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".

Just IMHO. Thoughts?

You're right on. As Edwards Pierrepont wrote (it would have been in 1875 or 76), 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. I'm quite sure the Court would agree today, if they ever took a case.

One doesn't remove a President from office lightly. To override the decision by the people as accepted by Congress would require an "open/shut" case - and I don't see this as "open/shut".

The Supreme Court would not remove him even if they had an open/shut case. The Constitution requires them to leave the job of removal up to Congress.

'The Supreme Court would not remove him even if they had an open/shut case. The Constitution requires them to leave the job of removal up to Congress. "

Yep. This is lost on so many. Most lay people don't understand that before a court will har a case, the plaintiff must demonstrate to the court that the remedy they are asking for (presuming that they prevail at trial), is actually something the court can provide.

No court can remove a sitting president, even if that president has been installed under fraudulent circumstances. This is why this case will never be heard for this term of Obama's presidency.

But, the court can provide a remedy for questions of ballot access for federal elections. Should Obama be precluded from a state ballot, then there is certainly a remedy the Court can apply, and is one of the reasons the case would be heard.

There is one other point of confusion for the opposition.

Many still do not understand that NOT all native born are natural born citizens. However, ALL natural born citizens are native born. The Supreme Court gave a very good background about Steinkauler because they described him as native born in the opinion for the reason not to confuse that he was ONLY a native born but also a natural born citizen.

hahaha - I almost said I should exclude Texas in this since they are very conservative on what they teach the kids. I’m sure there are schools that still adhere to these principals, I just have not seen it in my school system. My last child is now in 9th grade. One is in college and he loves bringing up alternate views to that of the teachers. He gets in some heated discussions and in some instances even gets the teachers and kids to see his point.

I’m very proud of him for speaking his mind.

He may not have had US citizenship due to his childhood in Indonesia.

Standard birther canard. You can't give up your native born citizenship prior to attaining the age of majority. Nor can your parents give it up on your behalf.

They knew that a child not raised in this society would not have the reverence and respect for the history of the country.

I rather doubt the founders were that stupid. Do you suppose Marie Elg was not patriotic or something?

Of course, we know Obama isn't patriotic. But it isn't because he was raised by foreigners in foreign lands. He's a natural born red diaper baby. His communist education was at the hands of natural born American communists — Gramps and Gramps's friend Frank Marshall Davis and later Billy Ayers and who knows who else. We have to rely on voters, not founders, to keep such as Obama out of the Oval Office.

So you think that one case that makes up its own term but still supports the use of Vattel should overturn a preponderance of Supreme Court cases that state that the Vattel definition was meant by the founders?

This is what I posted to Mr. Rogers a day or two ago:

http://www.thepostemail.com/2009/10/18/4-supreme-court-cases-define-natural-born-citizen/

Here is more information that those words that do not change hundreds of years of precedence.

http://federalistblog.us/2008/11/natural-born_citizen_defined.html

Hopefully we have enough strict constructionists and non revisionists on the Supreme Court who understand that the people don’t want them to re-write the law, just interpret it.

This case sets out a reasonable summary of the basis on which I believe the Supreme Court would decide the Obama issue if it finds that he was born in Hawaii.

As a matter of fact, there is dictum here in which this Court approves earlier dictum in Steinkauler that a person who becomes a citizen by right of birth in the US is eligible to run for president (Natural Born) even though his father was not a citizen.

Parental citizenship has ceased to be an issue because of the 14th Amedmdent.

And in fact, as I have pointed out, under current law in many of the Euro countries, where a grandfather who immigrates to the US and has a son born in the US who in turn has his own son born in the US; both the first generation son as well as the second generation grandson are both citizens of the Grandfather's country of birth (as well as "natural born" citizens of the US), even though they may not be aware of the fact.

None of this has been of great concern with respect to the Obama situation--at this point, everyone in the knowledgeable political establishment, as well as those of us who have studied the issue here know that Obama was born in the Coast Provincial General Hospital, in Mombasa, in what is now modern Kenya.

I believe Obama was adopted by his Indo-Nesian stepfather and was declared to be an Indonesian when he entered school. Did he later register as an American?

