Minor v Happersett and “Natural Born Citizen”

Did Minor v Happersett Set a “Binding Precedent” as to the Meaning of “Natural Born Citizen?”

Neil Turner, a visitor to my blog who claims to have founded something called “Citizens for the Constitution,” says that in a recent debate with Mario Apuzzo, I wrote a “detailed, laborious, and amateur diatribe.”

Well… Neil is right about a couple of things, at least. The takedown of Apuzzo (which wasn’t just me — ehancock participated as well) was in fact a pretty detailed one.

And Mr. Apuzzo has put out such a great lot of claims that just doing the research needed to see what (if anything) of it might be true has definitely been time-consuming. So the whole thing could well be described as “laborious.”

But Neil obviously still believes in Mr. Apuzzo. His belief could not be more misplaced.

I had intended to retire from this whole issue more than a week ago, but apparently there’s some more that still needs to be said. For one thing, my own observations on Minor v Happersett have been a bit scattered. So let’s pull them together.

Why the Claim that Minor v Happersett Established a “Binding Precedent” for the “Definition” of “Natural Born Citizen” Is Completely False.

Leo Donofrio and Mario Apuzzo — and others following in their footsteps — have claimed that the Supreme Court, in the 1875 case of Minor v Happersett, created a “binding precedent” for the “definition” of “natural born citizen.”

The claim is just false. And it can easily be seen to be false.

Not just for ONE reason, either. We can see the falsehood of this claim in no less than FIVE different ways.

Reason #1: The Statement in Minor Couldn’t Possibly Have Established a “Binding Precedent,” Because It Was Clearly “Obiter Dictum.”

This first reason takes a little bit of understanding of how the law works, and a couple of legal terms. But by itself, this fact is fatal to the claim. It is simply legally impossible that the Supreme Court in Minor v Happersett “created a binding precedent as to the definition of ‘natural born citizen'” — and in this article I will explain why.

The law is very specific about what types of statements do and do not create “binding precedents.”

A court’s statement that has full authority will serve as legal precedent. This means that lower courts are legally “bound” to make similar decisions in all future similar cases.

And this is what one means by a “binding precedent.” “Binding” means that lower courts are legally required to follow it.

There are other judicial statements that don’t carry nearly as much authority, and that therefore do not create precedent.

So which are the authoritative statements that create precedent? These come from those statements that form part of the carefully-reasoned rationale for the actual decision in a case.

Where Precedents Are Created

Now there’s a Latin phrase that lawyers and judges use as the technical, legal term for this. It’s called ratio decidendi.

And this ratio decidendi — the rationale for the decision — is where legally binding precedents are created.

Here’s a bit more to help you understand what ratio decidendi, or rationale for the decision, is:

Ratio decidendi (Latin plural rationes decidendi) is a Latin phrase meaning “the reason” or “the rationale for the decision.” The ratio decidendi is “[t]he point in a case which determines the judgment” or “the principle which the case establishes.”

In other words, ratio decidendi is legal rule derived from, and consistent with, those parts of legal reasoning within a judgment on which the outcome of the case depends…

It is a legal phrase which refers to the legal, moral, political, and social principles used by a court to compose the rationale of a particular judgment. Unlike obiter dicta, the ratio decidendi is, as a general rule, binding on courts of lower and later jurisdiction—through the doctrine of stare decisis [standing by past decisions]. Certain courts are able to overrule decisions of a court of co-ordinate jurisdiction—however out of interests of judicial comity they generally try to follow co-ordinate rationes.

The process of determining the ratio decidendi is a correctly thought analysis of what the court actually decided—essentially, based on the legal points about which the parties in the case actually fought. All other statements about the law in the text of a court opinion—all pronouncements that do not form a part of the court’s rulings on the issues actually decided in that particular case (whether they are correct statements of law or not)—are obiter dicta, and are not rules for which that particular case stands. (Source: Wikipedia)

So the ratio decidendi has to do with the legal points on which the parties in the case “actually fought.” And it has to do with the principles and legal reasoning on which the particular case was decided.

