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
“BTW, the original publication year of Solum’s article was 2008.”
I stand corrected regarding Solum. In responding to your invective-laced ad hominem I incorrectly recalled the date of Solum’s article to be earlier. Pryor has the excuse of not being able to internet search Vattel and the founders in 1988, but Solum has no such excuse. I will leave it to others, some of whom I pinged, to comment on Solum (which some of them them have extensively).
Lawyers and law libraries have extensive resources, of course, but they do not necessarily have all of the recorded utterances and private correspondence of the founders indexed for all permutations and combinations of natural, born, citizen, and Vattel by date and edition of Vattel. Those many instances are only now being revealed.
You continue to seek refuge in the logical fallacies of appealing to authority and ad hominem attack. Neither advance your argument.
FYI, I have a neurological disability which causes me to experience random mental confusion from time to time and wide fluctuations on my mental acuity during the day, and so I will freely admit making mistakes to when corrected.
I try my best to double check my posts, but sometimes I will perceive things to be facts which are not. Despite my occasional lapses, I believe I can still ad value to this forum.
My first priority is to getting to the truth from whatever source. I try not to be invested in any narrative regarding Obama and I certainly try not to mock people who disagree with me or who are less knowledgeable in my areas of expertise or who happen to make a mistake from time to time.
Typical birther arrogance - anyone who doesn't agree with them and their idiotic beliefs, aren't real "patriots". How convenient. Who's using the "Alinsky Method" now?
I see you're an immigrant to this country. That's fine. I don't know if you wore the uniform in your home country, but I spent the last 25 years of my life wearing the uniform of the US Navy. You've got another thing coming if you think I'm going allow a Johnny-come-lately to accuse me of being unpatriotic.
How many times have you served in Iraq?
I lived many years for a while in two different Scandinavian countries who had a few wars between them centuries ago!
My oldest daughter went to school in the country I was born, and History lessons were quite important that time!!
Then we moved to the other neighboring country where my youngest daughter went to school. Comparing the two countries history books covering the same wars, was kind like day and night in the difference how the stories were written!!!
“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
ping
Allow me to explain my "invective". It is born from frustration in reading responses that are so completely and utterly absent any understanding of how researched legal opinions are formed. Too many people have dismissed - almost out of hand - scholarly (that is to say researched and peer-reviewed) articles while clinging to almost religiously, the musings of people who have NO SCHOLARLY record, no record of legal practice of any substantive note, and no published record on this subject, other than what they've placed on their blog.
Moreover, where do you think the repositories for "recorded utterances and private correspondence of the founders indexed for all permutations" are located? They are located on college campuses and law libraries all over the country. This is the natural habitat of the law scholar, not the internet blogger. So, to assert that the scholar doesn't have unfettered access to these resources, but the internet blogger does, is patently absurd. But, this is what you assert.
Solum, Pryor and NO SUPREME COURT DECISION ON CITIZENSHIP cites Vattel, in any way. Why is that? The obvious reason is because Vattel is not relevant to the citizenship language in the USC, according to the people who have dedicated their lives to making such connections.
But, two or three inexperience and unremarkable attorneys say otherwise, and these are the people that so many choose to cling to. It's disturbing.
I have never seen Mark Levin or Ann Coulter back down from any fight, about anything or against anyone. But, birthers allege that they have because they place absolutely NO stock in any of these claims. Coulter and Levin BOTH have practical experience as constitutional attorneys -that is to say that they have both made a living at arguing constitutional law. And, both are keenly aware that Obama was born to a parent who WAS NOT a citizen, but both Coulter and Levin agree that Obama is ELIGIBLE to be President. How about that?
The Federalist Society, which is the premiere legal organization for semantic originalism and original intent, in the country, has NOT made a single comment about any alleged defect in Obama's eligibility. Are they all in on the grand conspiracy? Are they all more concerned with their acceptance in the liberal community, than they are in conservative circles? Are they all part of the Alinsky conspiracy?
I am sorry to hear about your medical condition. I will temper my remarks to you in the future and I will pray for your recovery.
“between native-born and naturalized citizens in connection with foreign residence are drawn in the Constitution itself. Only a native-born may become President, “
Of those two, yes the native born could be president.
