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
This is, in part, the central legal holding of US v. Wong Kim Ark...
"The evident intention, and the necessary effect, of the submission of this case to the decision of the court upon the facts agreed by the parties were to present for determination the single question stated at the beginning of this opinion, namely, whether a child born in the United States, of parent of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States. For the reasons above stated, this court is of opinion that the question must be answered in the affirmative.
Do you see the word "naturalized" anywhere in there? Of course you don't. The majority opinion in Ark held that he was a citizen at birth.
People can debate until the cows come home about the distinction between citizen at birth and natural born citizen. Many will argue it's a distinction with no legal difference, other will argue to the contrary. But nowhere in Ark does the majority hold that Ark is a naturalized citizen, nor is anyone else who is born on US soil while subject to the jurisdiction thereof. They are citizens at birth, irrespective of their parent's citizenship status. That is the import of Ark with respect the 14th Amendment on an individual's citizenship status.
“But people are less likely to betray a people to whom they are bound by blood and where their family is.”
Hmmm...Barry had a bond of blood thru his mother. I don’t see much reason for a bond thru someone who didn’t live with your mother, didn’t live with you, and left both of you by the time you could talk.
Marie had no relatives here, while Obama had mother and grandparents, and his grandparents raised him.
“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?”
She divorced in Hawaii. Since her husband was Indonesian, the court would have no jurisdiction unless she was an American. Nor has anyone produced any evidence that she renounced her citizenship, and she lived in the US for some time.
“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.”
From Indiana’s Court:
The Wong Kim Ark Court explained:
The fundamental principle of the common law with regard to English nationality was birth within the allegiance-also called ‘ligealty’, ‘obedience’, ‘faith’, or ‘power’ - of the king. The principle embraced all persons born within the king’s allegiance, and subject to his protection. Such allegiance and protection were mutual,-as expressed in the maxim, ‘Protectio trahit subjectionem, et subjectio protectionem’,- and were not restricted to natural-born subjects and naturalized subjects, or to those who had taken an oath of allegiance; but were predicable of aliens in amity, so long as they were within the kingdom.
Children, born in England, of such aliens, were therefore natural-born subjects. But the children, born within the realm, of foreign ambassadors, or the children of alien enemies, born during and within their hostile occupation of part of the king’s dominions, were not natural-born subjects, because not born within the allegiance, the obedience, or the power, or, as would be said at this day, within the jurisdiction, of the king.”
For their definition of NBC, they don’t refer to Vattel but common law. Some are unconvinced by that reasoning. I find it completely reasonable, and think other courts will take the approach the Indiana Court did.
“The fact that Elk interchanged the two did not translate to US law. The distinction is clear.”
It doesn’t seem to have been clear to the Court. They seem to think them interchangeable - citizen by birth, native born citizen, and natural born citizen.
Other examples:
“All 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. There are two exceptions, and only two, to the universality of its application. The children of ambassadors are in theory born in the allegiance of the powers the ambassadors represent, and slaves, in legal contemplation, are property, and not persons.”
Justice Swayne, United States v. Rhodes, 1 Abbott, US 28 (Cir. Ct. Ky 1866)
“By the terms of the Constitution he must have been a citizen of the United States for nine years before he could take a seat here, and seven years before he could take a seat in the other House ; and, in order to be President of the United States, a person must be a native-born citizen. It is the common law of this country, and of all countries, and it was unnecessary to incorporate it in the Constitution, that a person is a citizen of the country in which he is born….I read from Paschal’s Annotated Consitutution, note 274: “All 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. There are two exceptions, and only two, to the universality of its application. The children of ambassadors are, in theory, born in the allegiance of the powers the ambassadors represent, and slaves, in legal contemplation, are property, and not persons.”
Sen. Trumbull (author or the Civil Rights Act of 1866), April 11, 1871, Cong. Globe. 1st Session, 42nd Congress, pt. 1, pg. 575 (1872)
“Under the longstanding English common-law principle of jus soli, persons born within the territory of the sovereign (other than children of enemy aliens or foreign diplomats) are citizens from birth. Thus, those persons born within the United States are “natural born citizens” and eligible to be President. Much less certain, however, is whether children born abroad of United States citizens are “natural born citizens” eligible to serve as President …”In United States v. Wong Kim Ark (1898), the Supreme Court relied on English common law regarding jus soli to inform the meaning of “citizen” in the Fourteenth Amendment as well as the natural-born-citizenship requirement of Article II, and noted that any right to citizenship through jus sanguinis was available only by statute, and not through the Constitution. ”
Edwin Meese, et al, THE HERITAGE GUIDE TO THE CONSTITUTION (2005)
“Native: A natural-born subject or citizen; a citizen by birth; one who owes his domicile or citizenship to the fact of his birth within the country referred to.”
