Saturday, October 29, 2011

Taking Down the Minor v. Happersett Silliness

One sees on every birther blog people claiming that Minor v. Happersett is binding precedent for the definition of "natural born citizen." I thought I would point out in detail why this is a meritless claim that no competent lawyer would make.

Obiter Dictum

The Supreme Court addresses legal questions presented to it that it decides to address. The holding is the answer to the legal question presented and the ratio decidendi is the rationale necessary to answer such question. These are what are precedent. Obiter dictum are judicial comments unnecessary to the decision of the case. Hence, in order to determine whether a statement is obiter dictum, one must look at the question presented and the holding of the case and see if such statement was necessary in the court's answering of the question. Obiter dictum is not precedent but still can be persuasive authority if well supported and reasoned. However, obiter dictum is often unsupported assertions that are not very persuasive. They also may be the opinion of only one justice as justices don't usually write separate opinions if they disagree only with obiter dictum. Obiter dictum may also be on subjects not thoroughly research, argued or briefed.

Virginia Minor sued the registrar of voters who refused to register her since Missouri law didn't allow women to vote. She lost and appealed to the Missouri Supreme Court. Minor argued that the 14th Amendment citizenship clause granted citizens the right to vote under the privileges and immunities clause and made several other Constitutional arguments that had nothing to do with citizenship. The defendant conceded Minor's citizenship in the original pleadings and never disputed or argued the issue in the subsequent appeals. It thus appears the issue was never briefed or argued. The Missouri Supreme Court never addressed the conceded fact of her citizenship and it found citizenship irrelevant to the right to vote, so it didn't matter if she was a citizen or not.

In the Supreme Court, the question thus presented to the Court was "whether, since the adoption of the fourteenth amendment, a woman, who is a citizen of the United States" has the right to vote. The question did not ask if Minor was a citizen. Whether one is a citizen and whether a citizen has certain rights are two different questions. If the question presented was whether a woman of Minor's status was a citizen and whether such citizenship gave her the right to vote, then the determination of her citizenship would be a holding since it would be an answer of a question before the Court. Since the question presented did not ask if Minor was a citizen, any statement that she was a citizen cannot be the holding. The birthers nevertheless argue that the determination of citizenship was necessary to reach the holding and thus is part of the ratio decidendi. Such is clearly not the case. The Court's actual holding was that the Constitution did not grant the right to vote to anyone and hence citizenship was irrelevant to the right to vote. Obviously, since the holding says being a citizen was irrelevant, it was unnecessary to determine if Virginia Minor was a citizen to make such holding. Hence, it is not part of the ratio decidendi but orbiter dictum. Such conclusion is made stronger in that the citizenship discussion cites no authority, never addresses contrary argument and never actually tells us the status of her parents. The Court does not do that other than which respect to dictum. As discussed below, it also shows all the signs of an issue that wasn't thoroughly researched, briefed or argued.

The birthers seem to think that the Court had to address the citizenship question before it reached the suffrage question for if she wasn't a citizen there would be no need to address the suffrage question. This is a misunderstanding of how the law works. It is not the Court's job to raise issues not raised by the litigants. The defendant might have argued lack of personal jurisdiction or that Minor wasn't a citizen and the Court may have accepted to review such issues in which case the question presented would include whether there was personal jurisdiction and whether she was a citizen. But the defendant didn't make such arguments which means such issues were waived and the Missouri Supreme Court and the US Supreme Court did not need to address them. The Missouri Supreme Court declined to address the issue while the US Supreme Court decided to address the issue on its own. However, it was under no obligation to do so and hence its discussion is dictum. Take Hamdi v. Rumsfeld for example which had a similar question in whether a citizen who was an enemy combatant could be detained by the Executive. Under birther logic, the Court would have had to first determine Hamdi's citizenship. In the actual legal world, the government didn't argue he wasn't a citizen and hence the issue was not before the Court and was not discussed in the opinion. An amicus brief actually asked the Court to address the citizenship issue on its own, but the Court declined. It is simply wrong as a matter of law to suggest that the Court has to address the issue of citizenship in these circumstances.

