Part 1: JUSTICE GRAY MISQUOTED McCREERY V. SOMERVILLE AND THE RELEVANT STATUTE.
Grab a cup of java, put your thinking caps on, kick back and relax. We are going to be here for a while. Focus. Below, you will be privy to a true and proper revision of United States Supreme Court history.
One of the foundational building blocks for Justice Gray’s opinion in U.S. v. Wong Kim Ark is the case, McCreery v. Somerville, 22 US 354 (1824), to which Gray made a fatally flawed assumption based upon his failure to acknowledge a judicially recognized misquote. Then, Justice Gray compounded his initial error by creating a separately deceptive quotation.
These errors completely sully his analysis of McCreery. Gray failed to inform his opinion in Wong Kim Ark with the fact that the U.S Supreme Court had questioned that opinion in 1881, just prior to Gray having joined the Court.
In Sullivan v.Burnett, 105 U.S. 334 (1881), the Court stated:
“This view is controverted by the plaintiffs on the authority of McCreery’s Lessee v. Somerville, 9 Wheat. 354, where this Court had occasion to determine the meaning of the statute of 11 & 12 William III. c. 6,…We remark in reference to that case that the English statute is not accurately quoted in the opinion of the Court, as an examination of 10 British Stat. at Large 319 (Pickering’s Ed.) will show. but without deciding that the words omitted ought to have produced a judgment different from that rendered, we are of opinion that the present case is not governed by McCreery’s Lessee v. Somerville.” Sullivan v. Burnett, 105 U.S. 334, 340-341. (Emphasis added.)
The misquote would not have changed the outcome in McCreery since the issue of the plaintiff’s citizenship status made no difference to the case, where the plaintiff could not inherit from a living ancestor. In Sullivan v. Burnett, the Missouri statute did allow for inheritance through a living ancestor, so McCreery was not controlling. However, the misquote completely nullifies Justice Gray’s assumption in Wong Kim Ark. And considering that McCreery is the only Supreme Court holding prior to Wong Kim Ark which appeared to assume that native-born persons of alien parents were citizens, the embarrassment of the failed assumption further weakens the questionable reputation of Justice Gray’s controversial opinion.
I came upon the Sullivan case by way of a footnote found at the Princeton Firestone Library, which has the dusty old Wheaton Supreme Court Reporters. Wheaton added a footnote to McCreery v. Somerville regarding the misquote.
I have learned from experience that every point of authority mentioned by Justice Gray in his 55 page opinion must be examined under a microscope, and that the resulting picture is more often than not quite different than he alleges. These anomalies include straight forward mistakes, unfounded assumptions, misquotes and subtle acts of misdirection. Nothing can be taken at face value. Considering that Gray was indirectly determining the citizenship status of President Chester Arthur (who appointed him), the appearance of impartiality has been severely compromised. In the days ahead, I will present all of the problems now associated with Gray’s opinion in great detail. Today, we begin with McCreery v. Somerville.
Justice Gray assumed that the Supreme Court in McCreery made it’s own assumption that the plaintiff in McReery was a “native-born citizen” of the United States:
“In McCreery v. Somerville (1824) 9 Wheat. 354, which concerned the title to land in the state of Maryland, it was assumed that children born in that state of an alien who was still living, and who had not been naturalized, were ‘native-born citizens of the United States’; and without such assumption the case would not have presented the question decided by the court, which, as stated by Mr. Justice Story in delivering the opinion, was ‘whether the statute applies to the case of a living alien ancestor, so as to create a title by heirship, where none would exist by the common law, if the ancestor were a natural-born subject.’ Id. 356.” U.S. v. Wong Kim Ark, 169 U.S. 649, 661.
Before we get to the misquote by Justice Story in McCreery (which was reiterated by Gray), we have in the quote above a very misleading quotation that appears intentional. Justice Gray cites to pg. 356 of McCreery at the end of the passage wherein he placed quotes around ‘native-born citizens of the United States’. But no such quote appears on pg. 356. In fact, the Court’s opinion in McCreery nowhere states that the plaintiff was a U.S. citizen, native-born or otherwise. The headnote and facts agreed upon by the parties call the plaintiff a citizen, but these are not part of the Court’s opinion, and are not law.
