Posted on 04/24/2010 9:18:10 AM PDT by Mr Rogers
I'm not a lawyer, nor do I play one, so what follows is just IMHO on how the case of Perkins v Elg affects the definition of natural born citizen. I offer it, not as definitive, but as evidence that the Supreme Court has ruled in the past in a way that might well lead to its ruling in favor of Obama, if the case is based on the citizenship of Obama's presumptive father.
The facts as stated in the decisions:
"The question is whether the plaintiff, Marie Elizabeth Elg. who was born in the United States of Swedish parents then naturalized here, has lost her citizenship and is subject to deportation because of her removal during minority to Sweden, it appearing that her parents resumed their citizenship in that country but that she returned here on attaining majority with intention to remain and to maintain her citizenship in the United States.
Miss Elg was born in Brooklyn, New York, on October 2, 1907. Her parents, who were natives of Sweden, emigrated to the United States sometime prior to 1906, and her father was naturalized here in that year. In 1911, her mother took her to Sweden, where she continued to reside until September 7, 1929. Her father went to Sweden in 1922, and has not since returned to the United States. In November, 1934, he made a statement before an American consul in Sweden that he had voluntarily expatriated himself for the reason that he did not desire to retain the status of an American citizen and wished to preserve his allegiance to Sweden.
In 1928, shortly before Miss Elg became twenty-one years of age, she inquired an American consul in Sweden about returning to the United States and was informed that, if she returned after attaining majority, she should seek an American passport. In 1929, within eight months after attaining majority, she obtained an American passport which was issued on the instructions of the Secretary of State. She then returned to the United States, was admitted as a citizen and has resided in this country ever since."
Both parents were originally Swedish. The father was naturalized as a US citizen the year before Marie was born. It is unclear to me if her mother was ever naturalized - one sentence would indicate yes, the other no. Some say the mother would have been automatically naturalized when her husband was...and I don't know how naturalization law read at the time. The summary states " A child born here of alien parentage becomes a citizen of the United States."
Again, I concede that I do not know the naturalized status of the parents at her birth.
When Marie was 4, her mother took her to Sweden, where she and her mother lived as Swedes. This was IAW a treaty the US had with Sweden.
The father later returned to Sweden and formally renounced his US citizenship.
Marie was just short of 21 when she asked about returning to the USA. She was 22 when she returned.
The government argued that she was not a US citizen at all, IAW a treaty signed with Sweden.
In a unanimous decision, the US Supreme Court found:
"1. A child born here of alien parentage becomes a citizen of the United States. P. 307 U. S. 328.
2. As municipal law determines how citizenship may be acquired, the same person may possess a dual nationality. P. 307 U. S. 329.
3. A citizen by birth retains his United States citizenship unless deprived of it through the operation of a treaty or congressional enactment or by his voluntary action in conformity with applicable legal principles. P. 307 U. S. 329."
"6. The Act of March 2, 1907, in providing "That any American citizen shall be deemed to have expatriated himself when he has been naturalized in any foreign state in conformity with its laws, . . . " was aimed at voluntary expatriation, and was not intended to destroy the right of a native citizen, removed from this country during minority, to elect to retain the citizenship acquired by birth and to return here for that purpose, even though he may be deemed to have been naturalized under the foreign law by derivation from the citizenship of his parents before he came of age. P. 307 U. S. 342.
Page 307 U. S. 326
This is true not only where the parents were foreign nationals at the time of the birth of the child and remained such, but also where they became foreign nationals after the birth and removal of the child.
7. Recent private Acts of Congress for the relief of native citizens who have been the subject of administrative action denying their rights of citizenship cannot be regarded as the equivalent of an Act of Congress providing that persons in the situation of the respondent here have lost the American citizenship which they acquired at birth and have since duly elected to retain. P. 307 U. S. 349."
In a bit more detail, it found:
"First. On her birth in New York, the plaintiff became a citizen of the United States. Civil Rights Act of 1866,
Page 307 U. S. 329
14 Stat. 27; Fourteenth Amendment, 1; United States v. Wong Kim Ark, 169 U. S. 649. In a comprehensive review of the principles and authorities governing the decision in that case -- that a child born here of alien parentage becomes a citizen of the United States -- the Court adverted to the
"inherent right of every independent nation to determine for itself, and according to its own constitution and laws, what classes of persons shall be entitled to its citizenship."...