(If they were also Natural Born)
First, I usually don't padding my own back for my accomplishment or brag about them. I have sworn an Oath to my "new" Constitution in front of Senator Bill Nelson, which is very important to me as law of the land, after 3-1/2 years of grueling paperwork for the legal application and interviews!
Second I spent three years in the Danish forces, the Navy, the Army and also in the Air-force. After that I was stationed four years in Greenland on different radio/weather stations. One year after building the worlds northernmost Radio Station "NORD" ever, approx 400 miles from the North Pole. 1-1/2 year at Dundas Radio @ the U.S Thule Airbase. And two other assignments at Holsteinsborg and Prins Christian Sund radio stations!!
To top it off I then spent some 30+ years in the Danish and Swedish Merchant Marine seen most of the world and dealt personally with the legal authorities in the respective countries, but never been in Hawaii or the southern part of West South America, or near the South Pole. I have now been here 27 years and love this country and my "new" family. I'm sorry, English is only my third language!!!
So, Old Deck, as a "Johny-come late" are we comparing oranges to apples, or you still feel obligated to belittle other Freeper individuals here the same way Chuck Gibson vs. Palin???
I understand that. I have had that statute in my website for 2 years.
There’s another one out there, and I’m kicking my ass I can’t find it.
Cheers . . .
If I go back and look in my old Seaman's Book, I would say that I have been Iraq & Iran approx a dozen times plus Kuwait, Bahrain and other "Gulf" countries similar times!!!
"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).
----------------------------
For starters, have a look at the document name: "pryor_note.pdf" Follow that with doing a search in her NOTE, for the term NOTE. You'll see that SHE call's this brilliant piece of "scholarly work" a NOTE.
Not enough for you? Try this on for size then, you ignoramus you...
"Twenty years ago, I examined this question in my student note for the “Yale Law Journal,”"Written by none other than you vaunted "blue chipper" Jill A. Pryor herself on Tuesday, April 08, 2008 in an article titled McCain bid revives 'natural' question
It was a STUDENT NOTE!
Schneider v. Rusk found that native born had the "same rights of citizenship" as Natural Born. Right? Right. Guess what, Naturalized citizens HAVE THE SAME RIGHTS OF "citizenship" AS WELL! Your case there, ANTI-BIRTHER BOY, did NOT say that native citizens are eligible to be POTUS. Now, did they?
Your so blinded by the copious amounts of Barry Kool-Aid you've ingested, that you didn't even read your own quote from the case: "The only difference drawn by the Constitution is that only the "natural born" citizen is eligible to be President. Art. II, § 1. "
Who's the burger flipper here? Stunning!
STUDENT NOTE, from 1988. LMAO! Funny, but not.
You have no idea what a complete imbecile you are, which is profoundly entertaining. If you hadn't received your education from the government, you might know that ALL student articles found in the Yale Law Review are - by tradition - described as "notes". If you are PUBLISHED in a law review, you have PUBLISHED - by definition - a scholarly work.
But, since you've plainly never read a law review in your life, much less been published, your ignorance is excusable, your unfounded arrogance is not. Stick to TVGuide, it's clearly more your speed.
Why are you then trying to keep your beloved "leader" in office?
I mentioned that you are a FINO??
- And your above wordings here looks to me quite like a real threat, is it???
No they don't, moron. Naturalized citizens cannot be President.
I notice plent of after-birthers are trotting out their 25 yrs in the military (of course, no verification, just their say-so) as proof that their lies are truth; corollary is the assumption that anyone without a career in the military knows nothing.
I call it “clutching at straws”.
Today’s name calling is: imbeciles, birthers, and it’s done in the classic Charles Gibson-style!!!
Your a funny old man.
'"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""
Why is it capitalized? Because it is a proper name, that is given to ANY scholarly work published by Yale Law students that are recognized for publication in the Journal. It is a Student Note, not a student note.
Your post impugned the legitimacy and relevance of Pyror's essay, implying that it was analogous to a student homework assignment. It isn't. It is a recognized article that she, like any published attorney or academic, may add to her CV, which parenthetically, she has.
But again, since you haven't the first idea about legal opinion, legal research or academic recognition, you're clueless and your criticism of Pryor's previous works underscores you lack of capacity and explains why you're fascinated by the musings of other unremarkable rubes.
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