Since the plaintiff’s ancestor was alive, the Court held that the plaintiff could not inherit from him. And this would have been the holding regardless of the plaintiff’s citizenship status. Having determined that the plaintiff couldn’t inherit from that particular ancestor, the Court never reached the direct issue of her citizenship. And a thorough review of the facts and the British statute construed in McCreery reveals that the Court would not have been required to determine she was a native-born citizen of the U.S. in order for her to inherit.
Gray’s assumption is culled from this passage in McCreery:
“It is perfectly clear that at common law her title is invalid, for no person can claim lands by descent through an alien, since he has no inheritable blood. But the statute of 11 and 12 Wm. III, ch. 6, is admitted to be in force in Maryland, and that statute, beyond all controversy, removes the disability of claiming title by descent, through an alien ancestor. The only point, therefore, is whether the statute applies to the case of a living alien ancestor, so as to create a title by heirship where none would exist by the common law, if the ancestor were a natural born subject.” McCreery v. Somverville, 22 U.S. 354, 355-356. (Emphasis added.)
The Court’s use of “the only point” is the basis for Gray’s assumption. The title to the statute in question is:
“An act to enable his Majesty’s natural-born subjects to inherit the estate of their ancestors, either lineal or collateral, notwithstanding their father or mother were aliens.”
With regard to the title, Justice Story also stated, “The title is not unimportant, and manifests an intention merely to remove the disability of alienage.” Justice Gray’s analysis assumed the title to the act meant that it pertained only to “natural-born subjects”. And if that were true, then Gray’s assumption would be fair. This is because “the only point” stated in McCreery was whether the plaintiff could inherit despite the ancestor being alive. If the plaintiff’s citizenship were in question, then there would have been more than one point to decide.
Therefore, if the statute applied only to natural-born subjects, the Court’s opinion in McCreery could be said to have recognized the plaintiff as a native-born citizen of the U.S., despite her being born here to an alien father. But, in true actuality, the statute specifically refers to natural-born subjects as well as “subjects within any of the King’s realms or dominions”. In the United Kingdom, “subjects within any of the King’s realms or dominions” pertains to resident aliens. These are persons permanently domiciled within the UK who are neither natural-born nor naturalized.
A “natural-born subject” is a subject wherever he goes in the world, but a resident alien is only a subject of the United Kingdom when he is actually in the King’s realms. Therefore, Gray’s assumption is busted since the plaintiff in McCreery was within the statute regardless of whether she was considered by the Court to be a U.S. citizen or a resident alien. Since the Court’s opinion doesn’t mention the citizenship status of the plaintiff, it cannot be assumed that the Court assumed she was a U.S. citizen rather than a resident alien. As such, Justice Story’s reference to “the only point”, while being correct, does not establish that the Court assumed the plaintiff to be a native-born citizen. Regardless, if the Court in McCreery made the assumption attributed to it by Justice Gray, that assumption was unfounded under the statute.
Justice Gray also stated that “without such assumption the case would not have presented the question decided by the court”. Not true. The statute, as written, includes resident alien subjects as well as natural-born subjects. Since Justice Story’s opinion in McCreery exhibits judicial restraint by wisely avoiding the citizenship issue, Gray’s assumption is unfounded generally. But considering Story’s judicially recognized misquote, the assumption is specifically, factually, and objectively unfounded as well. Justice Gray was obligated to point this misquote out, but instead, he danced around it.
Here is an image of the actual statute (link to book containing statute, pgs. 228-229, pgs. 473-474 of PDF file):
Here is the passage from McCreery wherein Justice Story misquotes the statute:
“…that all and every person or persons, being the King’s natural born subject or subjects, within any of the king’s realms or dominions, should and might, thereafter, inherit and be inheritable, as heir or heirs, to any honours, etc., lands, etc., and make their pedigrees and titles, by descent, from any of their ancestors, lineal or collateral, although the father and mother, or father or mother, or other ancestor, of such person or persons, by, from, through, or under whom he, she, or they should or might make or derive their title or pedigree, were, or was, or should be, born out of the King’s allegiance, and out of his majesty’s realms and dominions, as freely, fully, and effectually, to all intents and purposes, as if such father and mother, or father or mother, or other ancestor or ancestors, by, from, through, or under whom he, she, or they should or might make or derive their title or pedigree, had been naturalized, or natural born subjects.’ “
A word for word comparison illustrates numerous errors, but we are concerned with only two. First, please compare the initial line of Justice Story’s quote, and the erroneous reiteration by Justice Gray, to the actual statute:
Justice Story: all and every person or persons, being the King’s natural born subject or subjects, within any of the king’s realms or dominions
Justice Gray: all and every person or persons, being the king’s natural-born subject or subjects, within any of the king’s realms or dominions
The Statute: all and every person or persons, being the King’s natural-born subject or subjects within any of the King’s realms or dominions (emphasis added)
Both Story and Gray insert a comma after “subjects” which grammatically changes the statute. The comma is not in the actual statute. With the comma inserted, it might be argued that the statute applies to a natural-born subject or subjects – singular or plural. If that were true, then the statute would only apply to natural-born subjects and not to resident alien subjects.
