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".

It was "student note" written by a law student, who doesn't mention the author of the 14th Amendement's own comments on the issue. Nor, the same definition reitterated by founder Ramsay and in the dicta of 5 SCOTUS cases.

She states:

"It is well settled that "native-born" citizens, those born in the United States, qualify as natural born.""

Native born = Natural born? Well settled? Really? Where? When? By whom?

She then states:

"This Note argues that the natural-born citizen clause can only be properly understood if we appreciate the interplay of that clause with the naturalization powers clause of article 1,10 as modified by section one of the Fourteenth Amendment"

Amazing. Really. The definition that the framers knew is "interplayed" with the 14th Amendment and naturalization powers. Wow. Yeah. Sure.

The theory of a law student in 1988 vs. founder Ramsay, the dicta of 5 SCOTUS cases and John Bingham, all reaffirming Vattel's definition. Born in country, to citizen parentS.

Alex, I'll go with the "student note" from the 1988 law student for 500.

Not.

"Despite the pedigree and extensive footnotes, a word search and visual scan of the article finds no reference to Vattel and the extensive knowledge and deep respect for Vattel by the founders and particularly no mention in the article of the footnote referencing Vattel in Farrand"

Goodness. This is why birthers are mocked and ridiculed. It's deserved. You admit that you don't read the piece, but discount its scholarship at the same time. That's rich.

Here's another scholarly work, originally published in the Michigan Law Review - one the the most highly regarded American Law Reviews and written by one of the preeminent authorities on semantic originalism and original intent, Lawerence B Solum. Solum, like Pryor, makes no mention of Vattel with respect to natural-born. Why is that?,

Originalism and the Natural Born Citizen Clause

Birthers are only able to quote miscellaneous internet bloggers who have absolutely ZERO scholarly credentials, ZERO high-profile legal experience, and ZERO authorship of any kind on this subject-matter other than their internet musing. And yet, these are the people that birthers put stock in. It's really unbelievable, and profoundly sad.

Although birthers used the oft quoted phrase (like you did) - ,i>"Vattel and the extensive knowledge and deep respect for Vattel by the founders", not one time have I seen any attributions to a single Founder referencing Vattel when speaking about citizenship. Not one.

However, we see plenty of quotes pulled from speeches, letters and other contemporary articles and correspondence of the day that are attributed to Founders and ARE NOT quoting Vattel when speaking about citizenship. For instance, here's James Madison (the Father of the Constitution) speaking about jus soli v jus sanguinis during In a speech before the House of Representatives in May of 1789, Madison said:...

"It is an established maxim, that birth is a criterion of allegiance. Birth, however, derives its force sometimes from place, and sometimes from parentage; but, in general place is the most certain criterion; it is what applies in the United States."

Now, you can find plenty of other quotes from Founders referencing both of Vattel's most famous works. And Birthers, attempting to give their claims patina of credibility, frequently reference these plainly unrelated Vattel quotes. Laws of Nations was an important work, but it's plain to anyone who understands Constitutional history with respect to this issue, it had nothing to do with natural-born. English common law is where the founders looked for guidance with respect to citizenship issues. Vattel is not quoted in United States v. Wong Kim Ark 169 U.S. 649 (1898). It is not quoted in Perkins v. Elg, 307 U.S. 325 (1939). It is not in Schneider v. Rusk, 377 U.S. 163 (1964). It is not quoted in any US Supreme Court case addressing citizenship.

"It was "student note" written by a law student"

It was a scholarly work published in the Yale Law Journal. If you weren't an uneducated rube, you might have figured that one out on your own, smart-ass. Again, for the intellectually challenged, here's the article...

Natural-Born Citizen Clause and Presidential Eligibility: Resolving Two Hundred Years of Uncertainty, 97 Yale L.J. 881 (1988).

If you ever went to a blue-chip law school, rather than flipping burgers at Dennys or wherever, you might understand the significance of being published at Yale. Typical birther though, can't find the rear-end in the dark with a flashlight and a map.

"Native born = Natural born? Well settled? Really? Where? When? By whom?"