... As at birth she became a citizen of the United States, that citizenship must be deemed to continue unless she has been deprived of it through the operation of a treaty or congressional enactment or by her voluntary action in conformity with applicable legal principles."
Notice they found that her citizenship rested, not in the citizenship of her father, but in being born in NY. This is true even if the child has alien parentage. They later cite "According to the Constitution and laws of the United States as interpreted by the courts, a child born to alien parents in the United States is an American citizen, although such child may also be a citizen of the country of his parents according to the law of that country." In that case, the parents were NOT US citizens.
Notice they also quote approvingly of the decision involving Steinkauler:
"The facts were these: one Steinkauler, a Prussian subject by birth, emigrated to the United States in 1848, was naturalized in 1854, and in the following year had a son who was born in St. Louis. Four years later, Steinkauler returned to Germany, taking this child, and became domiciled at Weisbaden, where they continuously resided. When the son reached the age of twenty years, the German Government called upon him to report for military duty, and his father then invoked the intervention of the American Legation on the ground that his son was a native citizen of the United States. To an inquiry by our Minister, the father declined to give an assurance that the son would return to this country within a reasonable time. On reviewing the pertinent points in the case, including the Naturalization Treaty of 1868 with North Germany, 15 Stat. 615, the Attorney General reached the following conclusion:
"Young Steinkauler is a native-born American citizen. There is no law of the United States under which his father or any other person can deprive him of his birthright. He can return to America at the age of twenty-one, and in due time, if the people elect, he can become President of the United States; but the father, in accordance with the treaty and the laws, has renounced his American citizenship and his American allegiance and has acquired for himself and his son German citizenship and the rights which it carries and he must take the burdens as well as the advantages. The son being domiciled with the father and subject to him under the law during his minority, and receiving the German protection where he has acquired nationality and declining to give any assurance of ever returning to the United States and claiming his American nationality by residence here, I am of the opinion that he cannot rightly invoke the aid of the Government of the United States to relieve him from military duty in Germany during his minority. But I am of opinion that, when he reaches the age of twenty-one years, he can then elect whether he will return and take the nationality of his birth with its duties and privileges, or retain the nationality acquired by the act of his father. This seems to me to be 'right reason,' and I think it is law."
Notice that "native born" is used as sufficient basis that "He can return to America at the age of twenty-one, and in due time, if the people elect, he can become President of the United States..."
The Court makes no distinction between "native born" and "natural born citizen".
This is true later on, when the Court says:
"Fifth. The cross-petition of Miss Elg, upon which certiorari was granted in No. 455, is addressed to the part of the decree below which dismissed the bill of complaint as against the Secretary of State. The dismissal was upon the ground that the court would not undertake by mandamus to compel the issuance of a passport or control by means of a declaratory judgment the discretion of the Secretary of State. But the Secretary of State, according to the allegation of the bill of complaint, had refused to issue a passport to Miss Elg "solely on the ground that she had lost her native born American citizenship." The court below, properly recognizing the existence of an actual controversy with the defendants (Aetna Life Ins. Co. v. Haworth, 300 U. S. 227), declared Miss Elg "to be a natural born citizen of the United States," and we think that the decree should include the Secretary of State as well as the other defendants. The decree in that sense would in no way interfere with the exercise of the Secretary's discretion with respect to the issue of a passport, but would simply preclude the denial of a passport on the sole ground that Miss Elg had lost her American citizenship."
Please note that the Court rejects the idea that she lost her "native born American citizen" and had instead remained a "natural born citizen".
You can read the full decision at:
http://supreme.justia.com/us/307/325/case.html#328
He also "posits" a view less favorable to Obama in the same article. You and I have discussed Lawrence Solum and his articles for Michigan Law Review, back when you first signed up to Free Republic. You know that semantic originalism is not particularly supportive of a more liberal interpretation of the term of art "natural born citizen," and yet here you are, leaving the impression that it does.
