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
And why was it noted that:
Modified and affirmed.
MR. JUSTICE DOUGLAS took no part in the consideration and decision of this case.
Native Jus Soli (right of soil)
Natural Jus Soli & Jus Sanguinis (right of soil and right of blood)
Again - my opinion, but I do believe this was the intent of the Natural born clause as it is placed on the President and Vice President only.
One doesn't take Article II of the Constitution lightly.
To override the decision by the people as accepted by Congress would require an "open/shut" case
What has greater authority: Presidential elections themselves or the Constitution that provides for those Presidential elections -- and the qualifications thereof???
Please note they consider native born citizen and natural born citizen to be equivalent, and a native born citizen allowed to run for President.
And no one I’ve seen yet denies that Obama is a native born citizen IF he was born in Hawaii.
Also, if Marie’s birth allows her to retain loyalty to the US even after she is taken back to Sweden at 4, and both parents reject US citizenship (mother by default, father by affirmation), then I suspect - again, I’m not a lawyer - the Supreme Court would rule Obama retained full allegiance by birth in the USA.
Also, please note that for the purposes of argument, I’d be content if others would allow that my opinions are based on reading and thinking, and not based on my presumed hatred for America and traitorous thoughts.
I’d be happy if birthers and non-birthers on FR could disagree without rancor or assumption that non-birthers are traitors to their country.
You must not have been paying attention. I and everyone on my ping list have been called traitors and much, much worse by birthers.
I do also believe that since all records are sealed that there possibly was a conflict of his citizenship - Possibly he applied for an Indonesian passport after the age of 18 which would in fact nullify his natural born status. I also believe that he applied for foreign aid which also would be a problem for him.
I believe he has problems which is why everything was sealed. Why in the world would only his kindergarten records be missing from Hawaii? Why would he state on his Bar exam that he held no other name - Soetoro comes to mind?
He is illegal in my mind and I do appreciate you believing that he has no honor!
Except in cases where original jurisdiction applies, the Supreme Court doesn't hold hearings, nor does it issue "verdicts", this is the role of the trial court, known usually as the District Court in the federal system. Primarily, SCOTUS is the final appellate court in the country and it reviews the decisions of lower courts. The Court never finds anyone guilty or innocent (as it is NEVER the court of original jurisdiction in a criminal matters), but it will vacate those findings of a lower court, if the Court finds some Constitutional or other legal infirmity in the lower court's application of US law.
As for you excepting "whatever verdict", I'm dubious as the Supreme Court has already issued several (your word) "verdicts" when they have refused plaintiff's petition for certiorari.
Denial of cert shouldn't necessarily be taken as an endorsement of the lower court's decision. But, I would point out that while the Court has denied cert in every "birther" case that it's come across, it did grant cert for Anna Nicole Smith and her contested inheritance case of her late husband. That should be enlightening.
I disagree withe 3A of your statement. She was never called Natural Born. Naturalized, I can understand, her father deferred citizenship to her by virture of naturalization one year before her birth. The fact that he denounced his citizenship after her birth, does not remove her dual citizenship right, unless she renounces her citizenship personally after the age of consent. which she did not do.
Obama is a whole nuther kettle of fish. His father was never a US citizen. We have no evidence of where he was born, and it is not forthcoming. His mother, a US citizen, was not in the US long enough before Obamas birth to defer citizenship either.
In the end, Obama’s father is not a US Citizen, and never became one Before obamas birth or at any time in his life.
Obama is NOT a Natural Born Citizen, and until evidence is provided, has not even proven he is a naturalized citizen IMO.
I think your opinion is a valid interpretation.
I think mine is as well.
I also think the US Supreme Court SHOULD have taken the case in Dec 2008 and issued a written ruling on how they interpret “natural born citizen” - BEFORE Obama took office.
Had they found him ineligible, the Congress could have sworn in Biden and he could have picked a new VP. To do so now would be far more disruptive, and I don’t think the Court will touch this case unless forced.
And the only way I see to force the issue would be for a state to determine that NBC means born to two US citizens, and therefor pass a law stating that they will not accept a candidate on their ballot who lacks 2 US citizen parents.
THAT ought to force a US Supreme Court case!
Maries father was naturalized before her birth, therefor she has a claim for NBC if her mother was a citizen. Refer to Vattels for NBC, sometimes courts make bad decisions which can be over turned. There are a lot of questions and bo was counting on that.
It's irrelevant where they were born, or, if after giving birth to their daughter, they rejected their citizenship. They were both naturalized U.S. citizens at the time of her birth on American soil, therefore she is a "natural born citizen" by long-time Vattel definition.
