The Vermont Court Errs in Dismissing Presidential Ballot Challenge H.
Brooke Paige v. Barack Obama
By Mario Apuzzo, Esq.
November 17, 2012
Judge Robert R. Bent, Presiding Judge of the Vermont Superior Court, on November 14, 2012 dismissed the candidate Barack Obama Vermont ballot challenge of Paige v. Obama, Docket No. 611-8-12. He ruled that H. Brooke Paige does not have standing to bring the action, the court does not have jurisdiction, and his argument on the meaning of a “natural born Citizen” has no merit. The decision can be read at http://www.scribd.com/doc/113533939/VT-Paige-v-Obama-Et-Al-DeCISION-Vt-Super-Ct-Nov-2012 .
Mr. Paige filed his ballot challenge against both candidate Barack Obama and the Vermont Secretary of State, arguing that Obama should not be allowed on any presidential election ballot in Vermont because, being born to a U.S. “citizen” mother, but not also to a U.S. “citizen” father, he is not an Article II “natural born Citizen.”
I.
As to standing, Judge Bent ruled that Vermont has adopted the federal rule on standing which requires a litigant to satisfy both the requirements of Article III and its related prudential component. He explained that standing requires a litigant to show injury in fact, causation, and redressability. He concluded that Paige has not shown injury in fact. But Barack Obama has again won the general election. He now stands to win the Electoral College vote. Paige has adequately shown that his life, liberty, and property can be particularly injured by having to live under the authority and power of a person who may occupy the Office of President and Commander in Chief of the Military who may not be constitutionally eligible to be there in the first place for not being a “natural born Citizen.” Mr. Paige has adequately shown that the Founders and Framers required future presidents to be “natural born Citizens” to protect and preserve the nation. Hence, the clause is a national security measure designed to assure the safety of the nation. Needless to say, the “natural born Citizen” clause is intended to protect and preserve Mr. Paige and to provide for his safety and well-being. That the clause protects all Americans is no reason to deny Mr. Paige its protection in a legal action in which he seeks to have the courts enforce the clause.
Judge Bent did recognize that Vermont also has two statutes, 17 V.S.A. Sec. 2603(a)(3), which allows any legal voter to challenge an election after it occurs. He conceded that on its face, the statute does not limit itself to any particular election issue as the subject of an election contest. He also cited Sec. 2617 which provides: “In all cases for which no other provision has been made, the superior court shall have general jurisdiction to hear and determine matters relating to elections and to fashion appropriate relief.” But he distinguished these statutes and concluded that they only apply to activities occurring during the conduct of the election itself which could change the result of the election and not to presidential eligibility. But the statutes say no such thing and Judge Bent has written words into these statutes which the Vermont legislature did not write. Additionally, whether a candidate is eligible for the office he or he seeks does affect the conduct of the election and could surely change the result of the election. What could be more fundamental to the conduct of an election for any given office than whether a candidate is constitutionally eligible for the office he or she seeks? So, the legislature has specifically passed these two statutes which allow a voter such as Mr. Paige to challenge in the Vermont Superior Court a presidential candidate’s eligibility to be placed on the Vermont presidential election ballot and election to that office through the general election and the Electoral College.
Judge Bent also concluded that these Vermont statutes are no reason for the court to find that Paige has satisfied the requirement of prudential standing, which requires that a plaintiff’s claim is included in “the zone of interest protected by the law invoked.” He found that these statutes do not expressly allow a challenge by Mr. Paige to presidential eligibility and that to allow such a challenge in state court would produce “wholesale chaos and lingering uncertainty to presidential elections.” But such speculation is no reason to deny jurisdiction and to deny Mr. Paige a judicial forum for him to protect his constitutional rights. Our nation’s courts are more than capable to handle and coordinate complex legal matters. That the issue involves presidential eligibility is hardly a reason to conclude that our state courts cannot handle the matter. Moreover, given that the contested issue involves the presidential election, any state court decision on presidential eligibility would be fast tracked to the U.S. Supreme Court which would decide the matter for all the states. Hence, while the Vermont legislature has decided to confer standing upon Mr. Paige to bring his challenge to Obama in the Vermont state courts, Judge Bent has denied him that right.
II.
