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The Missing Link

Anthropologists Theorized The Homo Para-Cletus Evolutionary Branch Was Missing A Few Twigs

There is a Two -Citizen Parent Birther by the name of Leo Donofrio (aka The Paraclete) who is pushing a theory that Justia, an online publishing company, has twiddled with the links and citations to the case of Minor v. Happersett, an 1875 voting SCOTUS voting rights case which held the 14th Amendment did not grant women the right to vote.  Lacking any semblance of a legal case to support their idiotic theory that it takes two citizen parents for a person to be a natural born citizen, these individuals have latched onto Minor v. Happersett with both hands trying to mis-represent it as such a case.

This has been discussed at length at The Birther Think Tank, but in brief, the Vattle Birthers (my sarcastic name for the two-citizen parent Birthers because of their reliance on French law, and Emerich de Vattel) have tried to twist this paragraph from Minor v. Happersett into having resolved doubts about children of foreign parents, even though the court says clearly it is NOT resolving those doubts.

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.

To elevate the importance of this case, the Vattle Birthers are now trying to pretend this case was purposely hidden from the world to keep people from knowing about it during Obama’s election. This is absurd, because the case does not make any attempt to define a natural born citizen, and even if it did what the Vattle Birthers claimed, it would have been overturned by Wong Kim Ark case 23 years later. All this, and other problems with the Vattle Birther’s Theory are discussed in multiple articles here. The purpose of this Internet Article is to simply to review some of Mr. Donofrio’s Missing Links and see what they reveal.

First, here is the link to Donofrio’s (aka The Paraclete)latest Internet Article on this nonsense:


Now, let’s look at some of those wonderful cites!

Boyd. v. Nebraska, 143 U.S. 135 (1892). [Dealt with evidence of naturalization process]

As remarked by Mr. Chief Justice Waite in Minor v. Happersett, 21 Wall. 162, 88 U. S. 167:

“Whoever, then, was one of the people of either of these states when the Constitution of the United States was adopted became ipso facto a citizen — a member of the nation created by its adoption. He was one of the persons associating together to form the nation, and was consequently one of its original citizens. As to this there has never been a doubt. Disputes have arisen as to whether or not certain persons or certain classes of persons were part of the people at the time, but never as to their citizenship if they were.”

Rogers v. Bellei, 401 U.S. 815 (1971). [Dealt with naturalization process outside of the country.]

169 U.S. at 169 U. S. 702-703. The Court in Wong Kim Ark thus stated a broad and comprehensive definition of naturalization. As shown in Wong Kim Ark, naturalization, when used in its constitutional sense, is a generic term describing and including within its meaning all those modes of acquiring American citizenship other than birth in this country. All means of obtaining American citizenship which are dependent upon a congressional enactment are forms of naturalization. This inclusive definition has been adopted in several opinions of this Court besides United States v. Wong Kim Ark, supra. Thus, in Minor v. Happersett, 21 Wall. 162, 88 U. S. 167 (1875), the Court said:

“Additions might always be made to the citizenship of the United States in two ways: first, by birth, and second, by naturalization. . . . [N]ew citizens may be born, or they may be created by naturalization.”

City of Mobile v. Bolden, 446 U.S 55 (1980) [A voting rights case.]

More than 100 years ago, the Court unanimously held that “the Constitution of the United States does not confer the right of suffrage upon anyone. . . .” Minor v. Happersett, 21 Wall. 162, 88 U. S. 178.

Snowden v. Hughes, 321 U.S. 1 (1944) [A voting rights case.]

Minor v. Happersett, 21 Wall. 162, 88 U. S. 170-178; Pope v. Williams, 193 U. S. 621, 193 U. S. 632; Breedlove v. Suttles, 302 U. S. 277, 302 U. S. 283, is a right or privilege of state citizenship, not of national citizenship, which alone is protected by the privileges and immunities clause.

