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
Still I will call L.Col. Lakin a real Patriot honoring his oath to the CONSTITUTION with real conviction!!!
Seems as though they’re getting a bit rattled.
No, the case I cited is precisely antithetical to your statement. You are just either to obtuse, or too intellectually dishonest to admit it.
Rattled? I'm LMAO. They're hysterical. It's like watching monkeys play with their own feces. They don't know why they do it, nor do they understand why people outside the cage are laughing.
It will be an election issue in November.And sooner or later the official pretend president of the United States is going to be cornered with it.
and rxsid is correct about the issue of defining a natuarl born citizen. It is quite clearly been defined by historical usage. WHether some creatibve liberal lefy=tist judge breathes new life into it in the furture remains to be seen. All the arguing that there is any other interpretation other than historical as evidenced by rxsid is a waste of breath.
Kawakita v. United States
No. 570
Argued April 2-3, 1952
Decided June 2, 1952
[From the facts of the case]
"At petitioner's trial for treason, it appeared that originally he was a native-born citizen of the United States and also a national of Japan by reason of Japanese parentage and law. While a minor, he took the oath of allegiance to the United States; went to Japan for a visit on an American passport,"
[ Do Natural Born Citizens take oath of allegiances to the United States? Do natural born citiznes have foreign citizen parents? ]
-snip-
"MR. JUSTICE DOUGLAS delivered the opinion of the Court.
Petitioner, a national both of the United States and of Japan, was indicted for treason, the overt acts relating to his treatment of American prisoners of war. He was
Page 343 U. S. 720
convicted of treason after a jury trial, see 96 F.Supp. 824, and the judgment of conviction was affirmed. 190 F.2d 506. The case is here on certiorari. 342 U.S. 932."
-snip-
[Kawakita a duel citizen at birth and "US native born" with split allegiances between two countries. Are native born citizens the same as natural born citizens? ...No ]
-snip-
"First. The important question that lies at the threshold of the case relates to expatriation. Petitioner was born in this country in 1921 of Japanese parents who were citizens of Japan. He was thus a citizen of the United States by birth, Amendment XIV, § 1 and, by reason of Japanese law, a national of Japan. See Hirabayashi v. United States, 320 U. S. 81, 320 U. S. 97."
- end snip -
The Supreme Court concluded that Kawakita was born in the US to foreign parents who held citizenships of the United States and Japan. We also see here that the Supreme Court concluded he was a 14th Amendment citizen. Before the 1898 Wong Kim Ark case, Kawakita would have been held by the United States as a foreigner, and it would have been an absurdity to declare Kawakita a natural born citizen by anyone and still is. It is very clear that the Supreme Court differentiates between native born and natural born citizens as this 1952 Supreme Court opinion clearly demonstrates. The Supreme Court may describe natural born citizen as natives, but they never go the other way around by saying that ONLY native born are natural born citizens as this court opinion clearly demonstrates...again. This has been explained to you many times.
Creative liberal leftyist judge? Let's see, would you characterize the Heritage Foundation as a liberal leftist orginization?
This is how natural-born citizenship is described in The Heritage guide to the Constitution, by Edwin Meese, David F. Forte, Matthew Spalding, Heritage Foundation, pages 189-191...
""Under the longstanding English common-law principle of jus soli, persons born within the territory of the sovereign (other than children of enemy aliens or foreign diplomats) are citizens from birth. Thus, those persons born within the United States are "natural born citizens" and eligible to be President. Much less certain, however, is whether children born abroad of United States citizens are "natural born citizens" eligible to serve as President ..."
Do you see anything in there with respect to the parentage of the citizens from birth? Was Ed Meese part of this great Alisnky conspiracy when he published this some 3-4 years BEFORE Barack Obama even ran for office? Is the Heritage Foundation really a liberal advocacy group cloaked in conservative clothing.
Here's a news flash, thinking and educated people can believe that Barack Obama is eligible for the office he holds, yet loathe Obama at the very same time. This seems to be a concept that is untenable to at least a few here.
Take a look at his analogy.
Anyone who is concerned that 0thugga is not eligible to be president is a monkey playing with feces.
Wow.
ODH is just going around, lighting farts and smelling the fumes.
The ghosters have lost the debate against the birthers. It was lost when the state if Arizona passed its presidential candidate credential law.
ALL thats left is a bunch of ghoster idjits who do not want the issue to become a political issue in November.
TOO LATE!
Buahahahahahahahahah!
Here’s a news flash>>>>>>>>>>>>>>
How much are you getting paid? I have to laugh at you closet leftists.
Ignore the substance of the post and attack the character of the poster. That's the MO of every birther.
Clearly.
If it is true that we have been under the English common-law principle of jus soli, to the exclusion of all else, throughout longstanding history, then how come Supreme Court Justices throughout history never got the message.
Has it been a secret???
Anyone who has not swallowed the Jim Jones cocktail realizes there is a potential question about the eligibility issue.. More and more people are waking up to tha fact that “something’s not quite right here”.
