Multiple Instances Of Historical Scholarship Conclusively Establish The Supreme Court’s Holding In Minor v. Happersett As Standing Precedent on Citizenship

Natural Born Citizen

Obama not Eligible

Recently, the New York State Board of Elections was caught trying to amend the US Constitution with an eraser by listing POTUS eligibility as available to any person “born a citizen”.  (Please review Pixel Patriot’s excellent analysis on this issue, “New York State BOE Web Site Cover Up“.)  The Constitution states that only a “natural born Citizen” may be president, a much more stringent requirement than simply being “born a citizen”.  This effort in New York is part of a much larger effort nationwide to falsely revise history (in this case by scrubbing the very words of our Constitution).  The tactic contributes to an insidious pattern of behavior being perpetrated just so Obama will be allowed to occupy the White House despite US Supreme Court precedent which states directly that he is not eligible.  (This report assumes Obama was born in Hawaii.)

Other instances of gross intellectual dishonesty documented at this blog include the recent attempt by to rewrite American history by scrubbing links in subsequent cases which establish that Minor v. Happersett has been cited multiple times as precedent on citizenship issues as well as voting rights.

Another instance of this misleading practice was the revision of a Michigan Law Review article by well-known legal scholar, Professor Lawrence Solum, wherein his original analysis – that only a person born in the US of citizen parents was beyond question eligible for POTUS – was scrubbed to include as eligible those born of only one citizen parent.

The citizenship issue decided in Minor v. Happersett has been documented as precedent by multiple sources of legal scholarship.  (See also my previous two reports analyzing Minor v. Happersett, here and here.) Below, I have assembled multiple quotations from various published literature which cogently establish that the Supreme Court issued two holdings in Minor; one on citizenship and the other on voting rights.  That the citizenship issue is precedent, and not dictum, has never been questioned in our national history until now, just as the very words of the Constitution are being scrubbed.  My research indicates unequivocally that for over a century before the appearance of Obama, Minor was recognized and cited as precedent on the definition of federal citizenship.

We turn now to an esteemed legal scholar and Government attorney who specialized in citizenship law.  He will provide unquestionable clarity on the issue of why Minor v. Happersett is precedent on citizenship as well as voting rights.


The source in question is Frederick Van Dyne who, while holding the office of Assistant Solicitor for the US Department of State, published analysis that the citizenship decision in Minor v. Happersett was precedent.

Van Dyne argued that persons born of foreign parents on US soil were “native-born citizens” of the US prior to the Civil Rights Act of 1866 and the adoption of the 14th Amendment.  But Van Dyne, while discussing the holding in the New York case of Lynch v. Clark (not binding on the Federal Courts), failed to endorse that case’s opinion that all native-born citizens of foreign parentage were natural-born citizens.  In his famous treatise, “Citizenship of the United States” (Lawyers Co-Operative Publishing Co., 1904), Van Dyne only went so far as to state that such persons were “native-born citizens”.   (See Van Dyne’s treatise at pgs. 6-7.)

Where the US Supreme Court in Minor differs from Obama eligibility propaganda is that the former regards being “native-born” as just one element necessary to meeting the natural-born citizen standard of POTUS eligibility, whereas the latter incorrectly argue that it is the only element.  As you will see below, Van Dyne directly recognized that the US Supreme Court’s decision in Minor was precedent on citizenship, and that the holding therein defined natural-born citizens as those born in the US of citizen parents.

In the following passage, Van Dyne argues that previous American cases recognized that persons born on US soil were US citizens regardless of the citizenship of the parents.  However, Van Dyne also points out that a statement by the Supreme Court in the Slaughter-House Cases appears to contradict this theory.  But Van Dyne’s analysis stresses that the contradictory statement in the Slaughter-House Cases  is dictum.  