Judge Bent also concluded that the Vermont state courts or any state courts have no jurisdiction over the question of whether a presidential candidate is constitutionally eligible because for a state court to get involved in the matter could potentially create national chaos. But such speculation is no reason to deny jurisdiction and to deny Mr. Paige a judicial forum for him to protect his constitutional rights. As we saw above, our nation’s courts are more than capable to handle and coordinate complex legal matters and any state challenge would be fast tracked to the U.S. Supreme Court which would decide the matter for all the states. Finally, Judge Bent was not sure whether Congress in joint session under 3 U.S.C. Sec. 15 has the authority to address the issue of presidential eligibility which would make the matter a nonjusticiable political question. Hence, without any say from the courts (both state and federal given the standing rule and the requirements of jurisdiction that he imposes) or Congress, Judge Bent does not allow for any means for resolving under the rule of law any question of presidential eligibility in our constitutional republic.
III.
Standing and jurisdiction do not address the merits of a case. But Judge Bent also concluded that Paige’s argument as to what is an Article II “natural born Citizen” has no merit. Judge Bent erred just based on the text of the “natural born Citizen” clause. “It cannot be presumed that any clause in the constitution is intended to be without effect, and therefore such construction is inadmissible unless the words require it….” Marbury v. Madison. 5 U.S. 137, 174 (1803). Hence, a basic rule of constitutional construction is that every word in the constitution must be given meaning. The Constitution says "natural born Citizen," not "born Citizen." Judge Bent is therefore wrong simply on the constitutional text when he says that anybody who is born a citizen is a "natural born Citizen." There must be a reason the Framers added the word “natural” to “born Citizen.” The reason is that the clause is a word of art, an idiom, a unitary clause, which has a very specific fixed meaning. By adopting such a definition, Judge Bent has given the word “natural” no meaning and has confounded the proper interpretation of the clause by focusing on the result of being a “natural born Citizen” (born a citizen) rather than focusing on the word of art itself which has a very specific meaning. There is nothing about the clause which suggests that the word “natural” is surplusage and intended to have no effect. Hence, his interpretation “is inadmissible” and must be rejected.
Historical sources, case law of the U.S Supreme Court, and acts of Congress also demonstrate that Judge Bent has erred. Vattel at § 212. Citizens and natives, defined the “citizens” and the “natural-born citizens” thus:
“The citizens are the members of the civil society; bound to this society by certain duties, and subject to its authority, they equally participate in its advantages. The natives, or natural-born citizens, are those born in the country, of parents who are citizens. As the society cannot exist and perpetuate itself otherwise than by the children of the citizens, those children naturally follow the condition of their fathers, and succeed to all their rights. The society is supposed to desire this, in consequence of what it owes to its own preservation; and it is presumed, as matter of course, that each citizen, on entering into society, reserves to his children the right of becoming members of it. The country of the fathers is therefore that of the children; and these become true citizens merely by their tacit consent. We shall soon see whether, on their coming to the years of discretion, they may renounce their right, and what they owe to the society in which they were born. I say, that, in order to be of the country, it is necessary that a person be born of a father who is a citizen; for, if he is born there of a foreigner, it will be only the place of his birth, and not his country.”
Emer de Vattel, The Law of Nations, Section 212 (London 1797) (1st ed. Neuchatel 1758). While recognizing that Vattel's The Law of Nations "was a work of significant value to the founding fathers," Judge Bent refers to the phrase, “The natives, or natural-born citizens, are those born in the country, of parents who are citizens” as a phrase used only by Vattel. He said that simply because Vattel used the phrase, the phrase does not have any “constitutional significance.” But Paige provided to the court numerous historical and legal sources that demonstrated that after July 4, 1776, our nation adopted the law of nations model of citizenship and not that of the English common law. Judge Bent avoided any discussion of the naturalization acts of 1790, 1795, 1802, and 1855 which were all jus sanguinis (citizenship derived from parents) based and therefore followed the Vattel model. He also does not address cases like Minor v. Happersett, 88 U.S. 162, 167-68 (1875), where the unanimous U.S. Supreme Court adopted that phrase and jus sanguinis and held that the "natural born citizens," “[a]t common law, with the nomenclature of which the framers of the Constitution were familiar” were “all children, born in a country, of parents who were its citizens” and that at “common law,” “there have been doubts” whether we ever adopted jus soli (citizenship derived from the place of birth) citizenship. Judge Bent wrote as though Vattel is the only person ever to use the phrase when we know that the phrase was also adopted by the U.S. Supreme Court justices in The Venus, 12 U.S. 8 Cranch 253, 289 (1814) (C.J. Marshall concurring), Dred Scott v. Sandford, 60 US 393, 405 (1857) (J. Daniels concurring), and the unanimous U.S. Supreme Court in Minor, not to mention Inglis v. Trustees of Sailor’s Snug Harbor, 28 U. S. 99 (1830) and Shanks v. Dupont, 28 U.S. 242, 245 (1830) which adopted the same rule of partus sequitur patrem, i.e., children follow the condition of their parents which is jus sanguinis citizenship and not jus soli citizenship. See also Ex parte Reynolds, 20 F.Cas. 582, 5 Dill. 394, No. 11,719 (C.C.W.D.Ark 1879) and United States v. Ward, 42 F.320 (C.C.S.D.Cal. 1890) (cite and quote Minor’s Vattelian/American common law definition of a “natural-born citizen”).