Why?
Exactly so. Because Bloodline citizenship and ius soli citizenship both are granted at birth, everyone has confused the two as the same thing and as having the same legal ramifications, even though that assumption is not legally or historically justified. Both are citizens, but the Constitution never defines which are natural born. Thus both of these types of citizenship can be called native born, but not necessarily natural born. That is why the judges can use the terms interchangeably in their decisions. All NBCs are native born, but not all born citizens are necessarily natural born. The Supreme Court must settle the question.
The status of a married immigrant seems to have varied considerably. There is a good article here:
http://www.archives.gov/publications/prologue/1998/summer/women-and-naturalization-1.html
“There were certain legal and social provisions, however, governing which women did and did not go to court to naturalize. In general, immigrant women have always had the right to become U.S. citizens, but not every court honored that right. Since the mid-nineteenth century a succession of laws worked to keep certain women out of naturalization records, either by granting them derivative citizenship or barring their naturalization altogether. It is this variety of laws covering the history of women’s naturalization, as well as different courts’ varying interpretation of those laws, that help explain whether a naturalization record exists for any given immigrant woman.”
However, in this decision, the court never refers to her father’s status in any discussion of citizenship. It seems to consider that irrelevant as well, and to take her birth in NY as evidence that she was a citizen, a native citizen, and a natural born citizen.
Hmm. What year was your grandfather naturalized and what year were they married. All women who were married to naturalized US Citizens became US citizens ipso facto until the law was changed in 1922. By the way, out of curiosity, how do you know that your grandmother was not a citizen? If your grandparents were married in 1920 and in the US then maybe the 1920 US census would tell you if you haven't already seen it.
“The long and the short of Elg is that she was a natural born citizen because both her parents were citizens and she was born in the United States.”
The long and short of it is that they consider her a citizen, a native born citizen, and a natural born citizen based on her birth, and make no reference to her father or mother’s citizenship as relevant to any of those.
As stated in the decision, it states, “was born in the United States of Swedish parents then naturalized here...Her parents, who were natives of Sweden, emigrated to the United States sometime prior to 1906, and her father was naturalized here in that year.”
The failure to mention her mother may be due to them considering it irrelevant or assuming she was a naturalized citizen per the link I provided a moment ago in another post.
Please also see post 97. I explain how I think a court will approach the question of a natural born citizen, based on how Indiana’s courts did when Obama’s NBC was challenged.
You were fine up to there. A denial of certiorari is no more a "verdict" than a ruling is. Less so actually. It doesn't mean anything, legally speaking. It does not prejudice later cases, one way or the other.
But you knew that. Or should have.
The denials don't even mean that the Court agreed on the "standing" issue, let alone the core issue of eligibility.
The mother of Marie Elg acquired United States citzenship under the auspices of the Expatriation Act of 1907. Her citizenship was derived from that of her husband. This was the case until the ratification of the 19th Amendment.
This is why Ms. Elg’s parents were both termed naturalized in the factual findings of the decision that you cited.
http://publishing.cdlib.org/ucpressebooks/view?docId=ft0g500376;chunk.id=0;doc.view=print
The U.S. Department of State Foreign Affairs manual affirms that idea more than anything else for me. It states that while a person born abroad to two U.S. citizen parents is a citizen at birth (non-naturalized) that he or she may not be a natural born citizen according to the Constitution and therefore eligible for the presidency. They specifically make the point that the courts have never ruled definitely on the issue.
A natural born citizen is a native born citizen, Mr. Rogers. And, both are citizens. The terms can be used interchangeably in certain contexts because the meanings of the terms overlap, much as the definition of a rectangle and a square overlap.
A square is a rectangle, and so it can be correctly called a rectangle. But, a rectangle isn't always a square. Likewise, a citizen isn't always a native born citizen, and a native born citizen isn't always a natural born one.
As far as making reference to her parents' citizenship, they most certainly did make such reference. Again, you provided the cite of factual findings from the decision yourself.