There is an even bigger problem with the precedent argument. Let's pretend that the Court did actually hold that Virginia Minor was a "natural born citizen" and the Court said children of aliens were not natural born citizens. Since it would have been unnecessary to address the status of children of aliens to determine Minor's status, any statements about children of aliens would be dictum. Of course, the Minor court makes no such statement about children of aliens.

The Common Law

Let's look at what Justice Waite actually said in Minor:

"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."

So, "natural born citizen" should be defined by the common law of the founders. Since the whole argument of the birthers is that "natural born citizen" is defined by the Law of Nations, rather than the common law, this should be devastating to them. However, not letting facts get in their way, they simply argue that the common law of the founders referenced therein is something other than the English common law. Of course, there was no other common law of the founders as all the states adopted the English common law after the revolution. Most actually adopted statutes saying they were adopting the English common law. The Court has looked to the common law of the founders many, many, many times over the years to interpret the Constitution and has always meant the common law we inherited from England. For example, when Justice Waite looked to the common law to interpret the due process clause in Munn v. Illinois, 94 U.S. 113 (1876), he makes clear he meant the English common law. Justice Waite later joined an opinion that addressed this point in greater detail:

"There is no common law of the United States, in the sense of a national customary law, distinct from the common law of England as adopted by the several States each for itself, applied as its local law, and subject to such alteration as may be provided by its own statutes....There is, however, one clear exception to the statement that there is no national common law. The interpretation of the Constitution of the United States is necessarily influenced by the fact that its provisions are framed in the language of the English common law, and are to be read in the light of its history. The code of constitutional and statutory construction which, therefore, is gradually formed by the judgments of this court, in the application of the Constitution and the laws and treaties made in pursuance thereof, has for its basis so much of the common law as may be implied in the subject, and constitutes a common law resting on national authority." Smith v. Alabama, 124 U. S. 465, 478 (1888).

In fact, at least four later Supreme Court cases cite Minor for the proposition that the Constitution should be interpreted by the English common law. See,e.g., United States v. Wong Kim Ark, 169 U.S. 649, 654, (1898); South Carolina v. United States, 199 US 437, 450 (1905); Schick v. United States, 195 US 65, 69 (1904); Kansas v. Colorado, 206 US 46, 95 (1907). If there is still any doubt that by saying "at common law" in Minor that Justice Waite meant the English common law, he used "at common law" in Reynolds v. US, 98 U.S. 145 (1879), in The Harrisburg, 98 U.S. 145 (1886) and in Munn v. Illinois, 94 U.S. 113 (1876) in clear reference to the English common law. One can look all day and will not find the Court using "at common law" or the common law of the founders to mean anything other than the English common law.

But birthers want us to think the Court, this one time only, was talking about a different common law of the founders as they know full well that, if talking about the English common law, Justice Waite would have found native children of aliens to be natural born if he examined the issue. Accordingly, some birthers quote mine for statements saying our common law was different from England. There were minor differences in the common law between states and between the states and England due to local precedents and statutes, yet it fundamental maxims were the same as explained by Justice Iradell in Chisholm v. Georgia. They cite James Mason saying our common law was not Englands not realizing that he and Patrick Henry were arguing that we wouldn't have a national common law at all unless we adopted the English one. Some argue that by "common law," they really meant the "law of nations." Of course, no court of that period every said "common law" when they meant "law of nations" particularly the "common law" of the founders. They find modern cases stating that the law of nations is one area where there is still a federal common law. Modern federal common law is not the common law of the founders. Some point out that early jurists said the "law of nations" were part of the "common law." Blackstone said the same thing, but being "part of" the common law is not the same as being "the common law" and English and American jurists didn't refer to the "law of nations" as the "common law." Some argue that the federal government never adopted the English common law. Such is true, but as Smith v. Alabama points out, the states that adopted the Constitution did and it is simply a fact that a multitude of terms in the Constitution are taken from the English common law and that is where the Court has looked to define these English terms.

Children of Aliens

Now, lets look at what the Minor Court says about the common law of citizenship:

"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."

This is obviously true as no one would doubt that children of British subjects, born in England were natural born subjects. Waite continues:

"These were natives, or natural-born citizens, as distinguished from aliens or foreigners."

