Birthers and Perkins V Elg

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 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.

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.

"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.

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."

"First. On her birth in New York, the plaintiff became a citizen of the United States. Civil Rights Act of 1866,

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.

"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".

"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".

"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."

Yes, that's what he says in the footnote. But, in the paper's second paragraph of the first page under the section titled: I. INTRODUCTION: THE ENIGMA OF THE NATURAL BORN CITIZEN CLAUSE, Solum says this...

"What is the legal significance of what we can call “the natural born citizen clause”? There is general agreement on the core of settled meaning.2 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.”
emphasis added

I left the footnote anotations in to prove that this paragraph is found in the body of the paper, not the footnotes. In any event, compare that with my statement...

"He plainly says now, that it only takes a single citizen-parent and jus soli to effect natural-born citizenship"

The language is clear to anyone who isn't a birther, looking to parse every comma, apostrophe and colon to find support for their belief (I use the word "belief", because that's what is is, something more closely resembling a religion, than intellectual exploration), or to impeach the statements of others. It's ridiculous.

Neither does Vittal...

May I remind you that both the court’s and Vittals Native Born means Born to Natives....ie citizens,

To Vittal Native Born and Natural Born are the same person ie. Born in the country to 2 Citizens.....don’t believe me? Read Vittals Law of Nations.....

212. Citizens and natives.”.....The natives, or natural-born citizens, are those born in the country, of parents who are citizens......”

While you use the term native as merely jus solis, born in country with any referance to parentage....

quite a difference between your idea of a Native, and both the Court’s and Vittal’s usage of the term.........

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.

Yes, his mom did give him a blood connection to the US. Even if you want to argue that Obama has a closer connection to his mom than his dad, it still doesn't make him a NBC.

Marie had no relatives here, while Obama had mother and grandparents, and his grandparents raised him.

The Constitution doesn't say that being raised by your grandparents makes you an NBC. So this discussion of loyalties is kind of an irrelevant side argument to what the law actually says. NBC is not proof of loyalty to the US, just an insurance policy to protect the US from a serious possibility of foreign influence. Marie's situation is still NBC, but provides a loophole around the intent of NBC clause. She still is NBC.

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.

Yeah, that is probably the closest that the Supreme Court has ever broached the topic of Natural Born citizen status and is currently the established precedent. However, it is difficult to discuss the relevance of Wong Kim Ark when we don't know where Obama was born yet. Once his place of birth can be established, the Wong Kim Ark argument would be a little more persuasive, if you accept the premise that it was decided correctly of course. However, if Obama ever lost his US Citizenship or voluntarily took up another citizenship voluntarily, then there's going to be a problem.

View the matter through the perspective of international relations. A President encumbered with claims of jurisdiction by another nation is not entirely free to operate in the sole best interests of this nation, in treaty negotiations or in times of war. We're talking about the Commander-in-Chief of the military, after all. Recall Jay's hint to Washington. What role was his specific concern, regarding foreigners? It was the Commander-in-Chief of the military. International, not domestic.

So, the divided loyalty argument is not so much pertaining to thoughts in the mind of a President, as it is a matter of law between nations. The Founders sought to avoid such entanglements and intrigues, and legally structured eligibility to office in the executive branch in such a way as to preclude them legally, which was the only means at their disposal.

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.

To be fair, that is not what they say. The say that the natural born citizen language does not appear in the English translations until the 1793 (sometimes they say the 1797 edition which was just a cleanup of the 1793 translation), However I have not seen any but the first, 1760, translation and the 1793/7 one, so I cannot say for certain.

But it also doesn't matter, enough of the founders could read and speak French, and didn't need the translation. The 1793 translation is clearly the more representative one. The earlier ones did not even translate "indigenes" and translated "naturels" as natives, whereas the better translation is "natural ones" for naturels and "natives" for "indigenes".

There clearly were pre Constitutional Convention translations, the first seems to have been in 1759 and 1760 (different volumes) Since that was right after the French original was published, it was clearly a "quick and dirty" translation.

It's not entirely clear if the Dumas edition, which Franklin thanked Dumas for sending in a letter dated December 19, 1775.

...

Oh, in looking up Dumas Franklin and Vattel, I find that what Dumas sent to Franklin was an edition in French. Thus the founders had access to Vattel, and Franklin along with many of the other founders, could certainly read and write in French. So even if they did have an earlier English translation, which they very likely did, they didn't need one either.

John Jay seems to have made the first recorded use of the term, in a letter to G. Washington, that the Commander in Chief of the American Army be required to be a Natural Born Citizen. Jay was Secretary for foreign affairs under the articles of confederation, 1784 to 1789. French was the language of international diplomacy (a fact which lingers on in the Olympics where announcement are made in French). Jay's grandfather was a French Protestant. John Jay was educated at King's College, now Columbia, in New York. he was part of the delegation, along with Franklin and Adams, that negotiated the treaty of Paris, which ended the revolution. At least in part, it was a 3 way negotiation, with France as the 3rd party. I expect he was fluent in French as well.