First, I am an attorney, but I don't pretend (unlike a lot of attorneys) to be a constitutional scholar. A year ago, really when I first began thinking about this issue, as my recent retirement gave me some free-time, I presumed - from my own academic and legal education, but not from professional experience - that to qualify as natural-born, you did indeed need two parents who were citizens. But, as I actually began to read the relevant case law, my understanding evolved.
Solum himself, makes a clarification to his own paper from it's original publication in the Michigan Law review, and has amended his paper to reflect his clarification. He plainly says now, that it only takes a single citizen-parent and jus soli to effect natural-born citizenship. Solum cites his revision in the first few pages' footnotes.
I think, at best, the matter is plainly undecided and subject to debate. Of that, I don't believe that there can be any argument. While the Court has issued opinions that could be interpreted that it's settled law, such interpretation would be defective, as the court has only discussed this issue in dicta; It's never been part of the legal holding of any decision the Court has rendered.
For me personally, I value Solum's opinion. I wouldn't say that I know him personally, but I have heard him lecture several times, and I've read most of his scholarly work. He is an originalist. If he thinks it's one citizen-parent and jus soli, I find that compelling. Of course, you - like anyone - are free to ignore Solum's opinion, because that's just what it is, an opinion. But, I do believe it's probably reflective of the positions of the other originalists who actually serve on the contemporary court.
Lastly, I wouldn't characterize Solum's opinion as a liberal one, or one that embodies a "living Constitution". If you have some time, read or listen to, as it's available on Oyez, the oral argument in Tuan Anh Nguyen v. INS. It's enlightening because while that case isn't about NBC, the justices do discuss it peripheral way when exploring Ahn with litigant's advocates. Ruth buzzie, in embracing a position I would characterize as liberal, thinks her grand-son, who was born in France to just a single citizen-parent, can be President (she actually says VP). Scalia disagrees - and while he doesn't take issue with just one citizen-parent, he does state that he believes jus soli is a requisite component for NBC.
Steven's notes - to some laughter in the courtroom - that...
"Of course the interesting thing about that provision, it requires that he be natural born at the time of the adoption of the Constitution.He's right. That is what it literally says because they inserted an extra and unneeded comma.That's what it literally says.
Again, it's not a binding decision, it's just an interest aside that may tip the hands of the justices with respect to where they might side in this issue.
Which is why I added...
Denial of cert shouldn't necessarily be taken as an endorsement of the lower court's decision."
Of course, you knew that, or should have.
The Constitution does not say that you can be president if you have a likelihood to hold allegiance to the US. It says you have to be a NBC. Marie is legally qualified, Obama is probably not. (More evidence is required). Even if you showed Obama as being the most loyal, America-loving person out there, if he is not a NBC, you could still not make him President without changing the Constitution. We are still bound to the law. The constitution is there to protect us. It's not fool proof, but it probably works most of the time.
I agree with you that the NBC clause was written to make sure that the person in office's primary allegiance was to the US, but I still say Marie probably has the stronger claim based in law. NBC status is not a guarantee of loyalty. I'm sure that there are NBCs out there who are not loyal to the US. But people are less likely to betray a people to whom they are bound by blood and where their family is. Its not fool proof, but it mitigates the risk of treachery significantly, and is why it was put into the US Constitution. Yeah, Marie's situation is odd and her loyalty may be questioned, but legally how can you dispute her NBC status? She never renounced her citizenship as far as I am aware, and I don't know if she ever took up Swedish Citizenship.
Obama has split loyalties from the get go. We don't even know if his mother ever renounced her US citizenship or not. She did marry and Indonesian and may have renounced her citizenship in the process. Who knows? The question is therefore, is not who is most likely to be loyal to the US, Marie or Obama. The question is which one is an NBC. Marie was ruled in a court of law to be NBC, Obama never has been.
Well of *course* Solum has gone back and put an addendum on his own musings regarding the eligibility of John McCain. Can’t have inadvertant inference to the equally questionable Obama, now can we?
I much prefer Gabriel Chin on this matter, personally. At least he’s consistent.
http://www.law.arizona.edu/news/Press/2008/Chin071008.pdf
Thanks for the link. It’s amazing how complicated citizenship laws can become, isn’t it? Every time a new generation’s idea of citizenship changes, and is enacted into law, it contradicts previous laws/ideas of citizenship. Consequently, it makes the issue of understanding the intent of the previous laws harder, since the new laws don’t make the same presumptions as the older ones, and you can have contradicting opinions going on simultaneously.