Again obviously such persons were natives or natural born under English law. Notice he only distinguishes natives, or natural-born citizens, from aliens or foreigners thus dividing the world into two classes. These are, of course, the same two classes recognized by Blackstone who begins his discussion of English nationality law by saying "[t]he first and most obvious division of the people is into aliens and natural-born subjects." There were no naturalized subjects at common law as naturalization statutes were modifications of the common law. At common law, everyone was either natural born or alien born. Waite continues:

"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."

The birthers interpret these sentences as saying native children of citizens are the only natural born citizens and that some people think native children of aliens are some other type of citizen, though some people have doubts about that. This might be a possible, though not necessary, interpretation if the Court didn't make clear that it was talking about the common law which it just told us had only two classes of persons, natural born and alien born. If one was a citizen at birth under the common law, they were natural born. Hence, the most coherent reading is that Justice Waite was talking about the English common law but found some authority who had doubts or was uncertain about the traditional understanding of natural born under the English common law for children of some or all aliens. We know from Slaughterhouse Cases that there was disagreement over citizenship under the 14th Amendment on this Court. It wouldn't be surprising if such disagreements extended to the common law as well. But this is the trouble with trying to read too much into ambiguous dictum that fails to clearly define the law or tell us who had doubts or what the doubts were. The bottom line is the Court does not say it is discussing another type of citizenship other than natural born citizenship when discussing native children of aliens and insisting it was is putting words in the mouth of the Court. Hence, why one should rarely cite this kind of dictum. The Court also expressly declined to address the status of children of aliens and hence cannot be cited as authority on their status.

The birthers, of course, come up with their own arguments. Some birthers insist that since Waite used the term "citizen" when talking about children of aliens, it meant they were not "natural born citizens" as a natural born citizen could not also be a citizen. This is a silly argument. The Court actaully only called Virginia Minor a "citizen" and twice said native children of citizens were citizens, even though it also said they are natural born. The birthers often insist Waite was referring to "naturalized" citizenship when discussing children of aliens. Although such is just making stuff up, it makes no sense as no one in that period would argue such persons were naturalized. First, there was no naturalization statute in our history at that point that ever made native born children of aliens citizens at birth. Secondly, "naturalization," by definition, only applied to the foreign born. This was the only thing everyone in the Dred Scott court agreed on. One reason we have the 14th Amendment is that it was pointed out over and over in the 39th Congress that native-born blacks could not be naturalized and hence Congress had no authority to pass the Civil Rights Act of 1966. A member of the Minor Court agreed in the only interpretation of the Civil Rights Act saying their was universal agreement that only the foreign born could be naturalized. One could look all day and would not find any legal dictionary or treatise of the time saying that anyone born on US soil could be "naturalized." Some birthers also argue that even though in this paragraph the court was talking about the common law and the whole section of the case was talking about the original Constitution, not the 14th Amendment, the court suddenly switched to talking about citizenship under the 14th Amendment being in dispute when discussing children of aliens. Obviously a silly argument as the entire section was clearly talking about the original Constitution.

Lawyers have a duty of candor to the court. Insisting case law says something it doesn't clearly violates such duty. Parsing and reading between the lines of ambiguous dictum, claiming "the common law" means "the law of nations," insisting the court was talking about a type of citizen the court doesn't specify it is talking about is all really amateurish and would not be appreciated by a real court at all. Rather, competent lawyers will only cite Minor for what it actually says, that there was no doubt about the status or one group but doubts about the status of another that the court expressly declined to address. Hence, no real legal authority has ever cited Minor for the proposition that a natural born citizen needed citizen parents.

Wong Kim Ark

The real silliness of trying to read meaning into the ambiguous dictum in Minor is that anything such court said about native children of aliens would have been superseded by Wong Kim Ark 23 years later where, by the way, no one thought Minor was precedent in any way when they talked about who was a natural born citizen. The majority in Wong Kim Ark cited Minor to show the Minor court "was not committed" to a view on children of aliens since it declined to resolve the doubts some had. The Wong Kim Ark court agreed with Minor that natural born citizen must be defined by the common law but Wong Kim Ark left no doubt that such meant the English common law as this discussion was not dictum and hence left no doubt about what it was saying. The question before the Wong Kim Ark court was whether a native child of aliens was a citizen by birth under the 14th Amendment. The Court said that the 14th Amendment was simply declaratory of pre-existing law under the original Constitution, hence it was necessary to define who was a citizen at birth, or natural born, under the original Constitution to determine what the Amendment was declaratory of. Thus the discussion of the law under the original Constitution was part of the ratio decidendi or what is precedent under such case.