Here you go, birther boy. Quoting form the majority opinion in Schneider v. Rusk, 377 U.S. 163 (1964)...

"We start from the premise that the rights of citizenship of the native born and of the naturalized person are of the same dignity, and are coextensive. The only difference drawn by the Constitution is that only the "natural born" citizen is eligible to be President. Art. II, § 1. "

The import of Schnieder is clear (you know what import means, right?) - they are using "native born" and "natural born" interchangeably, establishing a clear vernacular difference with no legal distinction.

"Amazing. Really. The definition that the framers knew is "interplayed" with the 14th Amendment and naturalization powers. Wow. Yeah. Sure"

You have no idea what she said, and you're mocking her. You're hysterical, and not in the good way.

Quoting form the majority opinion in Schneider v. Rusk, 377 U.S. 163 (1964)...

"We start from the premise that the rights of citizenship of the native born and of the naturalized person are of the same dignity, and are coextensive. The only difference drawn by the Constitution is that only the "natural born" citizen is eligible to be President. Art. II, § 1. "

Hmmmmm.

Can you show us just where he says explicitly that "native born" citizens are eligible to be President???? Something appears to have been lost in your interchange.

If he meant "native born" citizens can be President, then why didn't he say "native born" citizens can be President???

He correctly says "natural born" citizens -- not "native born" citizens. Are you saying that was a spelling error????

Words have meanings and distinctions, you know. Ask your cleaning lady. If she is as good as you say, then she can help you with those things.

Is this the kind of flimsy evidence that you are relying on to support the lawless disregard for the Constitution by the Obama regime???

What they said was that the “only difference” between a native born and naturalized citizen is that the natural born can be President.

That means native born and natural born are, to the court, interchangeable.

This is similar but more explicit than Perkins v Elg, where they wrote, “But the Secretary of State...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...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 only reason to justify the switch from native born to natural born is that the court considered them interchangeable. Otherwise, they would rebuke the Sec of State by saying he denied her native citizenship, which she retained, or perhaps saying he denied her native born status, when she was not just native born, but natural born.

Meanwhile, they had earlier cited with approval a ruling that said “”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...”

Again, if they saw a difference between native born and natural born, they would have used the latter in describing Steinkauler before saying he could be President.

You may disagree if you wish, but the interpretation I give it is not outlandish or bizarre. A court is not going to try to remove the President (which they do not have the authority to do anyways) based on my reading being impossible, and that yours the only reading a person of good will can give.

IMHO. I can’t stop someone from giving money to birther cases, but I can warn them it won’t do any good and that the money would be better spent getting conservatives into office. And the perfect record of losing in court by birthers tends to support my argument...

You have insulted a great number of FREEPERS that YOU derogatory calling "Birthers"!

Those people, including me, are referring to the CONSTITUTION - not more nor less - the law of the land to be followed, and not like you trying to circumventing it at any chance you get by your "scholarly"(?) "teaching"(?), using as a tool for your Cloward/Piven/Alinsky strategy, to keep an illegal alien and usurper in office at any cost!!

You are nothing but a FINO!!!

'Can you show us just where he says explicitly that "native born" citizens are eligible to be President???? Something appears to have been lost in your interchange. "

If you had taken the time to read the entire opinion, you might have seen it for yourself.

Douglas, writing for the majority says...

"As in Mackenzie v. Hare, supra, these cases were sustained on the basis that the classification was reasonably devised to meet a demonstrated need. Distinctions between native-born and naturalized citizens in connection with foreign residence are drawn in the Constitution itself. Only a native-born may become President, Art. II, § 1. A naturalized citizen must wait seven years after he obtains his citizenship before he is eligible to sit in the House, Art. I, § 2. For the Senate, the waiting period is nine years, Art. I, § 3.

emphasis added

Douglas, throughout the opinion, draws NO LEGAL DISTINCTION between native-born & natural-born. I'm not sure how much more plainly Douglas could have put it. This is something even your cleaning lady can understand.