But even with the comma inserted, the statute still refers to “subjects, within any of the King’s realms or dominions”, and if it were meant to apply only to natural-born subjects, their whereabouts would not be relevant since natural-born subjects maintain their status anywhere in the world. Expatriation wasn’t even recognized in the U.K. until 1870. The statute makes no sense on this point unless the location of the person/subject matters, and it could only matter to a person/subject who was considered to be the King’s subject only when within the King’s dominions. And the only class of British subjects to which location is relevant are resident aliens. So this interpretation not only makes grammatical sense, it makes legal sense.
Furthermore, the statute is much broader than the title. The title mentions only the parents having been aliens, but the statute cures any defect of inheritable blood from all ancestors, not just the mother and father. The title is a broad statement, whereas the statute is very specific. Also, note that the statute uses similar terminology again in the second half, “natural-born subject or subjects within the King’s dominions“, where no comma is inserted either. Justice Story stopped his quote before reaching this phrase, and were he quoting from the actual Statute 11 & 12 William III, he should have included – “. . .” – to signify that the quote was cut there, and that it goes on.
The cause of Justice Story’s misquote was not discussed in Sullivan v. Burnett, nor, as far as I can tell, has the source of the error been previously revealed. As it turns out, I have discovered the root cause of the misquote, but I don’t think I was the first to discover it, only the first to reveal it. More on that below. But first, please note that Justice Gray’s quotation of the Statute 11 & 12 William III closes with, “natural-born subject or subjects within the king’s dominions.’ Therefore Gray’s quotation of the statute continued where Justice Story’s did not, in that Gray cites the second useage, including “subjects within the King’s dominions”, and he does so without the comma, which is correct.
This second useage of the phrase refers to the ancestor, whereas the initial useage pertains to the person trying to inherit. The plaintiff in McCreery was trying to inherit so the statute refers to her in the first part, and to her ancestor in the second. Therefore, the comma inserted by Story and Gray in the first part, creates a grammatical difference, which it now appears, Justice Gray was aware of and actually manipulated to aid his assumption. This reeks of foul play. And here’s why.
Gray’s awareness that the second part contained no comma indicates that he was using a source other than Justice Story’s opinion which makes no reference to the second useage of “subjects within the King’s dominions”. As stated above, Story’s quote stops just short of getting there. This is because… wait for it — Justice Story was actually quoting from the wrong statute. In McCreery, after his quote and analysis of 11 & 12 William III, he analyzes Statute 25 George Ch. II, enacted in 1753 as an explanatory statute pertaining to 11 & 12 William III, to which Justice Story notes:
“The statute of Geo. II., therefore, after reciting the act of William, declares…“
McCreery v. Somerville, 22 U.S. 354, 359.
Well, this happens to be wrong. As you shall see below, the Statute 25 George II does not recite the Statute 11 & 12 William III, word for word, rather, it revises slightly what was already there, as well as adding new provisions to it. That it was revised, rather than recited, becomes obvious when you consider the title of 25 George II:
“An Act to Obviate Doubts that may arise upon an Act made and passed in the 11th and 12th Years of the Reign of His Late Majesty King William the Third…“
This Act then appears to quote 11 & 12 William III directly, and in doing so it provides the exact quote used by Justice Story, who, understandably, relied upon the 25 George II revision of the Statute 11 & 12 William III, rather than the true original version. Justice Story must not have checked the original statute. And I empathize with him, since the 25 George II appears, from its introductory language, to indicate that what follow in quotation marks is a recital of the original 11 & 12 William III. Unfortunately for Justice Story, that is not the case.
