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
I don't think he will, not as a practical matter.
In the modern era, I can't think of a single, major-party candidate - and certainly not an incumbent - who wasn't on the ballot in all 57 states ;)
If Obama is disallowed ballot access in a state, even AZ, because of his refusal to provide the appropriate documentation, that will be a HUGE story. In fact, I would say it would be the biggest election story in generations. He can't, as a practical political matter, ignore it.
The irony is he would be forced to be the plaintiff in the case that might (although unlikely) disqualify him from office.
Let’s hope you’re correct. I will feel a lot more confident though if FL challenges him as AZ has.
The natives, or natural-born citizens, are those born in the country, of parents who are citizens
Vattel
With Obama there is no “Proof” of anything.
Thats the friggin trouble.He has gone to great trouble and expense to hide any “Proof”
Now you can believe he just happened to hide all “proof” innocently if you like. You can stick your head in the sand and ignore it. But something is not right in this guy’s past.
Conservapedia says approximately 1% with less than 100 certs granted each year. That’s be 100 in 10,000?
Now I’m really curious.
Ms. Elg, was a natural born citizen, born in the US of parents who were, at the time, citizens. Same with Steinkauler. (Even though the quote from the case does not mention his mother's citizenship, at the time the wife took the citizenship of the husband upon marriage).
The cases are not parallel or comparable.
A particular native born citizen, who was also natural born, having US Citizen parents and having been born in the US.
“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.”
Where do you find legal support for this idea? If anything, I see the opposite - that natural born citizen may well have originally conveyed an idea different from native born, but by the time of Perkins v Elg, had become synonymous.
They are used interchangeably without notice in the decision.
And, for the purposes of this post, I’d be content if folks would agree that well-intentioned folks can honorably disagree on the correct meaning of NBC. At a minimum, I think it is clear that it doesn’t require malicious intent or hatred of country to conclude that the legal definition of NBC does not REQUIRE two citizens as parents.
One of the key problems is the from the establishment of the US Constitution and the Natural Born Citizenship was inherited from the Father. This only Changed in 1934. When you change the rules in the middle of the game, the players become confused. Before the 14th Amendment citizenship was granted at birth based upon their bloodline connection to US Citizen. After the 14th Amendment citizenship was granted by place of birth and/or bloodline. The problem of course is that the 14th Amendment changed the rules of citizenship without explaining how it was going to affect NBC status. So now that the 14th amendment has created another type of citizenship in addition to ius sanguinis (bloodline) citizenship, we have to ask which one of these is the one that confers NBC status? Bloodline, place of birth, or both? But the Constitution doesn't say that all citizenship types granted at birth confer NBC status.(If you just had to be born a citizen to be an NBC then why not say "native citizen" or only a "born a citizen" shall be eligible to the office of President? Why does the Constitution use the word "natural" born to qualify the statement? It suggests that the is a distinction between a "born citizen" and a "natural born" citizen.)
Nevertheless, the Constitution does not address the problem because the founders did not recognize ius soli (citizenship through place of birth) and the authors of the 14th amendment didn't think their wording through very well. This gets even more complicated if you start to ask questions about what the term "AND subject to the jurisdiction thereof..." means...because it suggests that ius soli itself has limitations on when it may be granted.
Assuming he was one or both of those to begin with.
One of which he was not, the other of which he may or may not have been.
An original birth certificate; and a photocopy of a birth certificate; both with impeccable provenance. As well as a wide range of statements by a number of persons with first hand knowledge. And admission by Obama on at least two occasions. If permitted to get that to a trier of fact with a justiciable issue, I would get most of that into evidence.
Yes, I think we know where he was born. Lots of trolls here to deny it but there isn't any doubt what the outcome would be if you ever got the issue to a trier of fact.
Ooops. Sorry about the grammar mistakes. It should read:
One of the key problems is that from the establishment of the US Constitution, Natural Born Citizenship was inherited from the Father.
I haven't had time to read the comments so perhaps someone has already answered the question. Both of my mother's parents were from Sweden. My grandfather became a US citizen, my grandmother did not automatically become naturalized through him, in fact never did become a citizen. My mother was born in 1921 so we're talking about the same period of time.
There are "previous cases" in which dicta gives the "born in the country of parents who are citizens" definition. None of them would need to be overturned, because none of them hinged on whether someone was or was not a natural born citizen.
However in both the cases you cite, the person was a natural born citizen, by the citizen parents and born in the nation definition.
Find a case where they declare someone not born of citizen parents to be a natural born citizen, and you'll have something more, but it will still be dicta.
Wong Kim Ark was declared to be a citizen, and was "native born" by modern usage, but was not declared to be natural born. His parents were subjects of the Empress of China.
The arguments for natural born citizen rest on where the natural allegiance of the individual lie. So lets compare Marie with Barry:
1 Marie’s parents were natives of Sweden, naturalized at her birth, who returned to Sweden and renounced US citizenship.
Barry’s parents were a split - born in the USA, and born in Kenya. Barry’s mother never gave up her US citizenship, while his father never claimed it.
2 Marie’s mother moved to Sweden with Marie when Marie was 4, and they both lived there as Swedish citizens for the next 17 years.
Barry’s father was not legally married to his mother, doesn’t seem to have ever lived with her as man & wife, left them completely when he was 2 or 3 and only saw Barry once during the remainder of his life.
3 Marie lived as a Swedish citizen for 17 years, while Barry has no record of ever renouncing US citizenship, and has retained his citizenship his entire life (as best as we can tell from any records). He certainly has never claimed UK or Kenyan citizenship.
So...who has claims of a stronger natural allegiance to the USA, Marie or Barry?
Yes, I agree that Barry is a severely warped individual who believes in Rev Wright’s and Bill Ayer’s teachings...but who would normally have greater natural allegiance to the USA - Marie or Barry?
I think that is how a court would approach this case, and I think the answer is clearly that Barry has more reason to love the USA than Marie had. That he doesn’t is due to his perversion - I don’t know how anyone can read Dreams without concluding that Barry needs serious counseling to help him get over his issues of abandonment, rejection and hatred.
But purely from the facts, who would naturally feel the greatest allegiance to the USA?
OTOH, I grant that I’m not a lawyer and certainly cannot say with certainty how the Supreme Court would approach this.
Why not? They do it all the time. As they should when that 50% + 1 will is in conflict with the Constitution.
this issue, IMHO, should be decided to firmly establish the law and set legal precedent.
Indeed they should. It's their FReaking job.
The question is whether the plaintiff, Marie Elizabeth Elg. who was born in the United States of Swedish parents then naturalized
But then, you go on to say this:
Again, I concede that I do not know the naturalized status of the parents at her birth.
Why don't you know? You provided it yourself, as a fact stated in the decision, at the beginning of your own article.
I've said before and I'll say it again, that I've long enjoyed your many lengthy and well-reasoned responses in defense of your religious beliefs on the Religion Forum. But, this, somehow, is completely out of your element. You've made an embarassing and very basic blunder.
You're also covering ground that has been covered much more thoroughly on Free Republic, on the vedritable avalanche of threads regarding the eligibility question that have been posted with replies into the tens of thousands, since early 2008.
You're capable of better than this, Mr. Rogers.
The long and the short of Elg is that she was a natural born citizen because both her parents were citizens and she was born in the United States. There is nothing controvertible in this decision that can be used in an attempt to deride the so-called "birther" Constitutional argument.
Natural born is more than "birth in the US. While the natural born citizen clause is an attempt to ensure allegiance, it's a technical process type requirement. One either meets the requirement or one does not. One either is natural born or is not. Ms Elg was, Mr. Obama is not.
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