One of the two-citizen parent Birthers, Leo Donofrio, is really doubling down on the Minor v. Happersett case as being precedent for determining natural born citizenship, and is acting like some minor boo-boos (pun intended) linking the case on a internet law research website, Justia, is the crime of the century. According to this alternate reality theory, this 1875 women’s voting rights case, defined natural born citizenship, even though the judges in that case clearly said they did not need to resolve that issue. Here is Donofrio’s latest off-planet trip:
About alternate realities, Wiki says:
A parallel universe or alternative reality is a hypothetical self-contained separate reality coexisting with one’s own. While the terms “parallel universe” and “alternative reality” are generally synonymous and can be used interchangeably in most cases, there is sometimes an additional connotation implied with the term “alternative reality” that implies that the reality is a variant of our own.
Typically, parallel universes fall into two classifications. The first may be more accurately called a “diverging universe” whereby two versions of Earth share a common history up to a point of divergence. At this point, the outcome of some even happens differently on the two Earths and the histories continue to become more different as time elapses since that point.
It is like the stories where everything on Earth is the same, up until the Nazi Germans get the atomic bomb first, and win World War II. That is the same type of thing that Leo Donofrio and the other Vattle Birthers (my humorous term for the Vattel disciples) are trying to put over on people. That in 1875, the Minor v. Happersett case provided the definition of natural born citizenship. Fortunately, we can determine if this theory is fact or fiction by reviewing the history since 1875 to see if reality really did diverge down the two-citizen parent path as it would have if Donofrio was right.
Following are 21 instances ranging from mundane entries in encyclopedias to law review articles and even a SCOTUS case, where the reality of this universe diverges from the alternate reality universe of Leo Donfrio. Timewise, these examples begin shortly after the Minor v. Happersett decision and cover the time period until the 2009 “One To Grow On.” This list could easily have been 5 times as long. In none of these instances is there even a whiff of the two-citizen parent foolishness. Most flatly state the exact opposite, that natural born simply means born in the United States.
1. 1876 the American Law Review mentioned Minor v. Happersett as a voting rights case, and says nothing about the case defining natural born citizenship.
2.1876 Tuttle’s New History of America by Charles Tuttle:
13. — The Executive. This power is vested in the President, who is chosen by electors from the several states, and his term of office is four years. Every state is entitled to as many electors as it has senators and representatives in Congress. The Vice President who is ex-officio President of the senate, and who in certain events may become President of the United States, is chosen in a similar manner at the same time with the President. The Chief Executive and the Vice President must be native born citizens of the United States, residing within the states fourteen years, and the Constitution further demands that they shall have attained the age of thirty-five years.
3. 1878 Elements of International Law by Henry Wheaton:
There is no uniform rule among nations by which the nationality of a person may be determined from the place of his birth. England, America and the majority of South American states claim all who are born within their dominions, as natural born birth in subjects or citizens, whatever may have been the parents’ nationality;
4. 1879 Outline for Civil Governement Designed For Common Schools by W.. Thatcher:
Art. II., Sec. i, Clause 5.—Qualifications of the President.
No person, except a natural born citizen, or a citizen of the United States, at the time of the adoption of this Constitution, shall be eligible to the office of President; neither shall any person be eligible to that office who shall not have attained to the age of thirtyfive years, and been fourteen years a resident within the United States.
(a.) Natural born.—Born in the United States. Our state constitution does not thus limit the office of its executive.
(6.) Fourteen years resident.—That he may be thoroughly conversant with its affairs. He may be absent from the United States as an ambassador, or in official duty as a United States officer. Buchanan was minister at the Court of St. James (Great Britain), when nominated for President.
5. 1880 Chester Arthur runs for Vice-President. His father was Irish, and not a citizen when Arthur was born, but the only objections to his eligibility were that Arthur was born in either Ireland, or in Canada. The Vattle Birthers try to explain this away claiming that nobody knew Arthur’s father was Irish, but that claim falls flat in light of the fact his political opponents accused Chester Arthur of being born in Ireland.
6. 1881, Judge Waite swears in Chester Arthur. Waite, who wrote the Minor v. Happersett decision, actually swears in Chester Arthur as President, even though he supposedly ruled 6 years earlier that it took two citizen parents to be a natural born citizen.
7. 1883, An exposition of the constitution of the United States By Albert Orville Wright.