So ODH now says basically that it’s crystal clear that 0thugga is a NBC.
He’s actually outing himself but good.
Thanks for posting the link to Solum. Several days ago it is coming back to me that I read with interest the extensive debate over the article including wrangling over the date when he made the most recent modifications. Part of my neurological condition affects my creation of short-term memory and I appear to have expunged recollection of reading about this obviously recent article.
The NBC eligibility of a candidate or president with a foreign citizen father has never come before SCOTUS so it is not surprising that SCOTUS has never ruled on the relevance of Vattel’s definition of NBC or John Jay's admonition explicitly against foreign influence for POTUS which appears to have clearly led to the NBC clause and dovetails with Vattel.
My take on Solum, now that I have refreshed my memory (as the witness is asked to affirm in court) is that his scholarship is subject to the inevitable heavy taint of being published after 2004 when the entire Democratic Party supporting Trial Bar and its allies in Law School academia became invested in clearing the way for Obama to become president.
Just because an article is published by a distinguished professor in a peer reviewed journal doesn't mean the article is free of collusion in furtherance of a political agenda. Do you expect us to be so naive as to believe that this never could happen, especially in defense of Obama, given the stakes?
In fact Solum’s piece seems to pointedly constructed to attack Vattel without explicitly naming him.
Just look at the intro to Solum’s piece:
BEGIN QUOTE
Part III argues that that the clause creates a problem for public meaning originalism - the phrase “natural born citizen” may not have had a widely shared public meaning in the late eighteenth century; the solution to this problem could be the notion of a “term of art,” in particular, the idea that the meaning of “natural born citizen” derives from the English concept of a “natural born subject.”
END QUOTE
Using the classic sales technique of “answering objections in advance” Solum posits that even though NBC “may not have had a widely shard public meaning” it might just be a “term of art.” Oh, really?
That is the whole Vattel NBC argument in a nutshell, i.e. that Vattel’s NBC (”les naturelles ou indigenes”) was not in common usage but was a term of art understood and embraced by the founders as they wrestled with a new type of nation requiring an new type of citizen and as being radically distinct from a common law “natural born subject” as described by Blackstone.
But instead of having an honest academic exploration of alternative possible meanings for this term of art, notice how Solum pointedly derails any concept or discussion of such alternative meanings by affirmatively positing that NBC meant “natural born subject”!
Solum then goes on to ignore Vattel and John Jay's obvious link to Vattel and Washington and the other founders pouring over Vattel and instead he extensively explores his theory that NBC was analogous natural born subject.
This, to me, is academic dishonestly by omission in furtherance of an obvious political agenda of protecting Obama’s rear!
As to Mark Levin and Ann Coulter your comments about them “assume facts not in evidence” to which “I object”.
You said:
“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?”
They have never explicitly affirmed Obama’s eligibility under any NBC theory to my knowledge. Not 14A, Wong, Minor, Elk, Elg, natural born subject or any other basis. Please provide a link to support your contention that they “both agree that Obama is ELIGIBLE.”
I have no explanation for why they have actually distanced themselves from birther theories (which are very diverse despite your attempts to deride all in one pot) as opposed to why they say that have distanced themselves from birthers.
As lawyers, they know that you should never assert facts not in evidence (or not in your back pocket yet to be disclosed and placed in evidence) and much about Obama concerns facts that are not yet in public evidence beginning with his original HI vital records. A public commentator with a huge stake in personal credibility would be placing themselves at risk to assert suspicions that HI public officials are mistaken or to presume that SCOTUS would chose Vattel over Blackstone or Wong when the matter has never reached SCOTUS.
As Glen Beck has been going on about this week, Cass Sunstein has advocated making internet conspiracies illegal and using the FCC backed up by an army of paid internet operatives to punish and suppress folks who, in the view, of the government, are spreading “conspiracies.” Why make themselves a target of a federal inquisition by promoting “conspiracies” (speculations that Obama’s behavior is virtual proof that he is hiding something, for example).
Perhaps my best response to your query “How about that?” is that it is best for Levin and Coulter to focus on persuading the public that Obama’s policies deserve to fail on the merits. That is a sure thing. Hoping for a SCOTUS NBC ruling or release of original HI vital records or a living credible Kenyan birth witness or official Kenyan authentication are speculative before the 2012 election.
While speculative, I believe such attempts to find the truth are worthwhile and at the very on the margin move public opinion against Obama as his failure to release his HI vital records becomes increasingly inexplicable for an eligible president.
“thinking and educated people can believe that Barack Obama is eligible for the office he holds”
Actually, no, they can’t. His dad was not American.
You have a way of saying it that makes many of us out here wish that we had your disability.
On Coulter and Levin.....I would say FOLLOW THE MONEY.
commenting on Section 1992 said it means “every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural born citizen.” (Cong. Globe, 39th, 1st Sess., 1291 (1866))"
But the question is: Active duty or "playing" in the reserve???
I had 30+ yrs active in the Merchant!!!
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