[To start at the very beginning, click here.]
“Four Supreme Court Cases”In the fall of 2009, a blog called “The Post & Email” ran an article which claimed that four US Supreme Court cases had defined the term “natural born citizen.”
The four cases named were The Venus (1814), Shanks v Dupont (1830), Minor v Happersett (1875), and US v Wong Kim Ark (1898). We’ve looked at two of these already. The other two have been analyzed and discussed at length; and we will summarize what they actually mean in this section, with links to more info.
The author of the article, “John Charlton,” seems to have since retired from the scene. But others took up the mantra, such as Leo Donofrio (now also retired) and Mario Apuzzo. They have claimed, particularly, that Minor v Happersett provided a “binding precedent” that two citizen parents are required to be eligible to be President. The claim has obviously been directed at the current President of the United States, Barack Obama. Literally dozens of lawsuits have followed across the country challenging his eligibility.
As an aside, it has bothered me somewhat that there seemed to be almost no information available as to who this “John Charlton,” founder of The Post & Email, actually was. No professional details. No real contact information. No nothing. Who was this shadowy, semi-anonymous figure? I finally began to wonder whether he might actually be a well-connected political operative of some sort running a clandestine smear campaign, or simply a pseudonym for the Post & Email’s current editor, Sharon Rondeau.
Although it wasn’t particularly easy to find out, I now know a very good deal about the founder of The Post & Email, the author of the “Four Supreme Court Cases” article. No, I won’t publish any of his personal details, as he has chosen to keep those private. Suffice it to say, he does exist, and he is not Sharon Rondeau. Nor is he a famous person. As far as I can tell, he doesn’t seem to be some well-connected political operative, either. His profession is neither politics nor law, and he appears to be just what he claimed to be — a “citizen journalist.”
Be that as it may, those who seek to take on such a role have a responsibility to report accurately to the public. And this author, whether inadvertently or not, has stirred up a good deal of mischief through his authoritative-sounding misinterpretation of Constitutional law.
There’s another lesson here, for those who read things on the internet: If someone is not willing to step forward and provide full details of exactly who they are and what their qualifications are, that in itself may be an indication that any information from that source ought to be fully and personally confirmed before you believe it.
Of course, that can be said of a lot of things, and being able to personally identify someone is no guarantee at all that they are providing good information. There are plenty of publicly-identifiable people telling complete falsehoods. But at least it’s a start.
Having tested and evaluated those cases, we will now go over the last of the four, and touch on a couple of other late 1800′s matters as well. Our sources for this period of American history include:
- US Supreme Court: Minor v Happersett (1875)
- Alexander Porter Morse’s Writings on Citizenship (1881, 1904)
- Chester A. Arthur’s Presidency (1881-1885)
- Elk v Wilkins and Chester A. Arthur’s State of the Union Speech (1884)
- US State Department Policy in the 1880s & 1890s
- US Supreme Court: US v Wong Kim Ark (1898)
US Supreme Court: Minor v Happersett (1875)
Minor v Happersett was an 1875 case in which the Supreme Court ruled that being a citizen did not give Virginia Minor, or any other woman, the right to vote. As someone has aptly pointed out, the ruling in this case was voided by the Nineteenth Amendment!
1. That raises the obvious question of how a case whose ruling was entirely voided by Constitutional Amendment could possibly set a “binding precedent” as to anything.
Aside from that, the claim that this case means one has to have two citizen parents to be President has been beaten to death, and is false for several other reasons as well.
2. The statement referenced by birthers was clearly and demonstrably obiter dictum — a non-binding side comment.
3. The case gave no “definition” for “natural born citizen.”
5. The statement that it did is based on twisted and invalid logic.
6. Even if the Court had given such a definition, and even if it had said what the birthers claim it says, it would have been overruled by the later case of United States v Wong Kim Ark.
In addition to all of the above, at least one court has quite specifically ruled that Minor v Happersett does not say what Mr. Apuzzo and other birthers claim it says.
Alexander Porter Morse’s Writings on Citizenship (1881, 1904)Alexander Porter Morse was an American lawyer, who wrote an 1881 treatise on citizenship, and a 1904 law journal article on whether the children born overseas of US parents were eligible to the Presidency.