Black’s Law Dictionary 6th Addition (1994).
The point of those quotes is not to show total authority for my NBC interpretation, but to show reasonable doubt in Vattel’s definition - and a reasonable doubt would be all a court needs to stay away from removing Obama. Truth is, I suspect ANY doubt would suffice for a court to refuse to go there...
BTW - thanks to all for the polite discussion here. I learn more from people who explain instead of accuse.
I don't know the year they were married, but I do know that it was well before 1922.
My grandfather was naturalized after my mother was born.
I know my grandmother wasn't a citizen. There was a period of time when she would have to register yearly as a legal resident.
Where does he "posit" this? Oh, never mind I see it now, it's in a footnote, where he corrects "misreadings" from an earlier version of the paper. The version of the paper with that footnote is not from "a few years ago" but rather is clearly labeled "D R A F T April 18, 2010", mere days ago, less than a week ago. What he wrote a few years ago, well in 2008, since the original was written for a symposium about McCain's eligibility, was:
There is general agreement on the core of its meaning. Anyone born on American soil whose parents are citizens of the United States is a “natural born citizen.” Anyone whose citizenship is acquired after birth as a result of naturalization is not a natural born citizen.
What the current version says is:
As a matter of inclusion, it is beyond dispute that anyone born on American soil with an American parent is a “natural born citizen.”3 As a matter of exclusion, anyone whose citizenship is acquired after birth as a result of “naturalization” is not a “natural born citizen.” But agreement on these paradigm cases of inclusion and exclusion does not entail that the clause has a clear meaning. The clause becomes enigmatic once we focus on persons who are born outside the territory of the United States to parents who are American citizens
The footnote reads:
In an earlier version of this article, I used the phrase “whose parents are citizens of the United States.” Some readers have misread the original as implying that someone born of only one American parent on American soil is not a “natural born citizen.” That reading ignores the context of the original sentence, which was meant to provide a case where “natural born citizen” status was indisputable. The sentence did not provide criteria for clear cases of exclusion, which were provided by the very next sentence. Based on my reading of the historical sources, there is no credible case that a person born on American soil with one American parent was clearly not a “natural born citizen.” Indeed, the conventional view is that almost anyone born on American soil would be a natural born citizen: limited exceptions may have existed for the children of foreign Ambassadors, for the children of slaves, and perhaps others. This article does not address the question whether the conventional view is correct.
In the body of either version, the question of a person born on US soil, with a single US citizen parent, and one alien parent, is not analyzed at all.
You sir, are guilty of gross misrepresentation. Did you think no one would actually read the articles in question?
I think, for whatever reason, the Good Professor failed to consider his words in light of the parentage issues of the Democratic nominee. So he needed to make this clarification.
I guess there was no symposium to Consider the eligibility of Barack H. Obama. Now why would that be?
I agree totally about Obama’s past...no proof of anything...and that is proof enough that there is something to hide.
Not really. From memory as I don't have immediate availability to PDF, I'm pretty confident that the edited paper includes the statement about natural-born in the first page or two, perhaps in the first paragraph or two in the body of the paper, not the footnote. With respect to the footnote explaining why the clarification and edited was inserted, it was found just where I said to look. Imagine that?
"The version of the paper with that footnote is not from "a few years ago" but rather is clearly labeled "D R A F T April 18, 2010", mere days ago, less than a week ago."
I don't have access to PDF where I am, so I'll have to take you at your word about the "draft" date. But, I clearly said that Solum published his work several years ago, and has subsequently amended it, didn't I?
"You sir, are guilty of gross misrepresentation. Did you think no one would actually read the articles in question? "
Only in your mind Gato, you're very peculiar mind. Where do I misrepresent or mischaracterize ANYTHING that Solum said?
"Did you think no one would actually read the articles in question?"
Right, I told people precisely where to find the paper and where the relevant footnote was located because I expected people NOT to look for it themselves. That's what people do who are trying to hide information. /s - apparently, that's how conspiracy theorists think, apparently.
I believe I even made mention of the fact that I couldn't copy & paste it because of the limitations of my internet device, no PDF capability. "I think, for whatever reason, the Good Professor failed to consider his words in light of the parentage issues of the Democratic nominee. So he needed to make this clarification. "
No, I think the good professor got tired of people taking a single sentence from his rather lengthy and scholarly work to support their assertions, ones which Solum clearly disagrees. "I guess there was no symposium to Consider the eligibility of Barack H. Obama. Now why would that be? "
Because the conventional wisdom amongst any constitutional scholar and attorney of any repute, is anyone who is born on American soil subject to the jurisdiction thereof, is a natural-born citizen. It's only conspiracy theorist who base their opinions on the musing of internet bloggers, is this an issue. That's the fact of the matter.