Judge Bent said that Vattel’s use of “parents” in the plural does not have any "particular significance." Judge Bent said that “[t]hus far, no judicial decisions have adopted such logic in connection with this or any related issues.” But first, Vattel is not the only person to use the word “parents” in the plural, for the above cited U.S. Supreme Court Justices and case law also did. So Judge Bent actually told us that there is no “particular significance” to the U.S. Supreme Court’s use of the term “parents.” Second, Judge Bent failed to address the fact that at the time of the founding and until 1922 when Congress passed the Cable Act, a wife’s citizenship merged into that of the husband. Hence, “parents,” meaning both husband and wife, always had the same citizenship. Third, “parents” in the plural is nothing new to our citizenship and naturalization laws, for there are so many such statutes in our history that required both parents to be citizens in order for the child to gain any naturalization or immigration benefits. Fourth, Judge Bent accepted that because other cases were fortuitously decided before his, he is bound by those cases and relinquished his own independent thinking on the matter.
Judge Bent's reliance on the Fourteenth Amendment and U.S. v. Wong Kim Ark, 169 U.S. 649 (1898) to expand the group of "natural born Citizens" to include children born in the United States to alien parents is also misplaced. The Framers in Article II clearly distinguished between a "natural born Citizen" and a "Citizen of the United States." In the future, being a “Citizen of the United States” was not sufficient, for only a "natural born Citizen" could be President. The Fourteenth Amendment provides in relevant part:
"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." We can see from the plain text of the Fourteenth Amendment that it only addresses a "citizen of the United States," not a "natural born Citizen."
Wong Kim Ark explained:
“The real object of the Fourteenth Amendment of the Constitution, in qualifying the words, "All persons born in the United States" by the addition "and subject to the jurisdiction thereof," would appear to have been to exclude, by the fewest and fittest words (besides children of members of the Indian tribes, standing in a peculiar relation to the National Government, unknown to the common law), the two classes of cases -- children born of alien enemies in hostile occupation and children of diplomatic representatives of a foreign State -- both of which, as has already been shown, by the law of England and by our own law from the time of the first settlement of the English colonies in America, had been recognized exceptions to the fundamental rule of citizenship by birth within the country. Calvin's Case, 7 Rep. 1, 18b; Cockburn on Nationality, 7; Dicey Conflict of Laws, 177; Inglis v. Sailors' Snug Harbor, 3 Pet. 99, 155; 2 Kent Com. 39, 42.”
Wong Kim Ark, at 682. We can see that the amendment’s purpose was to exclude from basic membership in the United States, which it calls “citizen of the United States” and not “natural born Citizen,” certain children, i.e., those of American Indians, alien enemies, and diplomats. It was not designed to tell us who were included as Article II “natural born Citizens.” We have seen from Minor, as confirmed by Wong Kim Ark, that American common law did that.
