Friday, September 21, 2012

Paige v. State of Vermont, decoded

Okay, I sort of promised I would do this, and I got the guy to send me his pleadings and everything, so here it is.
Brooke, if you're reading, here's the true analysis of your case. And, readers, feel free to just skip it if your head starts to hurt. 
The case name is H. Brooke Paige v. State of Vermont, et al., and it's pending in Washington Superior Court, Civil Division, Docket No. 611-8-12 Wncv. Two of the defendants, the State of Vermont and Jim Condos, have been served. President Obama has still not been served.
This case is what could be called second-order birtherism. It is based not on the disproven claim that President Obama was not born in the United States, but that he is not a natural born citizen because there is some additional requirement to establish natural born citizenship for purposes of eligibility to be President.
As you know, the Constitution provides that in order to be eligible to be President you must be a "natural born citizen". This is the only office for which that is a requirement, and "natural born citizen" is nowhere defined in the Constitution.
The claim that Paige makes is that when the Constitution uses the term "natural born citizen" it means "a child born in the country to `citizen' parents". This is because the term and meaning was invented by Emer de Vattel in his book The Law of Nations, which Paige tells us was in the possession of a number of the members of the Constitutional Convention when they adopted the Constitution.
That's pretty much it. That's the basic claim.
As you might guess, there are a few holes in this theory.

First off, if the Constitutional Convention had wanted to say what Paige claims, why didn't they just say it, or define "natural born citizen"?  No answer has been given to this fundamental question.
Second, as GMD regular ntoddpax points out in his own blog, Vattel doesn't say what Paige claims he says. Rather, Vattel's definition of natural born citizen is a citizen born in a country whose father is also a citizen of the country.  The citizenship of the mother doesn't enter into it. Thus, not only is this argument inherently bogus, but he even has to make stuff up to make this argument fit.
Third, as originally written the Constitution contained no definition or criteria for citizenship, vesting in Congress the power to establish "an uniform rule of naturalization". It was not until after the Civil War, in the Fourteenth Amendment, that the Constitution was amended to provide that "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside."
At least since that time all credible and objective commentators have reasoned that every person born in the United States, having been citizens from birth, are natural born citizens.
Paige's response is that the Fourteenth Amendment doesn't change the definition of natural born citizen, and that no statutory or constitutional amendments adopted after the adoption of the Constitution change the original meaning of natural born citizen.
This in itself creates an internal contradiction, because Paige also says in his complaint that subsequent legislation, such as the Naturalization Act of 1790, establish the definition of natural born citizen. (Query: How can a statute establish or create the meaning of a provision of the Constitution?)
Funnily enough, the only use of the phrase "natural born citizen" in the 1790 Act is here:  And the children of citizens of the United States that may be born beyond Sea, or out of the limits of the United States, shall be considered as natural born Citizens". The pertinent language, which I have highlighted, is instructive: this language doesn't say anything about persons born in the United States, it just says that someone born outside of the United States to citizen parents is entitled to be considered a natural born citizen. Since it would be absurd to argue that the only persons entitled to be considered natural born citizens are those born outside of the country to citizen parents, the only logical reading of this sentence is that it is a means of conveying natural born citizen status to these people in addition to those who already have it, those born in the United States.
Many cases have applied the citizenship clause of the Fourteenth Amendment, including the famous Supreme Court decision of Wong Kim Ark. Birthers are fond of arguing that none of these cases, includingWong Kim Ark, establish the definition of "natural born citizen" because none of them had to do with eligibility for President, which is the only application for that status. The problem with this argument is that it is entirely negative: even if it did prove that Wong Kim Ark did not establish the definition of "natural born citizen", it still provides no evidence that their pet definition is correct.
Fourth (I think that's what I'm up to), not a single court that has reviewed a challenge to President Obama's eligibility, and I think we're up in the neighborhood of 150 cases now,, has ruled in favor of the claim that Paige is making here. Is it possible that all those state and federal judges are wrong and Brooke Paige is right? I suppose anything is possible, but  the odds are pretty heavily stacked against it.
Fifth, President Obama is the seventh President born to at least one non-citizen parent. If he's ineligible then so were  Woodrow Wilson, Herbert Hoover, and Vermont's own Chester Alan Arthur, among others. Granted, maybe we would have been better off without James Buchanan or Herbert Hoover, but wishing won't make it so.
In short, there is no basis in law for the claim that President Obama is not a natural born citizen and therefore ineligible to serve as president. No court has ever ruled otherwise, and no court ever will. The chance that a Vermont trial court judge, or the Vermont Supreme Court, will rule that he is ineligible is precisely zero.
I know this has gone on for some time (you were warned), but I thought I'd just throw out a couple of other things you might have missed.
First, Paige's buddy, consultant, drafter, or whatever you want to call him in this case is notorious New Jersey birther attorney Mario Apuzzo. You can see some of his antics caught on video here.
Second, following Paige/Apuzzo's kitchen sink approach, the complaint sets forth a number of other areas that they think will incline the court in their favor, including a statement that their definition of "natural born citizen" "was again confirmed by Justice Daniels in Dred Scott v. Sandford, 60 U.S. 393 (1857)." Disregarding the misspelling of Justice Daniel's name (no s), it is most striking that anyone would try to bolster his argument by citing one of the most notorious  decisions in Supreme Court history.
I think I've found the language in Daniel's concurrence that Paige is talking about:

