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, including Wong 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:


From the views here expressed, and they seem to be unexceptionable, it must follow that, with the slave, with one devoid of rights or capacities, civil or political, there could be no pact that one thus situated could be no party to or actor in, the association of those possessing free will, power, discretion. He could form no part of the design, no constituent ingredient or portion of a society based upon common, that is, upon equal interests and powers. He could not at the same time be the sovereign and the slave.



But it has been insisted in argument that the emancipation of a slave, effected either by the direct act and assent of the master or by causes operating in contravention of his will, produces a change in the status or capacities of the slave such as will transform him from a mere subject of property into a being possessing a social, civil, and political equality with a citizen. In other words, will make him a citizen of the State within which he was, previously to his emancipation, a slave.



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. 

26 thoughts on “Paige v. State of Vermont, decoded

  1. Their arguments are novel, and at least mildly amusing.

    Thanks for the link.  I’ve spent way too much time and thought on this, but a couple hits will more than make up for the energy I could’ve applied elsewhere!

  2. I’ve found that people who accept one conspiracy theory tend to accept fringe ideas as well.  So a birther thinking the Fed is illegal isn’t shocking, nor really is the stuff about income taxes and the 17th Amendment.  It’s like they go to the Christmas Tree Shoppe to stock up on a lifetime’s supply of wacky.

  3. Arthur was one of the original targets of birthers back in the day, as his opponents tried to cast doubt about his US birth, suggesting he actually was born in Canada.  Bonus: that birthplace in Fairfield is probably neither the house, nor at the actual location, of his birth.

    I wonder if birthers thus think all these “illegitimate” presidents had no controlling authority, thus all laws they signed are invalid?

  4. Obama is a natural born dictator.

    All defending Obama, are defending a murderer and warmonger, someone who has trampled on the U.S. Constitution and should be impeached if we had representatives with guts and moral principle and want to prevent the equal nightmare of a Romney dictatorship.

    In this situation the unfortunate thing with Paige is that identifies himself with the Republican Party, thus suite is easily a target for politically motivated attacks.

    This is why this story is out in the open at this point, because the Attorney General of Vermont, William Sorrel, leaked the story and wanted to create an scene in the media.

    Green Mountain Daily as such works as an intelligence operation for the Democratic Party, which of course is owned by Wall Street, and is the Party that ultimately protected Bush.

    Remember it was the Democrats who said that impeaching Bush would get in the way of electing a Democrat President. Well now we have a Democrat elected President, Obama, and he has surpassed the crimes of Bush and Cheney.

    Does Green Mountain Daily and its kind really care about our Constitutional Rights? Such as Habeas Corpus, such as the right of Congress to declare war, such that American Citizen’s should have the right to a trail and not merely killed as Obama has done repeatedly?

    Obama must be impeached now because it is the right and necessary thing to do when Obama is taking the world to the edge of a thermonuclear war as is case.

    Obama is behind the Al Queda death squads in Syria, in Libya, killing now even his warmongering minions like Ambassador Stevens.

    If you do not agree with the immediate impeachment of Obama then you think it is alright that a President Romney inherit the powers that Obama has taken. Then you are a slave and not a citizen of this once free nation, but an excuse for tyranny and thus not really a citizen yourself.

    Then go to hell.

  5. Filling more and more of my entertainment time. Wow.

    Some of this stuff is like if M. Night Shyamalan and the guy who wrote and produced ‘Lost’ had a love child who took over for the crew that put on the West Wing.

    Good stuff.

  6. Let see now:

    1) Stop taking the wages of the working man – which is of course incremental slavery. Seems fair. Tax only Income, you see before the implementation of the Internal Revenue Code in 1913 , the government could only tax “income” which was understood to be “money that comes from money – ie. Interest from investments and savings, capital gains and earnings from Real Estate (rent) and net profits from the operation of Businesses. ANYTHING CRAZY HERE?

    2) Get the Treasury Department to start doing their job again – i.e. regulating the monetary system, controlling the money supply and overseeing the banking system. Seems like a better idea than letting the banks oversee themselves. Letting the fox guard the hen house! HOW’S THAT BEEN WORKING OUR FOR YOU (US)?

    3) The Senate has become America’s monarchy – Once they are in, they’re in for life. They hang on until they are so senile that they forget why they are there and what party put them there (Jim Jeffords comes to mind right away). IN the Constitution (before 1913 – yea we screwed up a lot of stuff that year) and the implementation of the Seventeenth Amendment, the State Legislatures and Governors selected the best person to go to Washington and represent the interest of the States in their capacity as sovereign entities. Today Leahy and Sanders parade around the state like nobility – passing out the Federal Largess as if it were their money and they had decided to give us a little for letting them keep their aristocratic lifestyle! I think, once again that the Founders and Framers plan was better than returning Lord Leahy and Baron Bernie to Washington until they are  too old to find their way home!

    4) Oh, you didn’t have a four – well here is another, I had/have lots of them. How about instead of fretting and fussing about the Post Office, like Sander and Leahy love to do, and endlessly talk about new “business model” stuff – we take a look at the Constitution and find out that the operation of the Post Office IS a Constitutional responsibility of the Federal Government. Back in the ’70’s FEDEX, UPS, DHL and a hundred regional parcel delivery services – “slicked up the palms” of the Federal politicians and in return those “fat cats” gave away the most profitable part of the Post Office franchise. Before, delivery services could only deliver between businesses (under the ICC act – think trucking), but now they could deliver between businesses and individuals and a little later individuals could ship to businesses and to other individuals. Now the parcel services didn’t have to (and even today do not) deliver EVERYWHERE – they only deliver to populated areas where it makes economic sense. The good old Post Office still has the responsibility to deliver everywhere, six days-a-week. Now we cannot put the “gene” back into the bottle, HOWEVER we could remunerate USPS for their “stolen” package franchise! By implementing a 2% (or so) parcel delivery tariff, tax (whatever you want to call it) on the folks that stole the small parcel business form the Post Ofiice and make them whole for their lost franchise? AND BY DOING SO, the Post Office would be back in the “black” ( that’s “making money” for you socialist that don’t comprehend profits as a good thing)! I won’t even get into the fact that the private companies should be prohibited from delivering the equivalent of First Class Mail – think FEDEX OVERNIGHT CORRESPONDENCE DELIVERY!


    I’ve got lots more but it’s two AM and I have promised the Calvin Coolidge (there was a great 20th century president) Homestead that I will  bring my Spavin Cure (Salesman’s) Wagon to Plymouth Notch tomorrow (actually today) and chat about Vermont History and Vermont’s famous Dr. B.J. Kendall and his fabulous horse remedy – GOOD FOR MAN OR BEAST!

    I’ll check back with you later – play nice ’til I can check on you again!

    Have a Great Weekend, Brooke  

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