So, after reviewing these four cites, none of the cases dealt with natural born citizenship. One cite specifically notes the Minor Court had doubts. The remaining two were voting rights cases. Not a single case about natural born citizenship, and not one single case having any relation whatsoever to Obama’s situation. Then, the keen-eyed Girl Reporter discovered an actual case of cite scrubbing!!!  Here it is, in all its glory:

The Donofrio Shuffle (2011)

Mr. Donofrio pulls a cute trick. He accuses Justia of scrubbing the Wong Kim Ark case of this link. Just click on the image to make it larger and easier to read:

How To Do The Donofrio Shuffle: You Put The Wrong Quote In, You Take The Right Quote Out; You Put The Wrong Quote In, And You Twist It All About. . .

BUT, Donofrio does a little scrubbing and history re-writing of his own. He provides an incorrect quote from Scott v. Sandford, which is more famously known as the  Dred Scott case The case is cited in Wong Kim Ark, but here is the actual quote, not what Donofrio said it was:

In Dred Scott v. Sandford, (1857) 19 How. 393, Mr. Justice Curtis said:

The first section of the second article of the Constitution uses the language, “a natural-born citizen.” It thus assumes that citizenship may be acquired by birth. Undoubtedly, this language of the Constitution was used in reference to that principle of public law, well understood in this country at the time of the adoption of the Constitution, which referred citizenship to the place of birth.

19 How. 576. And, to this extent, no different opinion was expressed or intimated by any of the other judges.

Busted Donofrio. Cold Busted. Slipping in the words you like, and leaving out what the majority decision actually said. And where exactly does one  find the words quoted by Mr. Donofrio? They are NOT in Minor v. Happersett. They are NOT in Wong Kim Ark in the majority decision. They are in the Wong Kim Ark DISSENT, the losing side. Where, oh where might those words have come from??? Let’s see, what did Donofrio say, again, from the image above:

and Scott v. Sandford (removed from US v. Wong Kim Ark) which features the following definition of natural-born citizen:

The natives, or natural-born citizens, are those born in the country, of parents who are citizens.

Sound familiar? It’s the same definition of natural-born citizen as in Minor v. Happersett

Well, come to find out those words are NOT the same definition as because Minor v. Happersett  is kind of doubt-y when it comes to the whole issue. Those words come from Emerich de Vattel’s Law of Nations.  They are cited on page 476 of the Dred Scott by Justice Daniel as part of a general citizenship discussion to the effect that slaves were not citizens, and that Dred Scott lacked the standing to sue. It started with Justice Daniel stating:

Hence it follows necessarily that a slave, the peculium or property of a master, and possessing within himself no civil nor political rights or capacities, cannot be a CITIZEN. For who, it may be asked, is a citizen?

To decide who are citizens (not natural born citizens) Justice Daniel quotes from Vattel’s Law of Nations, and also quotes from Roman law. Some of this he got from Edward Gibbon’s book,  The Decline and Fall of the Roman Empire, and some just from Roman Law. Here is a small excerpt:

The above account of slavery and its modifications will be found in strictest conformity with the Institutes of Justinian. Thus, in book 1st, title 3d, it is said: “The first general division of persons in respect to their rights is into freemen and slaves.” The same title, sec. 4th: “Slaves are born such, or become so. They are born such of bondwomen; they become so either by the law of nations, as by capture, or by the civil law.”

I guess Leo Donofrio would feel equally comfortable with feeding Christians to lions which was legal under Roman law.  The point is, that the place where Donofrio found the words in the case, what they were being quoted for had nothing to do with determining what a natural born citizen was in a legal sense. The Law of Nations book had no greater legal impact than The Decline and Fall of the Roman Empire book.  Which is some more of the slipperiness that you saw above with the other cases.

But you know, when you are busy re-writing legal history yourself,  what is a little French or Swiss law slipped in every once in while. Plus, phrasing it that way makes the whole thing sound sooo much more definite. Not all doubt-y and wishy-washy like what you really find in Minor v. Happersett.

Mr. Donofrio, have you no shame???