If a comment wasn’t on a point about which the parties were fighting, and if it doesn’t lay down some principle on which the case was actually decided, then it’s not part of the rationale for the decision. And it generally does not establish any binding precedent.

Where Precedents Aren’t Created

All remarks that are outside of the core reasoning for a case are considered to be one or another form of “side comments.” Such side comments may not be as thoroughly researched as the core reasoning. They are not part of the holding in a case, and they do not carry the same authority.

For this reason, such statements simply do not — immediately, at least — create precedents.

There’s a Latin term for this as well: dictum. And it simply means “something said.” The plural of “dictum” is “dicta,” which is the more commonly used term.

And the most common kind of dicta is “obiter dicta,” which means “things said in passing.”

“An obiter dictum is a remark or observation made by a judge that, although included in the body of the court’s opinion, does not form a necessary part of the court’s decision. In a court opinion, obiter dicta include, but are not limited to, words “introduced by way of illustration, or analogy or argument.” Unlike the rationes decidendi, obiter dicta are not the subject of the judicial decision, even if they happen to be correct statements of law. Under the doctrine of stare decisis, statements constituting obiter dicta are therefore not binding, although in some jurisdictions, such as England and Wales, they can be strongly persuasive. (Source: Wikipedia)

Another test of whether a statement is dicta is whether the result of the specific case would be any different without the statement.

If the statement has no effect on the outcome of the case, then the statement is dicta.

The ratio decidendi is authoritative, and it serves as a binding precedent. Any other statements (or dicta) might or might not be persuasive. In fact, they may not be very persuasive at all. But there does exist an exception to this general rule.

Persuasive Dicta and Non-Persuasive Dicta

If a court gets really interested in a side issue, researches it thoroughly and at length, and presents a well-reasoned conclusion to such research, then dicta can be persuasive and serve as a clear guiding authority to future courts ruling on a similar matter. Such dicta are sometimes called judicial dicta, as opposed to mere obiter dicta.

To my understanding (maybe some actual lawyer can weigh in on this point), judicial dicta still do not make up a legally binding precedent — although a well-reasoned, thorough, authoritative analysis and argument can function in almost the same way.

And a future court making a decision based on such authoritative judicial dicta would then establish an actual precedent that is technically binding.

What Is the Statement in Minor? Ratio Decidendi, Judicial Dicta, or Obiter Dicta?

Last summer, birther Leo Donofrio wrote an article claiming that the 1875 Supreme Court case of Minor v Happersett established a “binding precedent” for the meaning of “natural born citizen.”

Mario Apuzzo and others have taken up this mantra — because it purports to “prove” that two citizen parents are required to make a natural-born citizen.

In fact, it’s pretty much the “most authoritative” basis for their claim.

And we’re about to pull the rug totally out from under their feet.

First I’d like to note that even if this claim were accurate — which it absolutely is not — their entire argument would still fail completely for a reason I’ll mention at the end of this five-part series.

But let’s go ahead and entertain the Minor v Happersett “binding precedent” claim.

First, we’ll take a look at the passage used to justify the Donofrio/Apuzzo claim, so we’re clear on exactly what is being claimed here.

Then, in order to know whether or not this claim even has any chance of being true, we will need to know what the Minor case was about — what the parties were and were not fighting over.

We will also need to know whether the statement that Donofrio and Apuzzo refer to was part of that case’s core reasoning — the ratio decidendi — or whether it was dicta. And if it was dicta, we will need to know what kind of dicta it was.

The Passage in Minor Used to Justify the Claim

Here is the statement referenced by Leo Donofrio, Mario Apuzzo, and other birthers — except I’m going to put it in a bit more context by including the preceding paragraph:

Additions might always be made to the citizenship of the United States in two ways: first, by birth, and second, by naturalization. This is apparent from the Constitution itself, for it provides that “no person except a natural-born citizen, or a citizen of the United States at the time of the adoption of the Constitution, shall be eligible to the office of President,” and that Congress shall have power “to establish a uniform rule of naturalization.” Thus new citizens may be born or they may be created by naturalization.