For the sake of brevity, I won’t attempt to analyze his writings here, except to say that Morse does seem to have been of the view that the US-born children of aliens were not, or at least shouldn’t be, eligible to become President. His most pertinent comment is:
If it was intended that anybody who was a citizen by birth should be eligible, it would only have been necessary to say, “no person, except a native-born citizen”; but the framers thought it wise, in view of the probable influx of European immigration, to provide that the president should at least be the child of citizens owing allegiance to the United States at the time of his birth. It may be observed in passing that the current phrase “native-born citizen” is well understood; but it is pleonasm and should be discarded; and the correct designation, “ native citizen” should be substituted…
The question is, what importance should we attach to Mr. Morse’s opinion? The birther tendency seems to be to claim that anyone who favors their position is a legal Albert Einstein, and anyone who does not, no matter how esteemed, doesn’t know what he’s talking about. In fact, one forum post in 2010 immediately hailed Morse as a “top international lawyer.”
He certainly seems to have been competent enough, as he was the government’s lawyer before the US Supreme Court in the infamous Plessy v Ferguson case (1896) which ruled that racial segregation was legal. Plessy v Ferguson remained US law until overturned in 1954 by the equally famous Brown v the Board of Education, which paved the way for our modern racially-integrated society.
But that seems to have been pretty much Morse’s only claim to fame. So what value should we attach to an opinion in a law journal article — which, by the way, appears to be the only law journal article that Morse ever wrote? As “SnakeDoctor” in the above-mentioned forum thread immediately notes:
Legally speaking, treatises are not controlling anywhere or for anyone. Law Journal articles are the legal equivalent of an op-ed. Anyone, particularly any “legal scholar” or professor (no matter whether they’re right or wrong) can write a treatise.
When writing about a legal subject — particularly Constitutional law — treatises and law journal articles are among the lesser sources to cite.
Nonetheless, Morse’s writings are a point in favor of the birthers’ claim.
Chester A. Arthur’s Presidency (1881-1885)In 2008, Leo Donofrio claimed to have uncovered “proof” that Arthur had concealed the fact that his father had not naturalized as a US citizen until after Arthur was born, in order to avoid being “outed” as having been ineligible for the Vice-Presidency and Presidency. This was claimed because some of the things Arthur had said about ages and dates turned out not to match records, and particularly, apparently, because Chester Arthur had had his papers destroyed.
As a result, Arthur has been claimed by some birthers to have been the “original usurper.”
Oddly enough, one of the papers that survived, and is present in the Library of Congress’ Chester Alan Arthur papers, is his father’s 1843 naturalization certificate. If Arthur wanted to conceal his father’s naturalization date, that does seem rather odd.
In fact, it turns out that Arthur’s political opponents did assert he was ineligible for the Presidency — but not for the reason Donofrio claims. A man named Arthur Hinman was apparently hired to dig up dirt on Arthur. He first alleged that Arthur had been born in Ireland. Why Ireland? It was well known and published in contemporary biographies of Arthur, that Arthur’s father had immigrated to the United States from Ireland.
When that was shown to be false, he alleged Arthur to have been born in Canada, instead of Vermont. Hinman wrote a book entitled, “How a British Subject became President of the United States.”
Hinman in fact goes into an entire biography of Arthur’s father, detailing his birth in Ireland, education in Belfast, and emigration first to Canada and then the United States. And yet, even though he goes to great length in an attempt to show that Arthur is ineligible, not once does he attempt to make the case that he is ineligible by reason of his father having been an Irishman. He doesn’t even ask the question.
The entire incident, then, is not evidence for the two-citizen-parent claim, but at least weak evidence against it. Given the lengths that Hinman went to in an attempt to prove Arthur’s ineligibility, it can be presumed that if people had understood the children of foreigners not to be natural born citizens, Hinman would have exploited that angle. He did not.
As an aside, if Chester Arthur was a “usurper,” he was certainly an odd one. During the Republican convention of 1880 — where Arthur had just been asked to run for Vice President — he stated to Sen. Roscoe Conkling of New York (who had just told him that Garfield was sure to lose) “The office of the Vice-President is a greater honor than I ever dreamed of attaining. A barren nomination would be a great honor.“
When Arthur made it to the carefree, do-nothing post of Vice-President, he would seem to have been as happy as a pig in mud.