You have a right to believe anything you choose. But there is no proof of this alleged adoption, and according to U.S. Law, a child cannot renounce his U.S. Citiizenship -- and we are talking of a child who lived in Indonesia from approximately age 6 though 10 -- hardly an age where a child can be held responsible for such an important decision.

“Marie didn’t run for President, but the Court refers to her as a natural born citizen. It also approvingly cites a determination that a native born citizen would be eligible to run for President.”

You are referring to the Steinkauler case in which, like Elg, a child of a naturalized citizen father was removed to the home country of the parent.

The ambiguous usage of the term “native citizen” in Elg and Steinkauler does not support a dilution what we now increasingly understand to be an unambiguous Vattel definition used by the founders of “indignes” as “natural born citizen” meaning parents are citizens and born on national soil. All NBC’s are natives, but not all natives are NBC.

Elg and Steinkauler both had US citizen fathers, so there is no comparison to Obama. Under US law in effect when they were born their mothers were US citizens by marriage so both parents of Elg and Steinkauler were US citizens, unlike Obama.

Elg and Steinkauler were both born on US soil which is still in dispute due for Obama due to failure of Obama to release his original vital records and any amendments that might have been made to his original HI vital records.

"Hopefully we have enough strict constructionists and non revisionists on the Supreme Court who understand that the people don’t want them to re-write the law, just interpret it."

One of the foremost authorities on semantic originalism Lawrence Solum, published a paper a few years ago that dealt with the semantic intent of "natural-born". It's a lengthy and somewhat heady piece, as it's written by an academic for the Michigan Law Review. But, in the article (titled ORIGINALISM AND THE NATURAL BORN CITIZEN CLAUSE and which may be found at papers.ssrn.com), Solum posits that a natural-born citizen is any citizen born on American soil to at least one citizen-parent.

Now, if we have Solum, who is extremely well-regarded as an authority on original intent and semantic originalism (see his own legal theory blog), positing this meaning of "natural-born" by characterizing it as "beyond dispute", how do you think the originalists on the Court are going to hold?

I have seen plenty of blog postings from a myriad of pseudo-constitutional scholars or other lawyers of absolutely no note or standing claiming what is so frequently and fervently claimed here - that natural-born means born on US soil to two citizen-parents. But, I have never seen such a theory advanced in any American law journal - to include conservative journals or legal advocacy groups.

Antonin Scalia, Clearance Thomas, Roberts and Alito are all academics - conservative academics, but academics nonetheless; Cut from the same exact cloth as Solum. You can bet a year's salary that the four conservative justices mirror Solum on this particular matter of law.

So that is your real opposition, that some people believe the Supreme Court will reach down and find 0bama unqualified. I apologize. I agree that the court won’t just step in. I totally agree with you. It will take a state to decide this first and to deny 0bama access to the states voters. I don’t even think a small state like AZ will be enough. These birth place questions won’t do it either. Someone has to challenge him to prove he is a Natural Born Citizen in Florida or OH, for 0bama to notice.

0bama will ignore AZ he might even figure on losing TX anyway but he carried FL last time, he wouldn’t carry FL now, and since both FL houses are republican and will probably become even more republican after this next election, we should have a chance to get Natural Born Citizen through the state legislature.

From Perkins v Elg, 307 U.S. 327

This principle was clearly stated by Attorney General Edwards Pierrepont in his letter of advice to the Secretary of State Hamilton Fish, in Steinkauler's Case, 15 Op.Atty.Gen. 15. 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.

Steinkauler's father was a naturalized citizen at the time of his birth, just like Ms Elg's parents were. Both were native born (modern usage) and natural born.

BHO Jr's father was not a citizen. So even if he was native born, he was not natural born.

At some point the meanings of "native born" and "natural born" diverged. Prior to that they were pretty much synonomous. Even in Vattel's "Law of Nations" and many later instances, they are considered the same. (Vattel uses "Les Naturels ou Indigenes" to describe those born in a county of parents who are its citizens".

But they no longer are the same, but it's "native born" that has changed. Native born means "born in the country", and thus a citizen by the 14th amendment. Natural born means what it always has.

Nice try, but a bit too much of a parroting of Where native and natural coincide especially Part Two

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