The quotation marks not only include the revised William III language, but the quotation marks include much more new language that was not included in the original William III. You may view the statute 25 George II at the same link provided above for William III (at pgs. 229-230, PDF 474-475) where they are published back to back. Here’s a snapshot of the George II:
As you can see, it most certainly is a revision. Note the part in quotation marks which begins, “And whereas many doubts and inconveniences may arise…” None of that was in the original William III, so there should be no quotation marks around it. The same can be said for the more subtle revisions in the actual text of the original William III. For example, the original states, “shall and may hereafter lawfully inherit“, while the revised 25 George II edition states, “should and might thereafter lawfully inherit“. Both Story and Gray misquoted the 25 George II edition as if it was the William III as to this phrase; Story gives, “should and might, thereafter”; Gray gives “might and should thereafter”.
Now, here’s where it gets truly interesting: Justice Gray’s selective quotations, incorrectly cite the first part of the William III, exactly as Justice Story did, but then later Gray cites the true William III, as Story did not. This is evidence that Justice Gray was aware of Justice Story’s error, as well as the source of Justice Story’s error. Yet, Justice Gray fails to mention either the error or the source, while purposely availing himself of the error in the Wong Kim Ark opinion. Not cool.
Furthermore, the revised William III, as stated in 25 George II, strips the closing comment, “subjects within the King’s dominions”, from the end of the Act. Therefore, Story was quoting entirely from the 25 George II, and his quotation, as I stated above, does not contain “. . .”, to indicate that the Act continues, because in the revised version of the William III, it does not continue. What does comes after, despite being in quotation marks, is obviously not part of the William III. That the new language is in quotation marks should have been a red flag for Justice Story.
The second reference to “subjects within the King’s dominions” was deleted because it’s redundant and confusing. The William III statute was designed to treat each ancestor as if they were a natural-born subject. As such, the language from the second part of the original William III, which Justice Story did not quote, but which Justice Gray did, was superfluous. If the ancestor is placed on the same footing as a natural-born subject, there’s no need to include “subjects within the King’s dominions” as well. It adds nothing and was therefore properly deleted as to the ancestor. This is why the revised William III, as stated in 25 George II, ends with “natural-born subjects” (plural), whereas in the original William III, it was “natural-born subject” (singular), continued by the deleted text.
That this second reference to “subjects within the King’s dominions” was deleted from the William III in the 25 George II revision, while the initial reference to “subjects, within any of the King’s realms or dominions” was left in (albeit, with the addition of the comma), indicates that such language has a separate purpose, whereas the second reference was superfluous, and therefore deleted.
Furthermore, since the second reference changes “natural-born subject” to “natural-born subjects”, the first reference cannot be explained away, despite the comma, as having the purpose of making plural “natural-born subject”, because had that been intended, it would have been carried out in the same manner as the second reference, which was accomplished by pluralizing the original reference to “natural-born subject”, by simply changing it to “natural-born subjects”. Therefore, the first reference in the revised William III must pertain to exactly what the original pertained to, “subjects within the King’s realms or dominions”, aka, resident alien subjects.
Additionally, Justice Gray adds further insult to injury, by stating:
“As that statute included persons born ‘within any of the king’s realms or dominions,’ if of course extended to the colonies, and, not having been repealed in Maryland, was in force there.” U.S. v. Wong Kim Ark, 169 U.S. 649, 661.
This masks a subtle ruse. Gray begins with – “As that statute included persons born ‘within any of the king’s realms or dominions,’ ” – but the statute actually states, “subjects within any of the King’s realms or dominions“. It does not state, subjects born within any of the King’s realms or dominions. Huge difference.
Justice Gray has been caught usurping the statute to suit his own needs, which are not the needs of truth, justice and the American way. I call a foul on Justice Gray.
Justice Story made an honest error based upon a confusing statutory revision which used quotation marks poorly. No foul play there. But Justice Gray has been caught here with his hand in the cookie jar. He misquoted the first part of the William III just as Story did, but quoted the second part perfectly, which Story did not. This is clear evidence that Gray knew the source of Story’s error, but chose to keep the rest of the nation in the dark about it. Justice Gray could not have properly quoted the original William III without having knowledge of it.
The Gray/Arthur nexus creates a dark moment for the U.S. Supreme Court. Never has a single Justice had so much at personal stake in a decision of the Court. Considering that Gray wrote the majority opinion, the Supreme Court truly needs to react. This issue is not going away and will only serve to create a spiraling mistrust of the institution of the Supreme Court if left to fester.