And when President Garfield was shot, Arthur was horrified. According to historian Neil A. Hamilton:
Arthur never wanted more than the vice presidency and followed every report about the president’s health with an anxiety that caused him to lose weight and withdraw from his friends. When it looked like Garfield might live, Arthur said, “As the President gets better I get better, too.”
For the next two and a half months, while Garfield lingered near death, Arthur refused to take the reins as acting President.
Upon learning the news that President Garfield had finally died, Arthur hid in his townhome in New York, put his head in his hands, and — according to his servants — “sobbed uncontrollably.”
No one, including Chester A. Arthur, seems to have wanted a Chester A. Arthur Presidency. But once in the office, he made the best of it and attempted to do a creditable job. Quoting the Wikipedia article on Arthur:
As journalist Alexander McClure would later write, “No man ever entered the Presidency so profoundly and widely distrusted as Chester Alan Arthur, and no one ever retired… more generally respected, alike by political friend and foe.” Although his failing health and political temperament combined to make his administration less active than a modern presidency, he earned praise among contemporaries for his solid performance in office. The New York World summed up Arthur’s presidency at his death in 1886: “No duty was neglected in his administration, and no adventurous project alarmed the nation.”
Personally, I have come to quite like Chester A. Arthur.
Elk v Wilkins and Chester A. Arthur’s State of the Union Speech (1884)
I mention this only because a birther named Tracy Fair has claimed that an 1884 speech by President Arthur provided evidence that he knew he was ineligible. In that speech, Arthur said:
“An uniform rule of naturalization such as the Constitution contemplates should, among other things, clearly define the status of persons born within the United States subject to a foreign power (section 1992) and of minor children of fathers who have declared their intention to become citizens but have failed to perfect their naturalization. A just and uniform law in this respect would strengthen the hands of the Government in protecting its citizens abroad and would pave the way for the conclusion of treaties of naturalization with foreign countries.”
This claim, like so many other birther claims, has been shown to be false. Arthur’s speech clearly had reference to the recent Supreme Court case of Elk v Wilkins, which had ruled that an American Indian who had been born in a tribe, but then had separated himself from that tribe, was not a US citizen and could not participate as one without first going through a naturalization process.
Such a situation was less than satisfactory. But in spite of Arthur’s plea to do something about the matter, it would not be fixed during his Presidency, or his lifetime.
It should be mentioned in regard to the Elk case itself that John Elk was found not to be a United States citizen; and the reason for this ruling was not that he had been born of “non-citizen” (that is, immigrant) parents. The reason was that he had been born under and as part of a different sovereign government altogether — that of an Indian tribe.
As such, he was not born subject to US law or “subject to the jurisdiction of the United States.” Because of this, Native Americans born under their tribal governments were declared not to be US citizens — at least, not until they naturalized. This is an altogether different situation from the children of immigrants who came to our shores, participated in the mainstream of our society, and were subject to United States laws in exactly the same way that the native born members of our society were.
This state of affairs was eventually (mostly) fixed by Congress in 1924 by the Indian Citizenship Act, which opened the doors of citizenship much wider for Native Americans. By 1948, Native Americans possessed full voting rights as well.
US State Department Policy in the 1880s & 1890s
In the 1880s, the State Department changed its policy regarding children born in the United States of non-citizen parents, whose parents then removed the children to another country.
In 1880, Secretary of State William Evarts wrote:
“A person born in the United States has a right, though he has intermediately been carried abroad by his parents, to elect the United States as his nationality when he arrives at full age.”
Just five years later, however, Secretary of State Freylinghuysen was of a different mind.
Under Freylinghuysen and subsequent Secretaries of State, passports were denied to US-born persons whose parents had removed them from the country during their childhood. These State Department policies have been discussed more fully in a separate article.
Although the changed State Department policies did not affect those born on US soil who never left the country, they did serve as a later basis — as we will see in Part 6 — for Democratic activist Breckinridge Long to raise questions about the 1916 Presidential candidacy of Republican Charles Evans Hughes.