After telling us that "natural born citizen" must be defined by the English common law, the Wong Kim Ark Court cited several pages of English authority making clear that Wong Kim Ark would have been a natural born subject before stating that the rule which would have made him a natural born subject "prevailed under our Constitution." The Court then cites authority that "natural born citizen" was in reference to the principle which referred citizenship to the place of birth and that "natural born citizen" and "natural born subject" meant the same thing, stating the law was the same in the United States and in England. The Court goes on to cite authority after authority saying we adopted the English jus soli rule from the beginnning of our republic before telling us the 14th Amendment adopted the same rule and was simply intended to make clear the rule was color-blind.

So we have two cases that say "natural born citizen" must be defined by the common law of the founders. One doesn't clarify what this means, the other spends 20 pages explaining what the common law meant in England and the United States. One is orbiter dictum, the other binding precedent. One cites no authority at all, the other cites pretty much every legal giant in England and the United States on the subject. One court declined to address children of aliens, the other spent the entire opinion on children of aliens. One Court followed the other and hence supersedes any implication with respect to natural born status of the former court. Simply stated, no competent lawyer would claim Minor, rather than Wong Kim Ark, is precedent as to whether a native child of aliens is natural born.

Friday, January 7, 2011



For those who have trouble understanding U.S. v. Wong Kim Ark, I have reduced the decision to Q&A form:

Question: What does the citizenship clause of the 14th Amendment mean?

Justice Gray: It “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.”

Question: How do you know that?

Justice Gray: Well, “the face of the amendment, as well as from the history of the times, this was not intended to impose any new restrictions upon citizenship, or to prevent any persons from becoming citizens by the fact of birth within the United States who would thereby have become citizens according to the law existing before its adoption.” Hence it is “declaratory of existing rights and affirmative of existing law as to each of the qualifications therein expressed.”

Question: Why would they adopt an Amendment that meant the same thing as existing law under the original Constitution?

Justice Gray: “Its main purpose doubtless was, as has been often recognized by this court, to establish the citizenship of free negroes, which had been denied in the opinion delivered by Chief Justice Taney in Dred Scott v. Sandford, (1857) 19 How. 393, and to put it beyond doubt that all blacks, as well as whites, born or naturalized within the jurisdiction of the United States are citizens of the United States.”

Question: So in order to define the meaning of the 14th Amendment, we need to first define the existing law under the original Constitution?

Justice Gray: Yes, that is what declaratory means.

Question: So what was existing law under the original Constitution?

Justice Gray: Well, “[t]he Constitution of the United States, as originally adopted, uses the words ‘citizen of the United States,’ and ‘natural-born citizen of the United States.” However,”[t]he Constitution nowhere defines the meaning of these words.” Hence, “[i]t must be interpreted in the light of the common law, the principles and history of which were familiarly known to the framers of the constitution….” as “[t]he interpretation of the Constitution of the United States is necessarily influenced by the fact that its provisions are framed in the language of the English common law, and are to be read in the light of its history.”

Question: So how were these terms defined under the English common law?

Justice Gray: The English common law rule was “any person who (whatever the nationality of his parents) is born within the British dominions is a natural-born British subject.” Such 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.”

Question: But doesn’t the Constitution use the term “citizen” rather than “subject?”

Justice Gray: “The term citizen, as understood in our law, is precisely analogous to the term subject in the common law, and the change of phrase has entirely resulted from the change of governments” hence “subject and citizen are, in a degree, convertible terms as applied to natives.” Accordingly, “[a]ll 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 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.”

Question: So generally, anyone born in the United States is a natural born citizen?

Justice Gray: Yes, the natural born citizenship clause “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.”

Question: So the natural born citizenship clause and the 14th Amendment mean the same thing?
Justice Gray: Not sure how much clearer I can make it.