I don't find it annoying for those who think the birth issue is a non-issue parrying with those who do. It just forces those who believe that there may be an issue of some sort, I am included, to hone their arguments/research that much more, keeping a lot of junk out of the discussions.
I don't see any distinction between what Chin posits and what Solum said then, or now with respect to Obama's particular circumstance.
With respect to McCain, I'm also not so sure that Scalia wouldn't have agreed with Chin, had such a case been brought to the Court, presuming it was brought by the appropriate litigant. It probably all would have rested entirely on where McCain was specifically born - inside the Zone, or just outside of it. But, Scalia seems FIRMLY entrenched in the jus soli stipulation, as does Breyer, interestingly.
I would end with a clarification of my own. If, by some incredible turn of events, it can be proven by a preponderance of the evidence that Obama really wasn't born in HI, but on some foreign soil, I don't think any intellectually compelling argument can be made that he's a NBC, and depending on the actual age of his mother, he may not even be a citizen at all.
I don't believe they did. Certainly they did not do so explicitly. In the case of "Elg" the words "natural born" came from the lower court decision, although the Supreme Court did agree with it. So it's hard to see where the Supreme Court declared the two terms "native born" and "natural born" to be equivalent. The much older 1875 Steinkauler's case was an Attorney General's opinion, not a Supreme Court decision.
But one problem is that the meanings of words and phrases change. "native born" and "natural born" were once used interchangeably, but they meant what "natural born" meant when the Constitution was written. Evidence?:
Well the 1793 translation of "Law of Nations" says:
The natives, or natural-born citizens, are those born in the country, of parents who are citizens.. But the definition of "native" or native born has drifted. It now is understood as "born in the country", depending on context. (or if you don't like the 1793 translation of Vattel. How about the earlier one, which was included in the Supreme Court decision in 12 U.S. (8 Cranch) 253
The natives or indigenous are those born in the country of parents who are citizens Thus "natives" in 1814 at least, meant "born in the country of parents who are citizens" to the US Supreme Court.
Further complications or confusions arise because (almost all) natural born citizens are native born (modern usage) as well. The cases indicated turned on the citizenship of the individuals, not on whether they were natural born. Although Elg and Stienkauler were. Ark was not, but he was a 14th amendment "native born" (modern usage) citizen.
That' not entirely clear. The Constitution says:
Section. 4. The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.
So to say the Congress could remove an ineligible occupant of the office, is to say that an ineligible person can, under the Constitution, *be* President. A logical impossibility.
I don't think the framers considered the possibility that an ineligible person would successfully manage to usurp the office of President. Thus they did not provide for the possibility.
If the electors were individually selected, ether directly by the people of the states, or by the legislatures of the states, rather than being appointed by "political parties" (something else the Constitution does not contemplate) and then elected without the people who voted for them even knowing their names, it likely would not have occurred. In fact such was an argument for the system as it existed. The electors would be known to the people who selected them, and they in turn would have more individual knowledge of the potential Presidents.
A naturalized person is an immigrant who comes to America and goes thru the process to become a citizen, as her father did. He completed the process one year before her birth. Because her mother never became a US citizen, but her father did, and she was born in the US, she became a naturalized citizen by the merits of her father. Had her mother also become naturalized, she would be Natural Born, as a citizen born on US Soil to two citizens (Jus Soli).
Ark was never granted Natural Born Status, rather naturalized citizenship.
The fact that Elk interchanged the two did not translate to US law. The distinction is clear. Nobody denies that she would have citizenship status.
Obama’s father was not a US citizen, ever. His mother was not back in the US long enough to confer Naturalized status to Barak Obama II, therefore, he is not Natural Born, and I believe he is not a US Citizen at all. This is just my opinion. He could produce evidence that shows something unexpected. But from what we know, I think he is an Illegal Alien.
Steinkauler's father, was a Citizen at the time of his birth. So was Elg's. Both were naturalized, but they were citizens.
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