Do you think that if this were to be considered in a modern courtroom, the emphasis on the bloodline of the father would be as important as it was when the Constitution was written? I do not believe it would be so.
As we have all seen, priority is often given to the mother in child custody issues, when it certainly would have been almost unthinkable a) for a woman to instigate a divorce in the 1770’s, and b) get custody of the children if the father didn’t want her to.
I really do not think that “the natural order of things” placing so much importance on the citizenship of the father as opposed to the mother (since we know at this time, the wife would have automatically gone with the husband in terms of naturalization)? Nowadays, we think more in terms of equality of the parents contribution and the mother certainly doesn’t have to share citizenship with the father.
Also, I wonder if any country automatically finds a baby and extends dual citizenship to the child if a parent is from another country than where the baby was born. I know in the instance of my half-Swedish child, she lived in Sweden for four years as an American whose father was Swedish before her dad applied for her to have dual citizenship. Would that qualify for “at birth” do you think, as she could have applied for it (whether we lived or travelled to Sweden or not) from birth?
Obviously, people on the web who aren’t lawyers can’t be sure of their answers being legally correct, but it is an entertaining debate! Thanks!
There would be extremely divisive responses to any NBC ruling as there has been with attempts at legislating clarification of NBC.
The current SCOTUS runs from Ginsberg with her “make up a living law ruling” approach on the left to Scalia on the right who is a proud orignialist. Any ruling on NBC would depend on the mix and ultimate majority of judges falling on that continuum.
Justices are frequently eager to rule on certain matters, but this NBC question is one that they would appear to prefer to “evade” as Thomas said.
Some matters are best addressed via a constitutional amendment rather than ad hoc SCOTUS rulings and a clarification of NBC is exactly that sort of issue. But so far numerous efforts to get an amendment that would define NBC for our 21st century culture have failed to pass as well as non-amendment congressional clarifications.
Just look at the pending AZ statute regarding how to identify, arrest and deport illegal immigrants as well as the 2006 “amnesty” fight. Defining NBC to exclude anchor babies and those with a non-citizen parent would produce a firestorm of controversy.
Consider the irony that if Obama’s parents were non-bigamously married he could be ruled by SCOTUS to be ineligible, but if his mother was legally single and delivered BHO II in HI, he could be POTUS! Would conservatives who trumpet family values get behind this possibility?
I am assuming that your daughter was born in the US, but her dad was a Swedish citizen and then he father obtained Swedish citizenship for her while she was in Sweden.
In that case your daughter would not be NBC at birth, in my opinion. But others (including a dubious IN appeals court decision) and several FReepers would say that she is NBC per the Wong Kim Ark ruling. I strongly disagree with that interpretation of Wong.
If you haven't seen the Perkins v. Elg case you might find that interesting. A girl with two naturalized US citizen parents who had immigrated to the US from Sweden was taken back to Sweden by the parents who then renounced their US citizenship and obtained Swedish citizenship for their daughter. She was blocked from reentering the US as an adult and she appealed.
SCOTUS found that on returning to to the US as an adult she was still a US NBC because her parents could not expatriate her from her NBC status while she was a child. Only she, by her own action as an adult, could expatriate herself.
http://www.loislaw.com/advsrny/doclink.htp?alias=FDCCASE&cite=99+F.2d+408