Squeeky Fromm
Girl Reporter

Note 1: What is a Missing Link???  The term “missing link” refers to a species between ape and man which would prove the evolution of humans from apes.  While some people think this makes men out of monkeys, the opposite is also true and some people have made monkeys out of men. For example, take the Piltdown Man. Wiki says:

The Piltdown Man was a hoax in which bone fragments were presented as the fossilised remains of a previously unknown early human. These fragments consisted of parts of a skull and jawbone, said to have been collected in 1912 from a gravel pit at Piltdown, East Sussex, England. The Latin name Eoanthropus dawsoni (“Dawson’s dawn-man”, after the collector Charles Dawson) was given to the specimen. The significance of the specimen remained the subject of controversy until it was exposed in 1953 as a forgery, consisting of the lower jawbone of an orangutan that had been deliberately combined with the skull of a fully developed modern human.

The Piltdown hoax is perhaps the most famous paleontological hoax ever. It has been prominent for two reasons: the attention paid to the issue of human evolution, and the length of time (more than 40 years) that elapsed from its discovery to its full exposure as a forgery. The identity of the Piltdown forger remains unknown, but suspects have included Arthur Conan Doyle, the creator of Sherlock Holmes.

Note 2: Homo Para Cletus: The Birther Think Tank suspects Homo Para-Cletus may be such a missing link, bridging the gap between a group of apelike hominids known as Australopithicus, which first emerged in Africa around 3.9 million years ago, and Homo Habilis, the first species to be described as distinctly human, which began to appear around 2.5 million years ago.

Note 3:  While reviewing this Internet Article, I re-read what Mr. Donofrio wrote, and it is possible he was referring to Wong Kim Ark and the quote from Minor v. Happersett being similar to the Emerich de Vattel quote,  “The natives, or natural-born citizens, are those born in the country, of parents who are citizens.”  It is difficult to tell. If so, then Mr. Donofrio is ever further FRIED, as I will show below.

First, you will find the proper quote from Dred Scott, as provided above,  in Section III of the  Wong Kim Ark decision.  Immediately following the Dred Scott quote in Section III of the case, you will find this quote from U.S. v. Rhodes. (Remember this section number, because it becomes important later on):

19 How. 576. And, to this extent, no different opinion was expressed or intimated by any of the other judges.

In United States v. Rhodes (1866), Mr. Justice Swayne, sitting in the Circuit Court, said:

All persons born in the allegiance of the King are natural-born subjects, and all persons born in the allegiance of the United States are natural-born citizens. Birth and allegiance go together. Such is the rule of the common law, and it is the common law of this country, as well as of England. . . . We find no warrant for the opinion [p663] that this great principle of the common law has ever been changed in the United States. It has always obtained here with the same vigor, and subject only to the same exceptions, since as before the Revolution.

1 Abbott (U.S.) 28, 40, 41.

How SELECTIVE Mr. Donofrio is in what he presents to the readers of his blog, and the public.  First, he swaps Dred Scott quotes, and then ignores the quote from U.S. vs. Rhodes right after the one he just scrubbed out,  which completely contradicts Mr. Donofrio’s whole two citizen parents theory. Donofrio had to be there reading the Wong Kim Ark case to do the scrubbing.  Did he miss it on purpose or on accident?  That is for you to decide. Whichever, you get a little taste of why Mr. Donofrio and his Vattle Birther buds try to steer clear of Wong Kim Ark.  Hitching a ride on the WayBack Machine to 23 years before Wong Kim Ark and landing on Minor v. Happersett in 1875 is a great alternative to having to explain all that troubling language one finds in 1898.