All persons born in the United States, except wild Indians, are natural-born citizens, and any foreigner
may become an adopted citizen by being naturalized. (See page 88.)
8. 1886, Outlines of international law: with an account of its origin and sources and … By George Breckenridge Davis
(d.) The municipal laws of every state enumerate and define the rights and privileges which may be acquired by its naturalized citizens. In no case do such persons acquire all the privileges of native-born citizens. The most usual restrictions apply to the holding of political and military office, the highest grades of which, in every state, can only be filled by native-born citizens. In the United States, whose policy of naturalization is extremely liberal, the offices of President and Vice-President can only be held by native-born citizens.
9. 1888 The student’s law lexicon: a dictionary of legal words and phrases : with … By William Cox Cochran
Natural, according to nature; not artificial, exceptional, or violent. Natural allegiance, that perpetual obedience which is due from all natural-born subjects to their sovereign, as distinguished from local allegiance, which is only temporary. Natural-born citizens, those that are born within the jurisdiction of a national government; i.e., in its territorial limits, or those born of citizens, temporarily residing abroad.
10. 1889 Encyclopedia Brittanica.
That Congress shall be in session on the second Wednesday of February succeeding every meeting of the electors, and the certificates trom them shall then be opened, the votes counted and the persons to fill the offices of President and Vice-President ascertained and declared agreeably to the Constitution. It provides also that no one shall be eligible to these offices unless he be 35 years old and be born in the United States.
11. 1898, The American passport: its history and a digest of laws, rulings and … By United States. Dept. of State, Gaillard Hunt
CITIZENSHIP BY NATIVITY.
All persons born in the United States, except such as are born in foreign embassies or legations and Indians untaxed, are natural-born citizens of the United States; and a person born abroad whose father was at the time of his birth a citizen. . .
12. 1898, David Shephard Garland et al, THE AMERICAN AND ENGLISH ENCYCLOPEDIA OF LAW, 2d Ed. Vol. 6 (1898):
[Citizenship Chapter – How Citizenship Acquired]
2. By Birth in Jurisdiction. — Natural citizenship is created by birth within the jurisdiction of the United States.1 To be a citizen of the United States  by reason of birth, a person must not only be born within its territorial limits, but must also be born subject to its jurisdiction; that is, in its power and obedience.
13. 1898 Wong Kim Ark. SCOTUS case which does NOT cite Minor v. Happersett to define natural born citizenship, and instead cites the case for holding that the term must be defined by resort to English common law, and for the statement that there are only two sources of citizenship those being birth and naturalization.
More importantly, and what must really sting the Vattle Birthers, is that Minor v. Happersett is NOT even cited by the dissent in Wong Kim Ark for the purposes of defining citizenship.
14. 1910 Raleigh C. Minor, Address on the Citizenship of Individuals …, PROCEEDINGS OF THE AMERICAN SOCIETY FOR INTERNATIONAL LAW (1910)
Note: Mr. Minor was Professor at the University of Virginia (per above link).
“I. Citizenship of the United States.
This subject must be discussed with reference to two distinct periods in our history, the first, from the inception of the Constitution to the passage of the Fourteenth Amendment in 1868; the second, from the passage of the Amendment to the present.
The original Constitution had conferred upon Congress the express power to “establish an uniform rule of naturalization,” and had declared that “no person except a natural-born citizen * * * shall be eligible to the office of President.” It had also, in defining the eligibility of Senators and Representatives in Congress, declared that they shall have been “citizens of the United States” for a prescribed period. Thus, the Constitution itself recognized that there was a classification of citizens into natural-born and naturalized, but it nowhere defined who should be deemed citizens.
Where then was the government to look for a definition? The natural answer, in view of our system of municipal law, was to con-sult the common law of England, to which we had been subject as Colonies, and to modify that by such legislative acts of Congress as might be needful to adapt it to our conditions. At least this was what was actually done, and the right of Congress, under the original Constitution, thus to modify the common-law doctrine as it might see fit, has never been seriously questioned.
The rule of the common law is that citizenship turns upon the place of birth, and that one born within the jurisdiction, even though of alien parents, is a citizen by birth, or, as the Constitution expresses it, a natural-born citizen; and this rule has been very generally recognized and enforced by all the departments of the government. United States v. Wong Kim Ark, 169 U. S. 655 et seq.; Lynch v. Clarke, 1 Sandf. Ch. (N. Y.) 583; 9 Ops. Atty.-Gcn. 373; 10 Id. 382, 394.”