He then refers to the “decision” in Minor v. Happersett on citizenship in order to counter the “dictum” from the Slaughter-House Cases.  Van Dyne clearly recognized the Minor Court’s decision on citizenship as precedent which outweighs the dictum of the Slaughter-House Cases.  In doing so, Van Dyne quotes (see pgs. 12-13) the Minor Court’s definition of a natural-born citizen as one born in the US to citizen parents:

Very rarely, whilst doing research, does one come upon historical evidence that so perfectly establishes the point in question.  Examine the last paragraph again:

“The decision in this case was that a woman born of citizen parents within the United States was a citizen of the United States, although not entitled to vote, the elective franchise not being essential to citizenship.”  (Emphasis added.)

The “decision” in Minor is twofold:

1) woman are equal citizens to men;

2) voting is not a right of citizenship.

The first point is still good law.  This may seem obvious now, but in 1875 it wasn’t.  Virginia Minor did not accept that citizenship without voting rights was equal citizenship.  She argued that women were being treated as “halfway citizens” and she directly petitioned the Court for a determination which stated that women were equal citizens to men.

The Court in Minor, referring directly to Article 2 Section 1, and specifically avoiding the 14th Amendment, held that women, if born in the US to citizen parents, were citizens and that their citizenship was equal to men.  The Court further stated that this “class” of persons were “natives, or natural-born citizens”.

The Court also held that while women were equal citizens to men, the Constitution did not provide a right to vote to anyone, male or female.  This part of the holding was later erased by the 19th Amendment, but the citizenship determination remains as good law today.  Therefore, the Court’s decision in Minor operates against Obama being eligible, since his father was never a US citizen.

Van Dyne examines the Slaughter-House dictum carefully since it is a statement made by the highest court in the nation which contrasts his view that all persons born on US soil are native-born citizens.  In classifying the Slaughter-House statement as dictum, Van Dyne notes that determining the citizenship of persons born on US soil to alien parents was not an issue before the court in that case.  He then points to the “decision” on citizenship from Minor to contrast the Slaughter-House dictum, and in doing so Van Dyne makes clear that Virginia Minor’s citizenship was an issue directly before the Court in Minor.

Note the following crucial passage from Justice Waite’s opinion again, paying particular attention to the punchline:

“[T]he Constitution…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’…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 [88 U.S. 162, 168]   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.” (Emphasis added.)

Current propaganda attempting to sanitize Obama in light of the Supreme Court’s precedent in Minor mis-directs that Minor’s citizenship was not an issue directly before the Court.  But in the passage above, the Court’s unanimous opinion clearly states that “the whole argument of the plaintiffs proceeds upon that idea.”  So, squarely before the Court was the issue of whether women were equal citizens.

Also consider the name of Van Dyne’s treatise, “Citizenship In The United States”.  As to the soundness of Van Dyne’s treatise, the following review appears in The American Journal Of International Law:

“The author of this work now occupies an important post in the American Consular Service.  Three years ago, while holding the position of assistant solicitor of the Department of State, he published a work on citizenship of the United States, a work which was at the time highly commended by competent critics and which those who have since used it have found to be an excellent manual.”

Van Dyne stressed that the decision in Minor contradicted the earlier dictum in the Slaughter-House Cases.  And Van Dyne specifically quoted the natural-born citizen definition from Minor (taking no issue with it) just before announcing the Court’s “decision” that women born in the US to citizen parents were citizens.

Again, the 14th Amendment was not necessary in determining Virginia Minor’s citizenship since the Court was able to rely upon a direct construction of Article 2 Section 1 instead.  The Court held that Minor was in the “class” of persons who were designated as natural-born citizens, whereas those whose citizenship faced doubt due to alien parentage required help from the 14th Amendment.

And such help came in 1898 when the Supreme Court held that Wong Kim Ark was a US citizen under the 14th Amendment.  Since Minor was a natural-born citizen, the 14th Amendment need not be construed.  But Wong Kim Ark was not in the class of natural-born citizens (previously defined in Minor), and therefore the Supreme Court was forced to directly construe the 14th Amendment to resolve citizenship doubts pertaining to the “class” of persons born in the US to alien parents.

It is crucially important to recognize that Wong Kim Ark’s citizenship could not be established without the 14th Amendment since he was not a natural-born citizen.  If he had been in that class, the Court would have established his citizenship under Article 2 Section 1 as the court had previously done for Virginia Minor.