But, on the other hand,  even if Donofrio  was trying to say that those words either came from Wong Kim Ark,  or are similar to the Minor v. Happersett language, then he is still playing games.  Those similar words from Minor v. Happersett are NOT being quoted by Wong Kim Ark for the purposes of defining natural born citizenship. Which means Mr. Donofrio either never read Wong Kim Ark and that is why he didn’t know why Minor v. Happersett was being quoted, which is pretty bad if you are a lawyer and don’t understand the most important citizenship case of all. Or, it means that he is trying to mis-lead people about the Minor Happersett case, and does not want people to know that the case wasn’t quoted to define natural born citizenship. Remember, Wong Kim Ark was the very first SCOTUS case which defined natural born citizenship.

The Wong Kim Ark case is provided here at the top of this page, in the header, so you can verify what I am about to tell you for yourself.  The particular Minor v. Happersett quote is found in Section V of the decision, which discussed the 14th Amendment.   Here is how those words from Minor v. Happersett came to be in Wong Kim Ark.

In a previous case, the Slaughterhouse Cases, which were decided in 1873, 2 years before Minor v. Happersett in 1875, one of the judges, Justice Miller, made a comment which the losing side in Wong Kim Ark tried to use to say that the 14th Amendment did not apply to foreigners. From the Wong Kim Ark case, with my italics and bolding:

Mr. Justice Miller, indeed, while discussing the causes which led to the adoption of the Fourteenth Amendment, made this remark:

The phrase, “subject to its jurisdiction” was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States.

16 Wall. 73. This was wholly aside from the question in judgment and from the course of reasoning bearing upon that question. It was unsupported by any argument, or by any reference to authorities. . .

To show that remark was not the intent of either Justice Miller, or the other Slaughterhouse Cases judges, the Wong Kim Ark judges said that could not have been what those judges meant, because just 2 years later in Minor v. Happersett, those same judges said that “allegiance and protection” in connection to citizenship, were “reciprocal obligations.” Here is the exact wording from Wong Kim Ark:

That neither Mr. Justice Miller nor any of the justices who took part in the decision of The Slaughterhouse Cases understood the court to be committed to the view that all children born in the United States of citizens or subjects of foreign States were excluded from the operation of the first sentence of the Fourteenth Amendment is manifest from a unanimous judgment of the Court, delivered but two years later, while all those judges but Chief Justice Chase were still on the bench, in which Chief Justice Waite said: “Allegiance and protection are, in this connection” (that is, in relation to citizenship),

reciprocal obligations. The one is a compensation for the other: allegiance for protection, and protection for allegiance. . . . 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 [p680] 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. It is sufficient for everything we have now to consider that all children born of citizen parents within the jurisdiction are themselves citizens.

Minor v. Happersett (1874), 21 Wall. 162, 166-168. The decision in that case was that a woman born of citizen parents within the United States was a citizen of the United States, although not entitled to vote, the right to the elective franchise not being essential to citizenship.

Note, that the Minor v. Happersett quote is NOT being accepted by the judges to define natural born citizenship. The Wong Kim Ark judges consider it a voting rights case.  The case is simply being quoted here for the purpose of refuting an alternative interpretation of another case having nothing to do with natural born citizenship. Mr. Donofrio, however, claims either those words, or similar language is being quoted to define natural born citizenship, which had already been defined by the Wong Kim Ark judges in Sections II and III of the case.   Oh well. I guess when it comes to scrubbing and re-writing legal history, what is true of certain smelly forms of hot air,  holds true here, and the faker is the maker.

Note 4: Cold Busted means:

To get caught doing something you shouldn’t and are  convicted guilty of said act to 100% certainty.  Usually by your trifling girlfriend.

“Yo. My girl walked in on me in bed with her sister. Tried to tell her it wasn’t me.”
“Dawg, you got Cold Busted!”

Note 5:  I had to edit this Internet Article some, once I found out where it was in the Dred Scott decision that Donofrio was pulling the Vattel language.  He was not nice enough to tell people what purpose the language was being quoted for, or that it was located in a concurring opinion.  Sooo I had to read the whole case to bust him out.  But, the WayBack Machine can probably document the changes if that kind of stuff interests you.

Bonus: Alternative Image for this Internet Article:

The Plane Facts Knocked Homo-Para Cletus Off His Perch