15. 1914 Andrew C. McLaughlin & Albert Bushnell Hart ( Ed.), CYCLOPEDIA OF AMERICAN GOVERNMENT Vol. 2 (1914).:
“NATURAL BORN CITIZENS. A natural-born citizen of the United States is one who is a citizen by reason of his place of birth or the citizenship of his father. The two classes of naturalized and natural born citizens are thus mutually exclusive, and together constitute the entire citizen body of the United States. The Fourteenth Amendment (see) as construed in the case of United States vs. Wong Kim Ark (169 D. 8. 649) provides that every person born within the territorial limits of the United States, even though his parents be aliens, and of a race the members of which are by law excluded from naturalization, are natural-born citizens. Under certain circumstances persons born outside the territorial limits of the United States are deemed natural-born citizens, as for example, children of American citizens visiting or traveling abroad. The father must, however, at some time have resided in the United States. Only natural-born citizens are eligible to the offices of President and Vice-President. See Citizenship In The United States; Naturalization, Law of. References: G. W. Garner, Intro, to. Pol. Sci. (1910), ch. xi; F. Van Dyne, Citizenship of U. S. (1904).”
16. 1967 McElwee, unpublished article reprinted in 113 Cong. Rec. 15,875 at 15,876 (1967)
As quoted by Pryor (881, n.2):
“It is clear that under the English common law this term ‘natural born’ meant ‘native born.’… It was this genuine ‘native-born’ citizen … to which the framers of the Constitution referred when they used the term ‘natural-born citizens’ as one of the qualifications for the President”
17. 1968 Gordon, Who Can Be President of the United States: The Unresolved Enigma, 28 Md. L. Rev. 1, at 7-8 (1968)
As quoted by Pryor (881, n.2) – In arguing that both those born in the U.S. and those born outside the U.S. to US citizen parents are eligible to be President:
“[T]he leading British authorities agree that under the early common law, status as a natural-born subject probably was acquired only by those born within the realm, but that the statutes .. enabled natural-born subjects to transmit equivalent status at birth to the children born to them outside of the kingdom . . . . There was no warrant for supposing that the Framers wished to deal less generously with their own children.”
18. 1988 Jill A.Pryor, The Natural-Born Citizen Clause and Presidential Eligibility: An Approach for Resolving Two Hundred Years of Uncertainty, 97 Yale L.J. 881, at 881 and n. 2 (1988)
“It is well settled that “native-born” citizens, those born in the United States, qualify as natural born.” “Native-born citizens are natural born by virtue of the nearly universal principle of jus soli, or citizenship of place of birth.” [881 and n.2].
“…. It has never been suggested that Congress has the power to deny natural born status to native borns. Here it might be helpful to distinguish between the power to define the clause (e.g., to say that “natural born” means “born in California”) and the power to naturalize from birth (to include additional classes of people within the scope of the clause). Congress has only the latter power under the Constitution. Thus Congress can expand the category of natural-born citizens to encompass more than simply native borns, but it may not contract the category below the native born minimum set by the Fourteenth Amendment.” [892, n. 65].
19. 1995 Walter Dellinger (AAG), Statement before the Subcommittees on Immigration and Claims and on the Constitution of the House Committee on the Judiciary (Dec. 13, 1995)
Note: Per Wikipedia (and sources cited therein), Dellinger served as the acting United States Solicitor General for the 1996-1997 Term of the Supreme Court under President Bill Clinton. Prior to his appointment – when he submitted this statement to Congress – Dellinger was an Assistant Attorney General and head of the Office of Legal Counsel.
The Court, [Wong Kim Ark] in a detailed review of the Anglo-American common law of citizenship and the legislative history of the Fourteenth Amendment, established several propositions. First, because the Constitution does not define United States citizenship, it must be interpreted in light of the common law. Under the common law of England, which was adopted by the United States, every child born within the territory of alien parents was a natural-born subject, with the exception of children born of foreign ambassadors, of alien enemies during hostile occupation, and of aliens on a foreign vessel.