It is difficult to conceive by what magic the mere surcease or renunciation of an interest in a subject of property, by an individual possessing that interest, can alter the essential character of that property with respect to persons or communities unconnected with such renunciation. Can it be pretended that an individual in any State, by his single act, though voluntarily or designedly performed, yet without the co-operation or warrant of the Government, perhaps in opposition to its policy or its guaranties, can create a citizen of that State? Much more emphatically may it be asked how such a result could be accomplished by means wholly extraneous and entirely foreign to the Government of the State? The argument thus urged must lead to these extraordinary conclusions. It is regarded at once as wholly untenable, and as unsustained by the direct authority or by the analogies of history.

. . .
 That, in the establishment of the several communities now the States of this Union, and in the formation of the Federal Government, the African was not deemed politically a person. He was regarded and owned in every State in the Union as property merely, and as such was not and could not be a party or an actor, much less a peer in any compact or form of government established by the States or the United States. That if, since the adoption of the State Governments, he has been or could have been elevated to the possession of political rights or powers, this result could have been effected by no authority less potent than that of the sovereignty -- the State -- exerted [p482] to that end, either in the form of legislation or in some other mode of operation. It could certainly never have been accomplished by the will of an individual operating independently of the sovereign power, and even contravening and controlling that power. That, so far as rights and immunities appertaining to citizens have been defined and secured by the Constitution and laws of the United States, the African race is not and never was recognised either by the language or purposes of the former, and it has been expressly excluded by every act of Congress providing for the creation of citizens by naturalization, these laws, as has already been remarked, being restricted to free white aliens exclusively.

  Finally, birtherism does not seem to be the fringiest of Paige's fringe positions. Other equally wacky, if not more so, positions of his include:  

Tax Reform based on the elimination of Federal Taxation of Wages, the Restoration of the Constitutional Authority of the U.S. Treasury (by devolving the illegal Federal Reserve System back under government control), repeal of the Seventeenth Amendment as the best way to resolve the issue of term limits and the current voilation of the voting rights act of 1963 by our continued selection of U.S. Senators by popular vote - I could continue but you get the point. 
I won't spend much time arguing the point, but the evidence for President Obama's eligibility is so clear, and the support for the claims against him are so clearly spurious, requiring heroic efforts to sustain, that the only reasonable explanation is that birthers are motivated by a view that President Obama embodies a unique and unresolvable otherness that renders him unfit to ever serve as President of this great nation. That otherness, of course, is his race.


Anonymous H. Brooke Paige said...


At the end of the day - what you think, what I think, what the press think matters not, the Presiding Judge's studied opinion is he only one that counts. What you fail to appreciate is the simplicity of this action. I have excepted as true and correct the Hawaiian birth certificate and the fact that Mr. Obama is and always (I think) been a "Citizen of the United States". SO the only issue to be resolved is what he Framers understood the phrase "natural born citizen" meant to them in 1787. The Constitution can be modified only by Amendment and the Office of President has been changed in several ways by that process. 20th, 22nd, 25th and arguably the 14th(at section 3).
HOWEVER the qualification of "natural born citizen", a phrase so well known and understood not only as a "term of art" among diplomats, scholars, and "lawyers" and also as a "term in common usage" at the time by the citizenry and inhabitants of the nation when the Constitution was conceived, crafted and approved by the Constitutional Convention and ratified by the sovereign States then under the powerless Congress and President of the Congress under the Articles of Confederation.
So let's allow Judge Bent to review the law and make his determination - as Mr. Obama's place of birth and the citizenship of his parents is mutually agreed upon by the parties.


One last issue that you raised that I am sure you were already aware of - prior to the 20th century it was the practice and tradition that a wife assumed her husband's citizenship upon marriage - this was the tradition that de Vattel was familiar with at the time of the writing of his revolutionary
book of politicial and social science, "The Law of Nations" - however that certainly is not our tradition today.

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Anonymous Anonymous said...

Well, out of all of the points you made, I will say that the definition was never given in the Constitution because Vettel even wrote in the law of Nations that excessive definitions were unnecessary, and since the Law of Nations is quoted within the Constitution it was unnecessary for them to define it. Whether or not you agree with either definition, Obama wouldn't fall under either since it's his father's citizenship that's the issue. There are three different terms which are being looked at however, the nbc, naturalized citizen and the native born citizen, which are all 3 defined differently. The term nbc was given to children born abroad of Parents (plural) who were citizens, nothing more nothing less. And Arthur was the only one in that line up to be born before one of his parents became a US citizen, minus those who were citizens at the drafting of the Constitution.

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