“Goodness. This is why birthers are mocked and ridiculed. It's deserved. You admit that you don't read the piece, but discount its scholarship at the same time. That's rich.”

Resort to ad hominem attacks betrays the weakness of your side of the argument and personal insecurity as well, IMHO, and I don't need a law degree to affirm that.

You leap to lump me into a category of persons, “birthers,” whom you chose to mock and ridicule in true Alinski fashion. I am a truth seeker who lets the facts fall where they may without denigrating persons who disagree.

I didn't say that I didn't read the Yale Pryor article. I don't read every footnote of every article I read. I have read it previously and reread most of it noting a heavy reliance on the argument that the founders roughly equated natural born subject from English common law with natural born citizen and native born citizen. My visual scan for “Vattel” was done prior to using word search (which didn't initially occur to me with these crudely scanned pages from the journal) in full expectation that Vattel would at least be in a footnote.

Earlier researchers, such as Pryor and Solum, did not have access to the internet and computer searches to the extent that we do and you will note that “common knowledge of historical facts” is frequently revised, corrected and enhanced by newly discovered texts and analysis. The overwhelming embrace of Vattel by SCOTUS and the founders appears to me to have completely escaped Pryor and Solum.

Resort to the presumed authority of outdated law review articles is unwarranted now that newly discovered appreciation of Vattel and reliance by the founders has been revealed.

Vattel Cited: Records of the Federal Convention1787 (Natural Born Citizen)
http://www.freerepublic.com/focus/news/2499410/posts?q=1&;page=1

Douglas, writing for the majority says...

"... Only a native-born may become President, Art. II, § 1."

I asked my cleaning lady and she looked at her pocket Constitution and said that Douglas was clearly wrong there. His citation is incorrect as Article II & 1 of the Constitution, which is being cited here, clearly has the word "natural born" in it -- not "native born".

Now giving him credit here, she says that he may have actually meant that "native born" citizens who are also "natural born" citizens can be President, but no "naturalized" citizen can under any circumstances be President. It is possible that that is what he meant, isn't it???

"Earlier researchers, such as Pryor and Solum, did not have access to the internet and computer searches to the extent that we do and you will note that “common knowledge of historical facts” is frequently revised, corrected and enhanced by newly discovered texts and analysis. The overwhelming embrace of Vattel by SCOTUS and the founders appears to me to have completely escaped Pryor and Solum."

Good grief, you've done it again. Apparently, in your mind, and when evaluating legal research prior to the establishment of internet, all legal opinions, articles and essays are presumptively defective, because of absence of what you purport to be - I assume - the only legitimate legal research tool, the internet. This of course, will come as a complete surprise to every attorney, scholar, judge and student of American law that had to endure hard copy editions of Blue Book, up until 2008

I mocked you before, and to be clear, I'm mocking you again. Apparently, what you don't know (which underscores your wanting intellectual curiosity) is that the Yale Law Library is arguably the greatest, most resourced law library - in the world - it is now, and it certainly was in 1988. To assert that Pryor's article is deficient because the internet wasn't yet invented, is the embodiment of absurdity.

BTW, the original publication year of Solum's article was 2008. Of course, had you taken the time to read it, or had the subject-matter expertise to understand it, you might have picked up on that, yourself.

Lastly, and this is what I most love about birthers. When they're losing a fight and realize their in over their head, they ping the "buddies", like a jackal yelping for mother. It's hysterical.

Lawyers have a saying, "When the facts are on your side, argue the facts. When the law is on your side, argue the law. And when you don’t have either the law or the facts on your side, pound the table!"

Typically "elitist" (Alinsky) methods to disrupt and belittle-ling other concerned Freepers with spamming remarks!

Like the other night where one of your FINO friends called butterdezillion a total idiot. She and Miss Tickly (real Patriots) have done more research and produced action than you and your cohorts armchair keyboard "attorneys"(?) all together sitting on your asses and insulting other freepers!!

Your arrogant "lawyer" postings reminds, sadly, about how Charles Gibson looked down at Sarah Palin over his glasses. You are still a FINO & Pinhead!!!

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