They can therefore be counted as being evidence that is at least somewhat favorable to the birther ideal of what a natural born citizen is.
US Supreme Court: US v Wong Kim Ark (1898)Now we come to the Big Kahuna of US citizenship cases.
Wong Kim Ark was a young man detained upon entering San Francisco from China, on the grounds that he was not a citizen of the United States. The Chinese Exclusion Acts prevented Chinese people from becoming US citizens.
But Wong was born in the United States. His case reached the Supreme Court in 1898, with the Court ruling in his favor.
Birthers such as Mario Apuzzo have claimed that the Supreme Court “only” found young Mr. Wong to be a “citizen” but specifically “stopped short of” finding him to be a natural born citizen.
The claim is simply false. The Supreme Court not only found Wong was a citizen — they also found — as an “irresistible” “conclusion” that he was “natural born.”
If someone is both “natural born,” and a “citizen,” then that makes that person a natural born citizen.
It really isn’t that hard, folks.
Here are a couple of quotes from the Court:
“The foregoing considerations and authorities [that is, the Court's entire discussion to date] irresistibly lead us to these conclusions: the Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes.
The Amendment, in clear words and in manifest intent, includes the children born, within the territory of the United States, of all other persons, of whatever race or color, domiciled within the United States.
Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States. His allegiance to the United States is direct and immediate, and, although but local and temporary, continuing only so long as he remains within our territory, is yet, in the words of Lord Coke in Calvin’s Case, 7 Rep. 6a, ‘strong enough to make a natural subject, for if he hath issue here, that issue is a natural-born subject;’ and his child, as said by Mr. Binney in his essay before quoted, “if born in the country, is as much a citizen as the natural-born child of a citizen, and by operation of the same principle.” It can hardly be denied that an alien is completely subject to the political jurisdiction of the country in which he resides…”
The Court also made clear that for the purposes of this discussion, “citizen” and “subject” were “precisely analagous.” So even though they, in quoting Lord Coke to add his authority to the discussion, use the term “natural born subject,” they found no essential difference between a “natural born subject” and a “natural born citizen.”
They also clearly state that the same rule in regard to children of alien parents had applied for centuries, in England, in the Colonies, and in the United States:
“It thus clearly appears that, by the law of England for the last three centuries, beginning before the settlement of this country and continuing to the present day, aliens, while residing in the dominions possessed by the Crown of England, were within the allegiance, the obedience, the faith or loyalty, the protection, the power, the jurisdiction of the English Sovereign, and therefore every child born in England of alien parents was a natural-born subject unless the child of an ambassador or other diplomatic agent of a foreign State or of an alien enemy in hostile occupation of the place where the child was born.
III. The same rule was in force in all the English Colonies upon this continent down to the time of the Declaration of Independence, and in the United States afterwards, and continued to prevail under the Constitution as originally established.”
As well, even the dissent in the case recognized the implication that Wong Kim Ark would one day be legally qualified to run for President:
“I submit that it is unreasonable to conclude that “natural-born citizen” applied to everybody born within the geographical tract known as the United States, irrespective of circumstances, and that the children of foreigners, happening to be born to them while passing through the country, whether of royal parentage or not, or whether of the Mongolian, Malay or other race, were eligible to the Presidency, while children of our citizens, born abroad, were not.”
A more detailed discussion of the case is available here. There is far more that can be said about the decision than I have attempted to go into either here or in the larger article. For example, the Court used the term “natural born” some three dozen times in their ruling. And that discussion was part of the core rationale for the case, so it clearly created a binding precedent.
That binding precedent is one of the most significant reasons why birthers lose every single Vattel-driven “natural born citizen” case that they bring into our courts.
For those who consult the larger article, I would like to commend to you the comments of BrianH, who has done some further analysis of the case.
We Are Now In the Home Stretch of Our Look at What “Natural Born Citizen” Has Meant Throughout History.
In Part Six, we will take a quick tour of the understanding of “natural born citizen” in the 20th century and today, as well as reference a few sources for quotes from those who have spoken about the topic.
Then we’ll bring everything together in our final Conclusion.