1. I am happy to see that Reality Check has made progress in his understanding of Minor. Now he finally concedes that “the most obvious criteria to determine that Virginia Minor was a citizen, that was she was a natural born child under common law at the time of her birth.”
2. But then he goes wrong when he says: “The court [Minor] made no ruling as to whether citizens born with foreign parents after the adoption of the Amendment XIV were or were not natural born citizens.”
The Court made no ruling as to whether those children were “citizens” of the United States under the Fourteenth Amendment, not whether they were natural born citizens under the common law. Here is the quote from Minor which clearly demonstrates that it left open the Fourteenth Amendment question regarding who was to be included as a “citizen” thereunder:
Some authorities go further and include as “citizens” children born within the “jurisdiction” without reference to the citizenship of their [p168] 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.
Minor, at 167-68 (emphasis supplied). [There's no emphasis; it is plain text.]
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Justice Gray refers to “citizens,” not “natural-born citizens” which he used previously and defined under the common law. He also uses “jurisdiction,” a word that is found in the Fourteenth Amendment and not in the common law definition of a natural born citizen.
3. Reality Check also errs when he said: “Justice Gray in his opinion in WKA cited Minor to show that the court had left that question open in that case as well as others.”
No, Justice Gray said that Minor had left open the Fourteenth Amendment question, not the natural born citizen question.
Commenting on Minor, Justice Gray said:
The decision in that 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 right to the elective franchise not being essential to citizenship.
The only adjudication that has been made by this court upon the meaning of the clause, "and subject to the jurisdiction thereof," in the leading provision of the Fourteenth Amendment is Elk v. Wilkins, 112 U.S. 94.
Id. at 680.
Justice Gray explained that the Fourteenth Amendment “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. Id. at 676.
Justice Gray further said: “These considerations confirm the view, already expressed in this opinion, that the opening sentence of the Fourteenth [p688] Amendment is throughout affirmative and declaratory, intended to allay doubts and to settle controversies which had arisen, and not to impose any new restrictions upon citizenship.” Id. at 687-88.
By the Civil Rights Act of 1866, "all persons born in the United States, and not subject to any foreign power, excluding Indians not taxed," were declared to be citizens of the United States. In the light of the law as previously established, and of the history of the times, it can hardly be doubted that the words of that act, "not subject to any foreign power," were not intended to exclude any children born in this country from the citizenship which would theretofore have been their birthright, or, for instance, for the first time in our history, to deny the right of citizenship to native-born children of foreign white parents not in the diplomatic service of their own country nor in hostile occupation of part of our territory. But any possible doubt in this regard was removed when the negative words of the Civil Rights Act, "not subject to any foreign power," gave way, in the Fourteenth Amendment of the Constitution, to the affirmative words, "subject to the jurisdiction of the United States.’"
All this proves that Minor made a “decision” (not dicta) on both natural born citizenship and voting rights. It also proves that Minor, which came before Elk, made no decision on how to interpret the Fourteenth Amendment which makes no reference to a natural born citizen. Indeed, Justice Grey told us that Minor did not address the Fourteenth Amendment question. A child born in the U.S. to alien parents could not be a citizen under the common law natural born citizen clause. Minor explained that some authorities maintained that such a child could be a “citizen” under the Fourteenth Amendment. It said that there were “doubts” whether that was correct. But since it was not necessary for the Court to reach that decision given that Virginia Minor was a natural born citizen and therefore a citizen, it left it open for another day. That other day came with Wong Kim Ark which explained that the Fourteenth Amendment removed all the “doubts” regarding whether a child born in the U.S. to alien parents was a “citizen” of the United States.
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Additionally, Chief Justice Fuller in his dissent in Wong explained that the Slaughterhouse Cases (1873) had stated that children of "’citizens or subjects of foreign States,’" owing permanent allegiance elsewhere and only local obedience here, are not otherwise subject to the jurisdiction of the United States than are their parents” and therefore not “citizens” of the United States under the Fourteenth Amendment. Id. at 724. He then added that he was not insisting that the statement was essential to the Slaughterhouse Cases’ decision, especially given that just two years later “Chief Justice Waite in Minor . . . remarked that there were doubts which, for the purposes of the case then in hand, it was not necessary to solve. But that solution is furnished in Elk v. Wilkins, 112 U.S. 94, 101.” Fuller then went on to explain how Elk addressed the Fourteenth Amendment question. Hence, we can see that Chief Justice Fuller saw Minor’s “doubts” as referring to the Fourteenth Amendment and not about defining a natural born citizen and that Minor left open the Fourteenth Amendment question and not any question about how a natural born citizen should be defined.
So, we can see that Minor did not say that there were any doubts about what a natural born citizen was or about whether a child born in the U.S. to alien parents was a natural born citizen. The only doubts that existed in Chief Justice Waite’s mind were about whether a child born in the U.S. to alien parents was now a “citizen” of the United States given the new Fourteenth Amendment. He did not address those doubts. Wong Kim Ark did. Unlike Virginia Minor who was a “natural born citizen” and therefore not in need of the Fourteenth Amendment, Wong was not a natural born citizen and so the Wong Kim Ark Court had to address the question of whether he was a “citizen” of the United States under the Fourteenth Amendment.
4. Finally, it is absurd to expect Chief Justice Waite to refuse to swear in President Chester Arthur even if he believed that he was not eligible. The Constitution does not give any single Justice of the U.S. Supreme Court any such authority. The role of the Chief Justice was to administer the oath for the President-elect. That did not include any jurisdiction to singly make a decision on whether he was eligible or not for the office.