And I have more to come on virtually every source cited by Gray. If this were the only anomaly, he might deserve a pass, but there’s more of this behavior to be exposed in the days ahead. Diatribe over. Let’s get back to the law.
When a resident alien subject leaves the UK to change his domicile, he is no longer considered to be a British subject. The issue was discussed by Sir John Salmond in his report, “Citizenship and Allegiance“, 18 Law Quarterly Review, pp. 49, 50 (1902):
Then, on pg. 59, Salmond notes, after a discussion concerning the common law rule against aliens being able to inherit, that, while non-resident aliens may not avail themselves of statutes, resident aliens, on the other hand, may claim protection of law under statutes:
Therefore, “subjects within any of the King’s realms or dominions”, aka, resident alien subjects, might inherit under the very statute construed in McCreery.
As such, Justice Gray’s assumption – that the Court in McCreery proceeded upon its own assumption that the plaintiff there was a native-born citizen of the U.S. – is unsound. And McCreery v. Somerville provides no support at all for the holding in Wong Kim Ark, which is tainted by Gray’s various misquotes, some of which have been confirmed by the U.S. Supreme Court in Sullivan v. Burnett.
There is no excuse for Justice Gray failing to mention the warning by the Supreme Court in Sullivan v. Burnett. It was an 1881 decision. Gray joined the Court in December, 1881.
Justice Story’s error made no difference to the outcome of McCreery v. Somerville, but Justice Gray’s errors makes all the difference to his reliance upon McCreery in Wong Kim Ark.
Part 2: JACK MASKELL’S CRS MEMO CONTAINS BLATANTLY FRAUDULENT ANALYSIS OF McCREERY v. SOMERVILLE.
Jack Maskell’s latest Congressional “research” memo on POTUS eligibility failed to unearth the McCreery misquote as repeated in Wong Kim Ark. Unfortunately, the memo takes inspiration from Justice Gray’s cavalier quotation operation by going one step further in concocting authorities out of thin air which do not exist anywhere other than the mind of its author, who has committed the cardinal sin of legal memo writing by advocating rather than educating.
The first thing one learns at law school in Legal Research and Writing 101 are the rules pertaining to the composition of a memorandum of law. This is a document usually requested by a partner from an associate. A common situation occurs when the partner is heading to court for an argument, and with limited time available he assigns the task of research to a subordinate. The associate is required to write an objective memo advising the partner of the best possible arguments for both sides.
If the associate then offers to the partner a one-sided memo which slants the law in favor of their client, and the partner is thereafter surprised in court by opposing counsel with authorities and arguendo which were not included in the memo, said partner will be offering said associate free limo service to the unemployment line.
Maskell’s “memo” is a complete failure as a legal memo. It presents only that which advocates for eligibility whilst steadfastly avoiding that which does not. And the evidence presented is intentionally misleading.
In a previous report, I highlighted Maskell’s incredibly deceptive practice of Frankensteining quotes out of thin air then attributing them to the US Supreme Court even though the Court said no such thing.
The U.S. Supreme Court has never issued either of the following statements, permutations thereof:
The petitioner, born of alien parents in the United States, is a natural-born citizen of the United States.
The petitioner, born in the US of one alien parent and one citizen parent, is a natural-born citizen of the United States.
Since the US Supreme Court has never issued an opinion stating the above, Jack Maskell has attempted to speak for the Court as to this issue. For example, on pg. 13 of the CRS memo, at Footnote 61, Maskell states:
“61 169 U.S. at 661-662, discussing McCreery v. Somerville, 9 Wheat. 354 (1824), where, the court noted, that such rule of natural born citizenship by birth within the country ‘of course extended to the Colonies, and, not having been repealed in Maryland, was in force there.’ “
Based upon this footnote, it would appear that both Justice Gray’s discussion of McCreery v. Somerville in Wong Kim Ark, as well as the Supreme Court’s actual opinion in McCreery v. Somerville, contain direct references to the phrase “natural born citizenship”. But appearances are certainly deceptive. Neither phrase, “natural born citizenship”, nor “natural born citizen”, appear anywhere in the opinion from McCreery v. Somerville.
And “native-born citizen” was the exact term used by Justice Gray, not natural-born. This is even more troubling now that we know the opinion of the Court in McCreery never even states that the plaintiff was a native-born citizen, never mind natural-born. Footnote 61 is a bold fabrication of a Supreme Court holding offered to the public as if it were real. The entire 53 page CRS memo is stuffed with such fabrications.