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. It is sufficient for everything we have now to consider that all children born of citizen parents within the jurisdiction are themselves citizens. The words “all children” are certainly as comprehensive, when used in this connection, as “all persons,” and if females are included in the last they must be in the first. That they are included in the last is not denied. In fact the whole argument of the plaintiffs proceeds upon that idea.

The first thing I would like to note is the statement from the preceding paragraph: “Thus new citizens may be born or they may be created by naturalization.”

The Court here admits only two kinds of citizens: Those who are born citizens, and those who are created by naturalization. And they don’t subdivide those who are born citizens into “natural born citizens” and “persons who are merely born citizens, but are not ‘natural born.'”

The fact is, no significant legal authority has ever, in the past history of the United States, claimed that such a division exists.

But let’s go on.

The part of the quote that birthers home in on is this:

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. It is sufficient for everything we have now to consider that all children born of citizen parents within the jurisdiction are themselves citizens.

Donofrio, Apuzzo and other “birthers” claim that this paragraph establishes a “binding precedent” that two citizen parents are required, as well as birth on US soil, to make a natural born citizen. Are they right? Let’s see.

How Does the Claim Relate to the Case?

The facts of the case are this: In October of 1872, Mrs. Virginia Minor applied in the State of Missouri to register to vote. She was turned away by the Registrar, one Reese Happersett. Afterward, she took Happersett to court, seeking the right to vote.

Here is the question as it was presented before the Court:

“The question is presented in this case, whether, since the adoption of the fourteenth amendment, a woman, who is a citizen of the United States and of the State of Missouri, is a voter in that State, notwithstanding the provision of the constitution and laws of the State, which confine the right of suffrage to men alone.”

There are a couple of things to note here.

First, all parties in the case had already agreed and conceded that Virginia Minor was a native-born citizen of the United States.

There was therefore no need for the Court to actually make a determination as to whether she was a citizen or not — because everybody was already in agreement on that point. So the discussion regarding her citizenship was not necessary to the ruling.

Secondly, the Court stated that there was no doubt that Virginia Minor was a natural born citizen.

Having said that — her status as a natural born citizen — as opposed to being a naturalized citizen — was not at all a factor in the case. So her status as a natural born citizen was not necessary to the ruling.

The reason this is true is because voting rights of natural born citizens are exactly and precisely the same as the voting rights of naturalized citizens — and nobody ever contended differently.

So Virginia Minor could just as well have been found to be not a “natural born” citizen, but a naturalized one — and it wouldn’t have made the slightest difference. (Remember we said that a test of whether something is dicta is whether the result would be any different without it?)

Third, Virginia Minor was not even in the class of people that Donofrio and Apuzzo claim the Court issued a “binding precedent” regarding.

They both claim that in this case the Supreme Court issued a “binding precedent” on the status of people born on US soil to parents who were not US citizens at the time of their birth.

But any such statement — as to whether such people are “natural born citizens,” “born citizens,” “naturalized citizens,” “not US citizens at all,” or “little green men from Mars,” has no direct bearing on the outcome of this case whatsoever, as Virginia Minor isn’t even a member of that group of people!

I repeat: The Supreme Court could have stated that children born on US soil of non-citizen parents were legally the same as little green men from Mars, and it would not have made the slightest difference whatsoever as to the outcome of this case.

For all three of these reasons, any statement by the Court on the citizenship status of such persons is CLEARLY dicta.

There’s no contest on this point. The citizenship status of children born on US soil to non-citizen parents literally had nothing to do with the decision in this case. It was completely a side issue. So anything they may have said on the matter is pure and undeniable dicta.

It might still be the more authoritative, “judicial” dicta, however. Let’s test it and see.

What Kind of Dicta Was it? Judicial Dicta, or Obiter Dicta?

Remember that we stated earlier that persuasive (or “judicial”) dicta is researched thoroughly and at length, and presents a well-reasoned conclusion.

