americans born abroad is not the source of their citizenship, -it’s merely a declaration of a natural fact which was written for the instruction and policy formation of the State Department and Immigration Service. It is imperative that they do not treat American children as foreigners that need naturalization or naturalization law in order to be what they are naturally by birth.

    As for Congress, they can pass anything they want and the Constitution is not a policeman to stop them regardless of how unconstitutional their statutes might be, such as the Obama-care individual mandate, nor is there any serious restraint against unconstitutional policy executed by the executive branch, -as frightfully demonstrated by Wickard v Filburn in 1942 and Fast & Furious gun-walking.
    In American law, the reality of American citizenship has only been demonstrated well in the language of the Uniform Naturalization Act of 1790 which ordered everyone (the nation’s governments, immigration authorities, and courts) to view natural American children born abroad as being the natural born American citizens that they are, -and not foreigners needing naturalization or permission of the government for recognition of the citizenship with which they are born.
    There’s a huge world of difference between stating for the record a pre-existing fact, and making something a fact via constitutionally granted authority. Understand this; natural Americans are Americans by birth, -not by law, -not by Congress, not by the Supreme Court, and also not by the Constitution. By birth means by nature and nature means not-by-law. Nature and Law are two very different realms. Those who have no natural citizenship are dependent on law to possess it. No one who is dependent of law for their citizenship is a natural citizen and eligible to be the President. No one who can point to a statute or amendment as being the source of their permission to be a citizen is a natural born citizen. Those things did not even exist when the nation was founded and have no relationship to natural citizenship.

  6. Louis Bricano says:

    Sorry, but there’s simply no such thing as a “natural” American born abroad. Any person born abroad to two American citizen parents is an American citizen, if at all, ONLY due to statute.

  7. arnash says:

    There is simply no such thing as a natural lion born abroad from Africa. Every lion born outside of Africa is not a natural lion, it is a lion by law, by statute, by zoo, by …. It’s membership in the lion family is purely by permission, not by nature. I can’t show you what that law is but I demand that you take my word for it. I KNOW that it exists AND that I understand it fully and cannot possibly be misconstruing what it says. So there. That’s the final word. No need to think any further about it because I’ve just settled the issue.

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