Part 3: MINOR v. HAPPERSETT PROVIDES THE EULOGY.
If a blockbuster quote such as is alleged in Maskell’s Footnote 61 really did exist from the US Supreme Court, there would be no need for a 53 page “memo” on the topic. Such a quote would slam dunk the controversy. But no U.S. Supreme Court opinion has ever held that a person born in the country of alien parentage is eligible to be President. That has never happened.
In fact, the only time the US Supreme Court ever did define the class of persons who were POTUS eligible under Article 2 Section 1 was in Minor v. Happersett, 88 U.S. 162 (1874), wherein it was held:
“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.” Minor v. Happersett, 88 U.S. 162, 168.
There’s a quote for you. It really exists. And it tells you exactly who are natural-born citizens; those born in the country of parents who are citizens. The words are plain-spoken and self-evident. There are two classes of persons discussed in the above quotation. Those born in the country of citizen parents were labeled by the Court as “natives or natural-born citizens”, but these were also further identified as being “distinguished from aliens or foreigners”. The distinction is crucial.
On one side are those who have no citizenship other than that of the United States… as distinguished from those on the polar opposite side who have absolutely no claim to citizenship in the United States; “These were natives, or natural-born citizens, as distinguished from aliens or foreigners.” Those who fall in between these two extremes make up a third class of persons whose citizenship status, the Court noted, was subject to doubt:
“Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of the parents. As to this class there have been doubts, but never as to the first.” Id. (Emphasis added.)
Had this third class been contemplated as having any claim to being natural-born citizens, the distinction employed by the court would not make sense. The distinction was employed to more specifically identify the class of persons who were natural-born citizens under Article 2, Section 1, Clause 5. The two classes discussed are in direct polar opposition to each other. Had this distinction not been employed, it might be argued that those born in the country of one citizen parent were also natural-born. But the distinction leads to the necessary conclusion that the Court in Minor was identifying a two-citizen parent rule.
For example, a person born in the US to a British father and U.S. citizen mother would, at the time of the adoption of the Constitution (and at the time Minor v. Happersett was decided), be considered as a natural-born subject of the U.K. Whether this child would be, at his birth, a citizen under the 14th amendment, was left undecided by the Court in Minor. But let’s assume that the child was a U.S. citizen. Where does that child fit into the distinction offered by the Court in Minor? The child is not on either polar extreme, since the child was not exclusively a US citizen at birth, nor was the child exclusively a British subject at birth. He does not fit into the distinction.
By choosing two extremes – those who, at their birth, are nothing but U.S. citizens – “as distinguished from aliens or foreigners” – those who, at their birth, are in no way U.S. citizens – the Supreme Court in Minor provided the necessary criteria to properly discern their holding.
Nothing has been left open as to the Minor Court’s definition of a natural-born citizen. This is further made clear by the Court’s other – somewhat overlooked – federal citizenship holding:
“The very idea of a political community, such as a nation is, implies an association of persons for the promotion of their general welfare. Each one of the persons associated becomes a member of the nation formed by the association…
For convenience it has been found necessary to give a name to this membership. The object is to designate by a title the person and the relation he bears to the nation. For this purpose the words ‘subject,’ ‘inhabitant,’ and ‘citizen’ have been used, and the choice between them is sometimes made to depend upon the form of the government. Citizen is now more commonly employed, however, and as it has been considered better suited to the description of one living under a republican government, it was adopted by nearly all of the States upon their separation from Great Britain, and was afterwards adopted in the Articles of Confederation and in the Constitution of the United States. When used in this sense it is understood as conveying the idea of membership of a nation, and nothing more.”
Minor v. Happersett, 88 U.S. 162, 165-166 (1874). (Emphasis added.)
Therefore, when the Court uses the words, “citizen” or “citizenship”, no other meaning may be imputed other than, “membership of a nation”. But Jack Maskell believes he can overrule this specific holding of the Supreme Court by inserting the words “natural-born” where they do not appear. “Natural-born” only pertains to a requirement for the municipal office of President. Those who are natural-born meet that qualification, but all who are citizens, natural-born, naturalized abroad, naturalized here, at birth or later in life, are members of our nation. The word citizen – according to the Supreme Court in Minor – refers to “membership of a nation, and nothing more“. It’s the “nothing more” that Maskell fails to recognize.
