Skip to comments.Academia Shrugs: Obama's Citizenship and the Presidency (Binding precedent - Minor v. Happersett)
Posted on 01/06/2012 11:26:08 AM PST by Red Steel
By avoiding the contentious question of Obama's "natural born" eligibility, America's academic establishment has also stifled discussion on the inextricably related issue of citizenship law in our country, in the greater context of immigration reform.
The first instance of academia's cloak-throwing was noted in an American Thinker article which described the revision made by Professor Larry Solum to his scholarly paper that addressed Senator McCain's eligibility, "Originalism and the Natural Born Citizenship Clause." The original version was published in 2008. Without saying it explicitly in his footnote of explanation, Solum's revision implied, subtly, that he also supported the eligibility of Obama, with his one citizen parent instead of two -- yet Solum did not include citations or references that defended his rationale for the change, nor has he published papers since...
Solum's unsupported rewriting was mentioned again in the more recent article, "The Great American Memory Hole." That column also described the strange and related story of "JustiaGate" -- the "mangling" of text and citations, for approximately a three-year period beginning mid-2008, on Justia's database for 25 Supreme Court decisions that directly cited the particular case of Minor v Happersett. It so happens that Minor contains a succinct definition of "natural born" citizenship (essentially, born in the country to citizen "parents," plural) that attorney Leo Donofrio contends represents binding precedent. In addition to the anomalies noted at Justia, Donofrio discovered a complete block of relevant text missing from Ex Parte Lockwood at Cornell -- a case that Donofrio argues further proves his assertion that Minor's statements on citizenship are binding precedent vs. dicta.
"In the Spirit of Truth," Donofrio has, via his "Natural Born Citizen" blog, invited other attorneys to directly challenge his assertions:
The definition of natural born citizen in Minor v. Happersett is binding precedent
(Excerpt) Read more at americanthinker.com ...
Ping. Great article.
I read the article this morning. Good stuff!
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I took junior high school civics around 1964.
I clearly recall that our textbook stated that eligibility for president required two American citizen parents.
I attended school with many Cuban immigrants, so this was not a trivial issue.
I cannot recall a single person - American or Cuban - who challenged the Constitutional interpretation at that time.
It would be interesting to survey the major civics textbooks from that period to see what sources were used to support that declaration.
It would also be interesting to see at what point in time major civics textbooks swerved away from this long accepted Constitutional tradition.
The Minor v Happersett opinion clearly states a native born with two U.S. citizen parents is a natural born citizen and then confirms there are doubts a native born without two U.S. citizen parents is a natural born citizen.
Consequently, we can only conclude a native born with two U.S. citizen parents is a natural born citizen.
Later, Wong Kim Ark affirmed a native born with two non-citizen parents who are not diplomats and are permanent residents of the U.S. is a Natural born citizen.
So, we have two questions answered and numerous other situations unanswered as to who is a natural born citizen and who is not.
Native born with two citizen parents is a Natural born citizen.
Native born with two non-citizen parents who are not diplomats and permanent residents of the U.S. is a Natural born citizen.
Native born with one U.S. citizen parent and one parent residing in the US with a temporary student visa has not been answered as to whether or not he/she is a Natural born citizen.
I respect very much the effort you have made in past years on this issue both on these pages and otherwise, so please know I mean this post in good faith. And anyone who, after reading this post, concludes I am a troll can look at my About Page which has been there in essentially in its present form since 2008.
Just revisited Lockwood at Findlaw. There must be a block of text missing there was well.
The decision at Findlaw suggests the only reason Lockwood cited Minor was because both Lockwood and Minor were females; an essential element of the question before the Lockwood court.
The only reference in Lockwood regarding Minors dictum is:
...women, if born of citizen parents within the jurisdiction of the United States, have always been considered citizens of the United States
Cant find anything in the Findlaw version of Lockwood that indicates nbc.
I know I am pi$$ing on the parade here, and that is even before I raise the problems I have with Minor. We have a winning hand in this struggle but I do not believe it is supported by Lockwood unless I see a better version.
So; in the ‘end’ per this decision; is Marco Rubio eligible to run for President - or not. (Will read; but later...)
What is the legal enema for a “binding precedent?”