Wong Kim Ark confirmed Minor’s American common law definition of a “natural-born citizen" not only when it cited and quoted Minor, but also when it recognized that Wong was a Fourteenth Amendment “citizen of the United States,” not an Article II “natural born Citizen.” Justice Gray told us twice of this distinction. The first time he said: “The child of an alien, if born in the country, is as much a citizen as the natural-born child of a citizen, and by operation of the same principle.' Page 22, note. This paper, without Mr. Binney's name, and with the note in a less complete form, and not containing the passage last cited, was published (perhaps from the first edition) in the American Law Register for February, 1854. 2 Am. Law Reg. 193, 203, 204. ” Wong Kim Ark, at 665-66. Later in his opinion, Justice Gray, in speaking about a child born in the United States to alien parents again said that an alien’s “child, as said by Mr. Binney in his essay before quoted, 'If born in the country, is as much a citizen as the natural-born child of a citizen, and by operation of the same principle.'” Id. at 694. It is critical that when he mentioned it for the second time, his sentence followed the Court’s conclusion which he based on how the colonial English common law held aliens in amity to have sufficient allegiance to the King to make his children born in the King’s dominion “natural born subjects,” that Wong was born “subject to the jurisdiction” of the United States. So twice, Justice Gray told us of the distinction between a child born in the country to aliens and a child born in the country to “citizen” parents. He explained that both are “citizens,” but only the latter is a “natural-born citizen.”
Hence, Wong Kim Ark interpreted the meaning of the Fourteenth Amendment’s “citizen of the United States,” not Article II’s “natural born Citizen.” As Minor instructs, the Founders and Framers had only one definition of a "natural born Citizen." It held that the "natural-born citizens," “[a]t common law, with the nomenclature of which the framers of the Constitution were familiar” were “all children, born in a country, of parents who were its citizens.” Minor v. Happersett, 88 U.S. 162, 167-68 (1875); U.S. v. Wong Kim Ark, 169 U.S. 649, 679-80 (1898) (citing and quoting Minor). It is this American common law (not English common law) definition which the Founders and Framers adopted at the time of the adoption of the Constitution that controls, not what the U.S. Supreme Court said in Wong Kim Ark about a child born in the United States to domiciled and resident alien parents being a "citizen of the United States" under the Fourteenth Amendment. In fact, Wong Kim Ark analyzed whether the law of nations, which is the basis of our American common law definition of a “natural born Citizen,” had any controlling effect on defining citizenship in our nation at the time that the Fourteenth Amendment was passed, not when the Constitution was passed. Hence, Wong Kim Ark was not concerned with the Founders’ and Framers’ view of what was a “natural born Citizen” and Article II, but rather with the Fourteenth Amendment. It is therefore error for Judge Bent to use the Wong Kim Ark decision to expand the class of people who can be held to be “natural born Citizens.”
In his cursory mention of Minor in Footnote 1, Judge Bent also conflated and confounded Minor’s use of the word “citizen” with “natural born Citizen.” He pointed out that Minor said that “there have been doubts” whether “children born within the jurisdiction without reference to the citizenship of their parents” were “citizens.” He added that Wong Kim Ark answered that question which Minor left unanswered. But then he also concluded that Wong Kim Ark defined who was a “natural born Citizen.” But if Wong Kim Ark answered the question left open by Minor, it did not define what a “natural born Citizen” was, but rather only what a “citizen” was. A careful reading of Wong Kim Ark shows that it recognized that Minor left open the question of who was a “citizen of the United States” under the Fourteenth Amendment, not who was an Article II “natural born Citizen.” For example, Wong Kim Ark said:
“That neither Mr. Justice Miller nor any of the justices who took part in the decision of The Slaughterhouse Cases understood the court to be committed to the view that all children born in the United States of citizens or subjects of foreign States were excluded from the operation of the first sentence of the Fourteenth Amendment is manifest from a unanimous judgment of the Court, delivered but two years later, while all those judges but Chief Justice Chase were still on the bench, in which Chief Justice Waite said: ‘Allegiance and protection are, in this connection’ (that is, in relation to citizenship),
‘reciprocal obligations. The one is a compensation for the other: allegiance for protection, and protection for allegiance. . . . At common law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children, born in a country of [p680] parents who were its citizens, became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further, and include as citizens children born within the jurisdiction, without reference to the citizenship of their parents. As to this class, there have been doubts, but never as to the first. For the purposes of this case, it is not necessary to solve these doubts. It is sufficient for everything we have now to consider that all children born of citizen parents within the jurisdiction are themselves citizens.’