In Maskell’s CRS memo, he alleges that the following statement from Minor left open the issue of whether persons born of aliens could be considered as natural-born citizens:
“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.” Id. at 167-168. (Emphasis added.)
Reading this passage in light of the definition of “citizen” from pg. 166 of Minor’s unanimous opinion, it becomes evident that what is referred to here is membership in our nation, and nothing more. Any attempt to insert the words – “natural-born” – into this passage to imply that the court left open the issue of whether those whose citizenship was in doubt might also be eligible to be President would be in direct opposition to the Court’s very holding of the case. This expression of doubt must be limited to the political status of the person, not to their eligibility to hold a municipal office. Political status is a legal term of art which means, “membership in a nation, and nothing more”. Presidential eligibility refers to municipal status. The holding not only determined Virginia Minor’s citizenship, it directly defined “citizen”, and that definition remains the law of the land today.
First, on pgs. 165-166, the Court defined the meaning of the word “citizen”. Then, on pgs. 167-168, the court defined the class of “natural-born citizens”. The Court left open the issue of who were “citizens” under the 14th Amendment, which the Court wisely avoided by exercising judicial constraint. Instead, the Court construed Article 2 Section 1, Clause 5, the natural-born citizen clause. In doing so, they defined and closed that class to persons born in the country to parents who are citizens.
The Minor Court’s unanimous opinion and definition of natural-born citizen have never been overruled or even questioned. In fact, the very passage defining the natural-born citizen class was re-stated in Justice Gray’s opinion from Wong Kim Ark. Had he intended to take issue with that definition, or to expand it, then his opinion would certainly contain something like this:
Wong Kim Ark is a natural-born citizen eligible to be President.
But no such statement exists. It’s also important to remember at all times that the Court in Minor specifically avoided construction of the 14th Amendment, thereby defining the class of natural-born citizens and indentifying Virginia Minor as a member of that class. Virginia Minor directly petitioned the Court to determine that she was a citizen under the 14th Amendment. But the Minor Court declined to construe the 14th Amendment, and thereafter set about defining the class of persons who were natural-born citizens of the United States in determining that she was a citizen.
In 1996, the US Supreme Court’s majority opinion by Justice Breyer in Ogilvie Et Al., Minors v. United States, 519 U.S. 79 (1996), stated that when the Court discusses a certain reason as an independent ground in support of their decision, then that reason is not simply dictum:
“Although we gave other reasons for our holding in Schleier as well, we explicitly labeled this reason an ‘independent’ ground in support of our decision, id., at 334. We cannot accept petitioners’ claim that it was simply a dictum.”
The Minor Court’s construction of Article 2, Section 1, Clause 5, of the United States Constitution was the independent ground by which the Court avoided construing the 14th Amendment’s citizenship clause.
Therefore, such construction is precedent, not dicta, despite POTUS eligibility not being an issue. The Court determined it was necessary to define the class of natural-born citizens, and the definition is current legal precedent.
Had the Court in Wong Kim Ark identified him as a natural-born citizen, there would have been no need to construe the 14th Amendment, just as it wasn’t necessary to construe it to determine Virginia Minor’s citizenship. But Wong Kim Ark was not natural-born, and therefore the Court was required to construe the 14th Amendment to determine his citizenship status.
Again, had Justice Gray’s opinion intended to state that Ark was natural-born, there would be a sentence in Gray’s opinion stating, Wong Kim Ark is a natural-born citizen. But there isn’t. No amount of tongue twisting can insert those words where they do not exist and do not belong.
The same is true for the Supreme Court’s unanimous opinion in Minor v. Happersett. Had the court intended to say – Some authorities go further and include as natural-born citizens children born within the jurisdiction without reference to the citizenship of the parents – then that is exactly what the US Supreme Court would have said. But they didn’t.
And the same can be said for the framers of the 14th Amendment. Had they intended to include the words “natural-born citizen” in the Amendment, then that is exactly what they would have done. But they didn’t. Any attempt to read those words into the 14th Amendment would render Article 2, Section 1, Clause 5, to be superfluous. And that goes directly against our entire body of national jurisprudence on the issue of statutory construction.
I will more thoroughly address the issue of statutory construction in the days ahead. (Since the state of Georgia will be hearing this issue on Jan. 26, 2012, I have decided to come forward with everything I have now, rather than waiting to publish my book.)
Leo Donofrio, Esq.
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