In this instance, we do not have such thorough research. We have, in fact, a grand total of only this little blurb:

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. It is sufficient for everything we have now to consider that all children born of citizen parents within the jurisdiction are themselves citizens.

And in fact, pretty much ALL of the Court’s comment on children born on US soil of non-citizen parents is contained in just two sentences:

“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.”

That’s it. For the entire case.

Now two sentences does not in any way constitute research or argument. Two sentences does not constitute any substantial discussion at all.

Compare this with the 50 pages or so of discussion that the Court did on the issue of whether Wong Kim Ark was a citizen — and the massive amount of research that went into those 50-plus pages. I haven’t attempted to count the references precisely, but they appear to number well over 200.

Compare it, in fact, with 6 pages that the Court dedicated to the discussion of whether Virginia Minor was a citizen of the United States — in a case in which all parties had already agreed that she was!

It is therefore abundantly, crystal clear:

This statement made in Minor v Happersett is most certainly NOT “binding precedent.”

It clearly forms no part of the rationale for the decision in the case.

And it is most certainly NOT the authoritative kind of dicta, either.

It is merely obiter dictum — a remark made in passing.

And obiter dictum is completely incapable of establishing a binding precedent.

Apuzzo’s Stark Hypocrisy on the Matter

Now Mario Apuzzo’s absolute hypocrisy in regard to the statement in Minor is very starkly illustrated in the following claim that Mr. Apuzzo made in the recent debate to ehancock regarding a different case — US v Wong Kim Ark:

“First, I note that you are not able to point to the actual holding of the case for support of your position. Rather, you resort to the Court’s discussion of the English common law to do so. Your effort is not enough to support your argument. If you are going to tell us that the Court held a certain way, then you have to provide for us the actual holding of the case that supports your position. You simply cannot do that, which shows that your position is only wishful thinking.“

My reply to Apuzzo was as follows:

“This statement is absolutely outrageous and utterly hypocritical on your part — YOU who CLAIM that Minor v Happersett supposedly set a “BINDING PRECEDENT” as to a supposed “definition” of natural born citizen.

The phrase from Minor that you proof-text for your utterly bogus claim is not only NOWHERE REMOTELY NEAR to being the “holding” that you now demand for Wong Kim Ark — in fact, it’s not even directly relevant to the decision in Minor v Happersett — as it was freely acknowledged in advance by all parties that Virginia Minor was, in fact, a citizen of the United States.

Your hypocrisy in making this demand of US v Wong Kim Ark, when you abuse Minor v Happersett by taking dicta from a discussion that was clearly peripheral — since it was conceded by all parties that Virginia Minor was a US citizen — and then attempting to elevate that dicta to the status of a “binding precedent,” is just breathtakingly brazen.

By your own words you have been condemned.”

The Evidence So Far Is Already Conclusive — But There’s Plenty More.

Our analysis so far is enough to authoritatively conclude that the claim by both Leo Donofrio and Mario Apuzzo — that Minor v Happersett created a “binding precedent” that it takes two citizen parents to make a natural born citizen — is absolutely false.

And since it could be presumed that any even halfway competent lawyer ought to clearly understand the difference between ratio decidendi and obiter dictum, I believe there is already enough evidence here to reasonably conclude that Donofrio and Apuzzo haven’t just made a mistake. In fact, Apuzzo himself actually demonstrates that he knows the difference between ratio decidendi and obiter dictum in his comment to ehancock.

So I believe there’s enough evidence for a reasonable person to conclude that Misters Donofrio and Apuzzo — who most certainly ought to know the difference between the two types of statements — are in fact lying; particularly when you start combining this with the track record of other statements made by both that are also known to be untrue.

It gets worse than this. Much worse. Because this is not, by a long shot, the only good evidence we have that their claim regarding Minor v Happersett is false.

It’s only the first of FIVE different reasons by which we can clearly identify the claim to be a false one.

We’re going to prop the smashed claim back up, only to destroy it from a different direction in Part Two of our analysis:

Minor v Happersett Established No “Definition” of “Natural Born Citizen.”