They were pretty free with commas in those days. Commas are not necessarily grammatical, changing the meaning of the words, they can just be pauses, to catch your breath so to speak. Consider the extra, non-grammatical, commas in the Second Amendment, well in some versions of it. The copy retained by Congress has the commas, but the versions sent to at least some states, and the version in the Congressional Statutes at Large from the first Congress, only had the one comma between "State" and "the right".
Date posted: May 08, 2008 ; Last revised: February 23, 2009
I suspect that if you're seeing a "draft date" different than "February 23, 2009" appear on your downloaded copy, it's a function of the server you've selected and it's relation to how PDF reads the actual "file creation date" for that PDF file on that particular server - IOW, when was the file actually saved to the server itself, rather the a reflection of Dr. Solum's actual revision date.
I also suspect that if you selected one of the alternate server sites which are available on that page, (I usually use Stanford's, which is shaded and is found on the far right) you will see an entirely different "draft date".
A Reader's Guide to Semantic Originalism and a Reply to Professor Griffin
And there you have clear indication yet again that the legal case for Obama’s eligibility rests upon semantic originalism regarding the difference between native born and natural born. You recall the fairly elaborate statement regarding Obama being native born from early in the campaign, I’m sure. Elaborate pains were taken to echo Constitutional language, but stopped short of natural born, which was not claimed.
Solum obfuscates and prattles about inclusivity with his cute and very recent little addendum. The natural born citizenship requirement was exclusive, not inclusive. To the extent that one citizen parent was even contemplated, that citizen was clearly the father, from whom citizenship naturally descended. No need to cite the source for that, as you’ve been around these threads as much as I’ve been, and we agree on most points, with the exception of the foreign born due to parents in service to the military and not under the exception made for those in diplomatic service to the nation.
SSRN-Originalism and the Natural Born Citizen Clause by Lawrence Solum
| File name: SSRN-id1591889.pdf ; Size: 175K If you have any problems downloading this paper, ... Lawrence B. Solum University of Illinois College of Law April 18 , 2010 ... Date posted: September 08, 2008 ; Last revised: April 18, 2010 ... http://ssrn.com/abstract%3D1263885 |
Posit:
1. To assume the existence of; postulate. See Synonyms at presume.
2. To put forward, as for consideration or study; suggest:
Since the whole thing about a single citizen parent was in a footnote, and I just checked the first 3 pages again, it was only in footnote 3, which extends across pages 1 and 2, you can hardly say he assumed it as part of his general thesis, nor did he put it forward for discussion, he put it there apparently because there was entirely too much discussion of what he originally wrote.
It forms no part of the body of the scholarly paper. You clearly implied that it was at least a peripheral part of that, or even central to it. You also said "several years ago", implying well before the McCain and Obama eligibility controversies, when even the original version was written *about* the McCain eligibility and for a symposium on just that subject very near the end of the Campaign (September 2008) less than 2 is not several.
No, I think the good professor got tired of people taking a single sentence from his rather lengthy and scholarly work to support their assertions, ones which Solum clearly disagrees.
I included the entire text of the footnote, he doesn't clearly agree or disagree, he wrote:
the conventional view is that almost anyone born on American soil would be a natural born citizen: limited exceptions may have existed for the children of foreign Ambassadors, for the children of slaves, and perhaps others. This article does not address the question whether the conventional view is correct.
A Vattel paragraph in English being quoted by Jay who used the term natural born citizen in his letter to Washington. This was in 1785..Obamabots said there was no English version available teill ten years after the Constitution.
He doesn't say that at all. He says "there is no credible case that a person born on American soil with one American parent was clearly not a “natural born citizen", which is not the same as making a positive statement that such persons are natural born citizens. Neither does he cite any case indicating that they are.
Oh, please, the Draft date is part of the document, not the metadata or file properties. Besides, it's also in the copyright notice which says, in part:
This version of “Originalism and the Natural Born Citizen Clause” was created on April 18, 2010. The Author requests that citations to this version identify the work as a draft and note the date of creation in the citation or parenthetical explanation
Ok. Since the law granting citizenship automatically to the wives of US citizens was changed about 1922, it sounds like your grandfather got naturalized just after the law was changed which prevented the government from automatically granting US Citizenship to your grandmother.
What strikes me is that in both Elg and Steinkauler the fathers had become US citizens before the child’s birth. That is significant, and is not true in Barry’s case. And that has made all the difference.*
*with apologies to Mr. Frost
“Obamabots said there was no English version available teill ten years after the Constitution.”
I’ve said that, and I’m not an Obamabot. It was what I read. When I had more time, I dug into it...there were unauthorized translations within 3 years of the publication, and a formal one a few years after that - well before the Constitutional Convention.
So when I said that, I erred - but it was an honest error. There has been so much Internet discussion on NBC that it is tough to separate the truth from error - and most of us are not experts in the field, but people trying to find out the truth.
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