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.”
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.