Virginia Minor’s briefs (prepared by her husband, attorney Francis Minor) refused to blindly accept lower court holdings which stated that women were equal citizens to men.  The Minors argued that if women were not allowed to vote, then their citizenship was not equal to men.  The exact wording of Minor’s argument stated (see pg. 59):

“There can be no division of citizenship, either of its rights or its duties.  There can be no half way citizenship.  Woman, as a citizen of the United States, is entitled to all the benefits of that position, and liable to all its obligations, or to none.”

Justice Waite spent so much time analyzing Minor’s citizenship – and federal citizenship in general –  because Virginia Minor directly petitioned the Court to do so.  Her “whole argument” depended on it.  And since her citizenship was an issue before the Court, it issued a “decision” that she was a citizen, whereas the Court’s citizenship statement in the Slaughter-House Cases was dictum since no citizenship issue was before the Court in that case.  And here we have – literally – a textbook example illustrating the difference between dictum and precedent.

The citizenship of Minor, and of all women, is so ingrained in the history of Minor v. Happersett, that multiple sources besides Van Dyne have also documented the citizenship precedent set by the Supreme Court therein.  For example, please review “Inventing Citizens, Imagining Gender Justice: The Suffrage Rhetoric of Virginia and Francis Minor”, Quarterly Journal of Speech Vol. 93, No. 4, November 2007, pp. 375-402, by Angela G. Ray & Cindy Koenig RichardNote the title, “Inventing Citizens”.  Indeed, the entire case, as stressed by Justice Waite, revolves around the issue of citizenship.  Here are some relevant quotes from this peer-reviewed article:

“In this milieu, woman’s rights activists, seeking to fulfill revolutionary promises for themselves, pressed the courts to define the privileges of citizenship as applying to all citizens regardless of sex… The Minor decision… acknowledged women’s status as citizens but denied that citizenship entailed voting rights…” (PDF at pg. 2).

“This essay demonstrates the ingenuity, the complexity, and the challenges of litigating a nineteenth-century test case that sought to expand the legal definition and performative parameters of citizenship.” (PDF at pg. 3).

“On March 29, the Court’s unanimous decision in Minor v. Happersett, written by first-term Chief Justice Morrison R. Waite, accepted that women were citizens but disconnected citizenship from the franchise, supported the authority of states to deny voting rights, and ensured the necessity of a federal amendment for women’s enfranchisement.  The Minors’ rhetoric addressed not only judicial authorities but also women citizens.  The arguments that they espoused and performed asked how citizenship should be conceptualized and how it should be enacted.” (PDF at pg. 7).

“For the Minors, citizenship could not be partial, and any exclusions from federal citizenship rights had to be made explicit in federal law. The Minors insisted that the definition of citizenship required that its privileges be applied equally and fully. In 1869 Virginia Minor told the Missouri Woman Suffrage Association that if women ‘are entitled to two or three privileges [of citizenship], we are entitled to all.’ The Minors’ argument to the U.S. Supreme Court elaborated this point: ‘There can be no half-way citizenship. Woman, as a citizen of the United States, is entitled to all the benefits of that position, and liable to all its obligations, or to none.’ “  (PDF at pg. 8).

“Inventing Citizens” was published in 2007, one year before Obama’s dual nationality at birth problem first came to the general public’s attention via the case I brought against the NJ Secretary of State – Donofrio v. Wells – which was referred to the full court by Justice Clarence ThomasThere does not appear to be even one source which alleges that the citizenship issue from Minor was dictum prior to October 2008.  But there are numerous sources which document the citizenship issue as precedent.

For example, the Oxford Companion To The Supreme Court Of The United States (2d edition, 2005) has this to say about Minor v. Happersett:

“It is notable for its narrow definition of citizenship ‘as conveying the idea of membership of a nation, nothing more’… and for its firm, unanimous rejection of the Fourteenth Amendment as a source either of a substantive federal suffrage right or of a federal limit on state control of the franchise.”  (Image of text.)

