This is Part Three in a series of articles on the birther lie, popularized by Leo Donofrio, Mario Apuzzo, and John Charlton (of the news blog ‘The Post & Email’), that Minor v Happersett established that it takes birth on US soil plus two US citizens at the time of birth to make a natural born citizen — and therefore, to make a person eligible to run for President.
The passage quoted (and twisted) is as follows:
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.
Now… where in there does it say that two citizen parents are required in order to make a natural born citizen? It doesn’t.
It says that “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.”
Yes, it identifies those who are born in a country of two citizen parents as natural born citizens.
But nowhere does the Court say that those who are born in a country, but don’t have two citizen parents, are not natural born citizens.
In fact, it says:
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.
Again, Mario Apuzzo tries to hang his hat on the fact that that first sentence says “include as citizens,” rather than “include as natural born citizens.”
The Smell Test
The first test we might apply to the English in this passage is the “smell” test.
Take the passage, just as written, and put it onto a piece of paper. Make 50 copies. Take your copies to several honors English classes at the most prestigious university you can get to. Pick 50 of the best students. Make sure they are politically uninterested, or at least totally unfamiliar with the Donofrio and Apuzzo claims and have no sense at all that the passage is supposed to support or oppose a particular politician. Have all 50 students read the passage and write a brief essay explaining what it means.
I would be willing to bet good money that out of 50 disinterested, uninformed, uncoached but otherwise highly intelligent English language scholars who read the passage, you will not find one who will spontaneously write an essay claiming that the point of the passage is that the Supreme Court was saying that you had to have two citizen parents PLUS be born on US soil in order to be a natural born citizen.
And why not? The answer is stunningly simple. It’s because that’s not what the passage says.
So Why Does It Say “Include as Citizens,” and Not “Include as Natural-Born Citizens?”
Donofrio and Apuzzo, however, twist the meaning of the passage by insisting that when the Court used the term “citizens” in possible regard to “children born within the jurisdiction without reference to the citizenship fo their parents,” they thereby specifically exclude the possibility that such children are natural-born citizens.
Nonsense. The use of the term “citizens” refers back to the main idea and the main construction in the previous sentence. It refers back to the central point of what they were discussing — citizenship — not “natural born” citizenship.
Because whether or not citizenship was “natural born” was completely irrelevant to the case the Court was addressing. Virginia Minor could just as well have been a naturalized citizen from Lithuania, and her right to vote — or not — would still have been precisely the same.
Let’s temporarily eliminate the parenthetical comment, retain the main points, and see what it looks like:
“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… Some authorities go further and include as citizens [exact same status, exact same description, exact same word as the first bunch] 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. “
Temporarily dropping out the parenthetical comment that refers specifically to the first category of people makes it plain what their entire POINT was all about:
It was not, in the Minor case, about who was or was not NATURAL BORN (for the purposes of Presidential eligibility) — the entire discussion was about who was and was not A CITIZEN. The two statements are symmetric, and they are intimately related: “A is most definitely a CITIZEN. As to whether B is a CITIZEN or not, there have been some doubts. It is not necessary to resolve these, since Virginia Minor is A. Therefore, Virginia Minor is a CITIZEN.”
And the reason for all of this is that Minor v. Happersett was never in any way about Presidential eligibility. It was about whether or not Virginia Minor had the right to vote.
Her status as a CITIZEN — again, whether natural-born or naturalized, that part didn’t matter — was relevant to the question. The question of exactly who was, and who was not, “NATURAL BORN,” never was relevant to the question before the Court at that time.
Now let’s put our parenthetical statement back in, and look at it that way.
“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. “
Note again: the Court made no distinction between natives and natural-born citizens. And they never stated that children born of non-citizen parents were not natural born citizens.
A failure to state that children born of non-citizen parents were natural born citizens simply is not a statement that children born of non-citizen parents aren’t natural born citizens.
Not addressing something does not equal ruling against it. Yet Donofrio and Apuzzo claim it does.
And the fact that the Court in Minor did not intend to create a binding “definition” of “natural born citizen” — or even a determination as to the citizenship status of children born here of resident non-citizens — is manifest in their statement, “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 note that they didn’t say “all children born of citizen parents in the USA are themselves natural-born citizens.”
They said, “are themselves citizens.”
Why? Because the entire point of their discussion was never natural-born citizenship. It was citizenship, period.
The plain English of the statement in Minor v Happersett makes clear that the Court never stated two citizen parents were required to make a natural born citizen.
We’ve seen not one, but three reasons why the claim by Apuzzo and Donofrio is a false one.
Logic also affirms the understanding that we get from reading the plain English. So, let’s take a look at the logic of the Court’s statement in Part 4.