20. 2005 Edwin Meese, et al, THE HERITAGE GUIDE TO THE CONSTITUTION (2005):
“Under the longstanding English common-law principle of jus soli, persons born within the territory of the sovereign (other than children of enemy aliens or foreign diplomats) are citizens from birth. Thus, those persons born within the United States are “natural born citizens” and eligible to be President. Much less certain, however, is whether children born abroad of United States citizens are “natural born citizens” eligible to serve as President …”
“In United States v. Wong Kim Ark (1898), the Supreme Court relied on English common law regarding jus soli to inform the meaning of “citizen” in the Fourteenth Amendment as well as the natural-born-citizenship requirement of Article II, and noted that any right to citizenship through jus sanguinis was available only by statute, and not through the Constitution. Notwithstanding the Supreme Court’s discussion in Wong Kim Ark, a majority of commentors today argue that the Presidential Eligibility Clause incorproates both th3 common-law and English statutory principles, and that therefore, Michigan Governor George Romney, who was born to American parents outside of the United States, was eligible to seek the Presidency in 1968.”
21. 2005 Sarah Helene Duggin & Mary Beth Collins, ‘Natural Born’ in the USA: The Striking Unfairness and Dangerous Ambiguity of the Constitution’s Presidential Qualifications Clause and Why We Need to Fix It, 85 B.U. L. Rev. 53, 90-91 (2005)
“United States citizens born to parents subject to United States jurisdiction in one of the fifty states are unquestionably natural born citizens. Even the narrowest reading of the Fourteenth Amendment dictates that all current states are in the United States. This is true regardless of parental citizenship, unless a child’s parents are protected by the full immunity extended to foreign diplomats and their families, or they are enemy combatants.”
Above are 21 instances where the reality of this universe and this planet, do not seem to agree with Mr. Donofrio’s alternate reality. Let give him one more to grow on, from Ankeny v. Governor in 2009, which may help explain to Mr. Donofrio and his disciples why this Reality did not go down his divergent two citizen-parent path:
Id. at 167-168. Thus, the [Minor] Court left open the issue of whether a person who is born within the United States of alien parents is considered a natural born citizen.12
Based upon the language of Article II, Section 1, Clause 4 and the guidance provided by Wong Kim Ark, we conclude that persons born within the borders of the United States are “natural born Citizens” for Article II, Section 1 purposes, regardless of the citizenship of their parents.
Pretty simple. The case did not define natural born citizenship and, two citizen parents are not a requirement. Duh!!!
For what it is worth, the 21 instances above could just as easily been 100 or more instances. Donofrio’s alternate reality universe, where Minor v. Happersett supposedly defined natural born citizenship in 1875 as requiring two citizen parents, badly needs a Vinny Gambini (from My Cousin Vinny) to ask the equivalent of, “Well, I guess the laws of physics cease to exist on top of your stove. Were these magic grits? Did you buy them from the same guy who sold Jack his beanstalk beans? Sooo:
Well, Mr. Donofrio, I guess the laws of physics and common sense cease to exist on top of your computer desk. Was this a magic case? Did you learn about it from the same guy who sold Jack his beanstalk beans???
Note 1: The WABAC Machine. Wiki says:
The WABAC Machine (pronounced, and often synonymous with, Way-back) refers to a fictional machine from the cartoon segment Peabody’s Improbable History, an ongoing feature of the 1960’s cartoon series The Rocky and Bullwinkle Show. The WABAC Machine is a plot device used to transport the characters Mr. Peabody and Sherman back in time. The meaning of the acronym is unknown, but mid-century, big-science project names, such as ENIAC, UNIVAC, and JOHNNIAC, often ended in “AC”.
As in the original cartoon, the Wayback Machine is often invoked to suggest the audience follow the narrator back to the past. Frequently such visits to the past are trips of nostalgia, remembering times, places, or things of the not-so-distant past. One example of popular usage occurred in “Goofy Ball”, a 1995 episode of the TV show NewsRadio, when station owner Jimmy James (Stephen Root) says: “Dave, don’t mess with a man with a Wayback Machine. I can make it so you were never born.
The Wayback Machine of the Internet Archive was named after the WABAC.
Note 2. Source: Items at Numbers 12,14,15,16,17,18,19,20, and 21 above may be found at:
Note 3. Source of google books cites above: All of the cites above which contain a google book cite came from this website, where you can easily read a 100 instances which contradict the Donofrio nonsense interpretation of Minor v. Happersett:
Note 4: Here are the seven simple sentences from Minor v. Happersett which cause so much confusion to the two citizen-parent Birthers:
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.