The Oxford Companion makes clear that as late as 2005, Minor is “notable” for both its definition of citizenship and voting rights.  Both were precedent until the 19th Amendment nullified the voting rights issue, whereas the citizenship precedent still stands today.

In “The Boundaries of Her Body: The Troubling History of Woman’s Rights In America”, by Debran Rowland (Sphinx Publishing, 2004), it states that the Supreme Court “held” that women were citizens:

” ‘There is no doubt that woman may be citizens’, the Court held. ” (See pg. 24.)

In “The American Midwest: An Interpretive Encyclopedia”, by Richard Sisson, Christian Zacher, Andrew Cayton (Indiana University Press, 2007), the Supreme Court’s citizenship holding was also acknowledged:

“On March 29, 1875, a unanimous Supreme Court ruled that states did not violate the Constitution when they denied women the right to vote.  Women were citizens of the United States the court found, but voting was not a right of citizenship.”  (See pg. 1593.)

The tandem issues of citizenship and voting rights were again noted in, “Race, Class and Gender in the United States: an Integrated Study”, by Paula S. Rothenburg (Worth Publishers, 6th Edition, 2004):

“In this case the court held that although women were citizens, the right to vote was not a privilege or immunity of national citizenship before adoption of the 14th Amendment, nor did the amendment add suffrage to the privileges and immunities of national citizenship.” (See pg. 485.) (Emphasis added.)

In “American Citizens and Their Government”, by Kenneth Wallace Colegrove (Abbington Press, 1921), the author noted that the Supreme Court “decided” women were citizens:

“The court decided that while Mrs. Minor was clearly a citizen of the United States, she was not entitled to vote because the right of suffrage was not necessarily one of the privileges and immunities of citizenship.” (See pg. 64.)

Until Obama came along, Minor v. Happersett was always viewed as the precedent ruling that women were equal citizens to men.  I have not seen any resources that pre-date Obama’s 2008 election campaign which state that the Supreme Court’s analysis of Virginia Minor’s citizenship was dictum and not precedent.

The Supreme Court’s analysis in Minor elicited a specific definition of the class of natural-born citizens in order to avoid a tricky interpretation of the meaning of the 14th Amendment’s nebulous phrase, “subject to the jurisdiction thereof”. Therefore, according to the Supreme Court’s definition, Obama is not eligible to be President since the class of natural-born citizens was held to be those born in the US to parents who are citizens.  His father was never a US citizen, nor was he ever permanently domiciled here.

That Virginia Minor was not running for President makes no difference at all.  By directly construing Article 2 Section 1 in determining that Minor was a citizen prior to the adoption of the 14th Amendment, the Supreme Court held that persons born in the US to parents who are citizens are “natives or natural-born citizens.”  These are referred to as a “class” of persons separate from the class of persons born to alien parents.  The Court in Minor acknowledged that, despite existing doubts, the class born to non-citizen parents might be citizens.  But they weren’t natural-born.

This was confirmed in 1898 by the Supreme Court in Wong Kim Ark, wherein the Court determined that a child born in the US of alien parents (permanently domiciled here) was a US citizen, but that such a person’s citizenship is determined by operation of the 14th Amendment.

Had Wong Kim Ark been a natural-born citizen like Virginia Minor, the Supreme Court in Wong Kim Ark could have avoided the 14th Amendment as did the Supreme Court in Minor v. Happersett.

In construing Article 2 Section 1, the Court in Minor exercised proper judicial restraint by not reaching further than necessary to make an expansive landmark interpretation of the 14th Amendment.

The Minor opinion acknowledged that the decision might seem unfair and that the law itself might be unfair, but the Court recognized that their duty was to uphold the law as written, and further stated that if the law was unfair it should be changed.  By exercising such restraint, the Court gave birth to a standing definition which conclusively determined the class of natural-born citizens.


In conclusion, I must point out that the holding/definition of a natural-born citizen issued by the Supreme Court in Minor v. Happersett does not mention the Law of Nations or Vattel.  I realize there has been a great deal of scholarship unearthed by both sides of this argument.  But in Minor we have direct Supreme Court precedent for this issue which renders other sources moot.