And of course the old addage applies -- difficult cases make bad precedent.
I agree and I hope. Thanks for your input!
Not only have I been called a traitor, but I’ve been told that my two oldest kids who served in the military (both with tours in Iraq) should be ashamed of their father - who also served in the US Air Force for 25+ years (including Iraq and Afghanistan), and whose father served in the military for 27 (including WW2, Korea and dying in Vietnam).
That happened within hours of my first post (in 11 years) on a birther thread, saying that LTC Lakin would lose his case in a court-martial.
I’ve also given in to emotion, but it is easy to do when attacked in a very personal manner. One of my reasons for posting this thread is to try to remove some of the venom, and let folks honorably disagree with each other.
I disagree with birthers posting here on FR. I confess I hate many Democrats, whom I consider to truly be America-hating traitors, and that includes Obama. If that is harmful to my soul, then may God forgive me.
This sentence doesn't make sense. She was never naturalized (and her father's US citizenship status is immaterial) because she was born on US soil. She acquired US citizenship through jus soli, or so was held in Ark.
As for native born vs. natural-born, Elk uses these two statements interchangeably and in the dicta of the decision, the majority opinion makes mention of the fact that they're interchangeable phrases. I would cut & paste that particular line, but I'm on a iPhone and it's just too darn hard. But, if you read the entire decision, it's in there.
Can you show me the exact words of the Court saying this????
And if this is/was so, then why did they consider the citizenship status of the parents at the time of her birth in this case???
I have thought about this quite a bit. IMHO, all that would need to happen is for a state Secretary of State to deny Obama (or anyone else) ballot access because of the citizenship status (or lack thereof) of his father. Obama would sue - in state court - to obtain ballot access. Presuming that the SOS prevails (which is a big presumption) through all the lower courts and onto the state's Supreme Court, then that state Supreme Court final ruling would be subject to review by SCOTUS.
For the first time in over 230 years, you would have SCOTUS finally defining "natural-born", probably.
Can you show me the exact words of the Court saying this????
-------------------------------------------------
They quote with approval the following:
"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."
"And if this is/was so, then why did they consider the citizenship status of the parents at the time of her birth in this case???"
I don't think they did consider her parents citizenship status. They say she is a citizen regardless of the citizenship of her parents (which we all agree is true).
But they also say, "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..."
So they equate her native born citizenship (which I think we all agree is citizenship based on birth in the US) with natural born citizenship. The government thought she had lost native born status, but the Court found the lower court had correctly said she retained NBC.
This was either sloppy writing, or the court considered them to be the same thing.
Obviously, the Supreme Court could reject this reading of mine and rule that 2 citizen parents are required. I just think it is unlikely they would do so, and that courts have just reason for concluding that precedent by the Supreme Court means a native born citizen is also a natural born citizen.
FWIW - my personal opinion of how it SHOULD be is in agreement with yours - I think it OUGHT to mean born of two US parents. I just think the Courts will disagree with me, and thus with you as well.
And my point is that we should focus on winning elections rather than encourage more court cases, UNLESS we can make it a court case the US Courts would HAVE to rule on. And even then, I'd bet the odds would be heavily in favor of Obama winning...
I do not find you to be a traitor. You have your opinion based on how you interpret what you have read. We all interpret differently and unfortunately, we can not be the determining factor on what is and isn’t the intent of our founders when it comes to this clause.
I only hope that one day the decision will be made. For the benefit of our country, it better be a good and just decision!
I do have to say this has been an eye opener for many and it has forced us to all learn about our Constitution which they do not even teach in our schools any longer. I remember having to recite the Declaration of Independence (I believe it was in 5th grade). I was extremely proud to have accomplished it, but I was not happy to do it at the time. I now wish they continued this to this day. My 3 kids did not partake in any reading of the Constitution, Bill of rights, Declaration, seats of Congress or the 3 branches of government and why they are there, which we all had to know as well. I’ve had to teach them all this which is fine, but I do believe this should be introduced in school.
Bingo!
Both Citizen (regular) and Natural Born Citizen are mentioned. The only regular citizens who are qualified to run for president were those who were citizens at the time the Constitution was adopted. Natural Born Citizen does not equal regular citizen.
0bama may be a regular citizen, born in this country, even as naturalized citizens and anchor babies have been deemed regular citizens. But none of those meets the standard set by the founders in the Constitution of natural born citizen. None of those are qualified to be president. That will be 0bama's downfall.
Do you believe the Court erred in equating native born citizen with natural born citizen?
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