As an aside, shortly before Jay's letter to Washington, Hamilton had submitted a draft Constitution. The relevant part of it read:

No person shall be eligible to the office of President of the United States unless he be now a Citizen of one of the States, or hereafter be born a Citizen of the United States

Jay suggested to Washington:

Permit me to hint whether it would not be wise and seasonable to provide a strong check to the admission of Foreigners into the administration of our national Government, and to declare expressly that the Command in Chief of the American army shall not be given to nor devolve on, any but a natural born Citizen

Thus the founders expressly rejectged the "born a citizen" language in favor of the "Natural born citizen" language. if they meant the same thing, why change it? Since there were no laws making persons born outside the country citizens, we can eliminate the statutory citizen at birth possibility, which leaves only the "born in the country" type of citizen. That would be included in the Hamiliton language, so "natural born citizen" must mean more than that. The only thing left would be those born in the country to citizen parents, or at least a citizen father.

A few facts to consider:
Marie’s parents were both U.S. citizens (naturalized) at the time of her birth even though they later went back to Sweden. She was a Natural Born citizen.
obama place of birth has not yet been certified by documents. Regardless if he was born in Hawaii ,with only one American born parent he is a Native born Naturalized citizen( Elk and Ark cases U.S. Supreme court). A native born citizen is not born with full alligiance to the U.S. and thus NOT a Natural Born citizen and eligible to be President. There is no question what our founding fathers meant by Natural Born citizens ( both parents U.S. citizens) and this has been upheld by the Supreme Court a number of times already.Example Minor vs. Happensett the Supreme court said that children born to PARENTS that were citizens were Natural Born. This issue was rised prior to obama taking office but the democratic leadership in Congress blocked the hearings that were requested. For obama to legally be president it would be necessary to pass a constitutional amendment to remove Article 2( natural born citizen clause) from the Constitution. Do you think It’s fair to “overlook “ the constitution so that obama can be the legal president of the U.S.

The Supreme court will probley never review this case as they would have to uphold the original intent of the founding fathers CHILDREN OF CITIZENS SHALL BE CONSIDERED NATURAL BORN, and of course previously decisions by the Supreme court CHILDREN WHOS PARENTS WERE U.S. CITIZENS ARE NATURAL BORN. Botton line ,BOTH parents must be U.S. citizens at the time of a child’s birth to be considered Natural Born. By law this issue is supposed to be settled by Congress, when a politican is found to be ineligible to hold a office under District of columbia code 3501 that persons election is required to be voided. All votes for the person would be void and the “runner up” would be given the office. Of course congress knew in advance that obama was not elgible but ignored the Constitution and installed him as “president” A little question of Treason!

But, in the paper's second paragraph of the first page under the section titled

You are correct, having the read the orginal first it was easy for me to miss the deletion of a single character "s" and addition of a single character word "a" in the relevant passages.

But ask yourself, why did he make those two "minor" changes? Did he change his mind? In 2008 he said:

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.”

Then somewhere along the line he changed it to.

it is beyond dispute that anyone born on American soil with an American parent is a “natural born citizen.

If there was "general" agreement in 2008, why did that change to something different being "beyond dispute?"

It seems, to me anyway, that this University of Illinois Associate Dean is kind of blowing with the political winds.

It has been a long time since I weighed in on this subject. Apart from the damage that has been done in certain ways, I find it absolutely fascinating. For there is a tremendous duel of wits here. Not only that, but the careful information and indeed scholarship shown, is a credit to the various posters. Obviously there is some anger and disappointment over a final resolution that is lacking.

Each person does have a theory and I wish to give one that will not win me many friends. It could be that such a long form does not exist. If the now president was not born in a hospital and elsewhere, I believe it would be incumbent on the mother or relatives etc to attend the record offices. Supposing Stanley Ann Dunham did not immediately inform the authorities. She might have done this when she divorced the father three years later. As was done by various people, they gained a COLB long after the claim of actual birth.

Now the political backers of Barack Hussein Obama, would not wish to risk any delay in ratifying the nomination of their man. For without the long form, persons opposed to him could delay his nomination. This until such times as there was a resolution. A resolution that may have engaged either the Congress or the courts. Any delay would have possibly put Hilary Rodham Clinton up front and center as the nominee.

True this is only a theory. Stanley Ann Dunham Obama would not have been alive to testify, nor Barack Hussein Obama Sr. A long form may not exist, at least not in the style that we have been shown.

I can leave arguing this to death to others, but in neither case cited was NBC status relevant. That’s not what the cases were about. The one and only place NBC becomes relevant is with the presidency.

What is troublesome to me is that we are so far out now from the days of this country’s founding that we can’t seem to grasp just how extraordinary that founding was. How extraordinary the form of government established. Everything about it. And 2 centuries later we take it all for granted. We take our citizenship for granted if we were blessed to be born here. In that sense, I’ll take an immigrant who came here legally over many native-borns. Just not for my president.

Since the US was so different from all else then known, it was imperative to the Founders to get it right, or as right as they could. 200+ years out there have been 17 Amendments not counting the Bill of Rights. Not a bad reflection on their work.

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