Vattel does not make national law.  The US Supreme Court and the Congress make national law.  Unless the Supreme Court overrules the citizenship precedent stated in Minor v. Happersett, or the Constitution is amended, the case stands as governing national law.  This is due to the separation of powers determined by the Constitution itself.  It’s important to focus on the Supreme Court’s holding as opposed to allowing the precedent set therein to be hijacked by those who seek to define this definition as “Vattelist” or “foreign”.  The US Supreme Court in Minor failed to mention Vattel, so despite any influence he might have had on the framers, the definition stated is to be referred to as the US Supreme Court definition of natural-born citizen, and by no other name.


I have been asked many times over the last three years whether I believe this issue will ever reach a decision on the merits in any federal court.  For a long time, I thought the answer was an emphatic “never” since the Supreme Court was twice handed the issue on a silver platter.  Both Donofrio v. Wells, and the petition I prepared in Wrotnowski v. Bysiewicz were referred to the full Court for conference.  Nobody knows how many votes, if any, were in favor of reviewing the eligibility of Obama.  Regardless, certiorari was refused in both cases.

However, with a recent trial balloon thrown out by the Governor of North Carolina regarding a possible suspension of elections in 2012, the game has changed drastically.

The economy all over the world is scary.  Protests are circling the nation.  The UN is increasing its interference with national sovereignty.  And all currencies could go belly up as the Ponzi scheme of Fiat paper and fractional reserve banking threatens to make the Great Depression seem not so great.  And there is a very strong possibility Obama could lose this election.  I am very concerned that he will not leave office quietly if the people do not invite him to return and that suspension of the 2012 election might be attempted.  This could happen through a national emergency and subsequent martial law.

If Obama were to lose the election and graciously move on, the issue of his eligibility will probably fade away.  However, if Obama attempts to suspend the election or otherwise retain the White House after losing in 2012, then the eligibility issue has an exponentially greater chance of being litigated before the DC District Court by Writ of Quo Warranto, and finally ending up in the US Supreme Court.

Unfortunately, I truly believe we are headed for a national moment of intense Constitutional conflict.  There are provisions of the Patriot Act and various Executive orders which allow for martial law scenarios to unfold.  If there is an emergency (real or imagined), the Obama might invoke such laws to declare martial law, suspend elections, and incarcerate alleged enemies of the state.

If a truly eligible President were operating under any of those dangerous powers, it might be difficult to impeach him.  Should Obama avail himself of such draconian measures, the only argument available to remove him may be that he was never eligible to be POTUS.  Such a determination would render his entire administration void, which is very different from impeachment.  This is why, should the issue ever reach the Supreme Court, it becomes imperative that Justices Kagan and Sotomayor recuse themselves.  Their appointments could be nullified if Obama’s administration is voided which would cause them to have a personal stake in the outcome.  (For a more thorough explanation as to the fallout of voiding a government office, as opposed to removal via impeachment or expulsion, see my previous report on Quo Warranto and comments thereto specifically noting precedent in the Senate.)

Furthermore, I believe there is an unseen force which is already in place, waiting for its moment to take this nation and cash in the change promised by dear leader.  You can feel the rhetoric surfacing against those who have worked hard to achieve success and wealth.  When you hear the consistent mantra that no person is “better” than any other person sung by the masses as they surround your home, you will know that glorious American ideals of success through hard work are being sacrificed on the altar of redistribution of wealth.

Just ask 789 Chrysler dealers where their franchises went.  Their private property was taken and given to others.   And a foreign corporation from a socialist nation was gifted an American institution at the cost of $23 billion to the US taxpayer.  Fiat paid nothing for Chrysler, not one dime.  This was done at the insistence of Obama who demanded that no American company was capable of turning Chrysler around.  I didn’t see one single protestor on that one.

I pray that Chrysler is not a blueprint of things to come… to your door, and inside your house.

by Leo Donofrio, Esq.

Copyright 2011

2 thoughts on “Multiple Instances Of Historical Scholarship Conclusively Establish The Supreme Court’s Holding In Minor v. Happersett As Standing Precedent on Citizenship

  1. Just pressed this.
    Bob A.

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