Minor v. Happersett (1874), 21 Wall. 162, 166-168. The decision in that case was that a woman born of citizen parents within the United States was a citizen of the United States, although not entitled to vote, the right to the elective franchise not being essential to citizenship. The only adjudication that has been made by this court upon the meaning of the clause, ‘and subject to the jurisdiction thereof,’ in the leading provision of the Fourteenth Amendment is Elk v. Wilkins, 112 U.S. 94.” Wong Kim Ark, at 679-80. Here, we can see that Wong Kim Ark focused only on the Fourteenth Amendment, its “subject to the jurisdiction” clause, and its definition of a “citizen of the United States” when discussing The Slaughterhouse Cases, Minor, and Elk. It was not concerned with Article II and its meaning of a “natural born Citizen.”
Judge Bent stated that Wong Kim Ark concluded that the original framers obtained their model of citizenship from the English common law. While he told us by citing and quoting Wong Kim Ark what the English common law in England was on subjecthood, he did not present any evidence that the Founders and Framers adopted that English common law to define the new U.S. national citizenship. He concluded without citing to any evidence that “there is no apparent distinction between” a “natural born citizen” and a “natural-born subject.” He failed to discern that Wong Kim Ark, faced with having to interpret and apply the Fourteenth Amendment to determine whether Wong was a “citizen of the United States,” needed to decide who was a “citizen” under that amendment, not who was a “natural born Citizen” under Article II, and that the Court used the English common law as an aid in doing that and not to define an Article II “natural born Citizen.” He also failed to address Minor which in specifically defining a “natural-born citizen,” used a model of citizenship that was based on the law of nations which became American national common law and not the English common law. In this connection, he also avoided any discussion of, among other historical sources provided by Mr. Paige, the naturalization acts of 1790, 1795, 1802, and 1855 which were all jus sanguinis based (law of nations and American common law) and not jus soli based (English common law). These statutes are highly relevant in determining what the Founders and Framers meant by the “natural born Citizen” clause, for the early acts were passed by many members of the First and Third Congress who were intimately involved in the drafting and passage of the Constitution.
Judge Bent stated that the decision of Ankeny v. Governor of Indiana, 916 N.E.2d 678 (Ind.Ct.App. 2009) is the “most comprehensive decision” on the meaning of a “natural born Citizen” and as such discusses the “the historical basis for the use of the phrase.” As we saw above, Ankeny's reliance on Wong Kim Ark to expand the group of "natural born Citizens" to include children born in the United States to alien parents is misplaced. Additionally, there is not one word in the Ankeny decision that addresses the purpose for which the Founders and Framers included the “natural born Citizen” clause in the Constitution as part of the requirements to be eligible to be President and Commander in Chief of the Military. There is not one word in the decision which looks to what the Founders and Framers intended the clause to mean when they included it in the Constitution. What is also amazing is that the Ankeny court hardly even knew who Emer de Vattel was despite the historical record amply demonstrating the immense influence that Vattel had on the founding generation and beyond and as we have seen above the U.S. Supreme Court adopting his definition of a “natural born Citizen.”
In discussing Ankeny, Judge Bent said that “‘natural born Citizen’ is not dependent on the nationality of the parents but reflects the status of a person born into citizenship instead of having citizenship subsequently bestowed. The distinction is eminently logical.” But upon close examination, this distinction is not logical at all. This argument is tantamount to arguing that any person who is a “citizen at birth” is a “natural born Citizen.” This is fallacious reasoning called the fallacy of affirming the consequent. We know from the definition of a “natural-born citizen” provided by Minor and other historical sources and U.S. Supreme Court case law cited, that satisfying the definition means that one is necessarily a “citizen” from the moment of birth. But being a citizen from the moment of birth is a necessary condition of being a “natural born Citizen.” It is not a sufficient condition, for according to Minor v. Happersett, the definition also contains the two requirements of being born in the country to “citizen” parents. Hence, just showing that one was “a citizen at birth” only satisfies part of the definition which by the very nature of the definition is necessary but not sufficient. Here is an example of this fallacy: If someone is smart, then someone is a professor. Someone is a professor. Therefore someone is smart. This argument is not valid. It demonstrates the fallacy of affirming the consequent. The first premise does not state that if one is a professor one is smart. Rather, it states that being a professor is the consequence of or follows from being smart. So, being a professor does not necessarily mean that one is smart. So likewise, the definition of a “natural born Citizen” does not state that being “a citizen at birth” makes one a “natural born Citizen.” Rather, being “a citizen at birth” is the consequent of or follows from being a “natural born Citizen.” Being “a citizen at birth” does not prove that one is a “natural born Citizen,” for the other two conditions of being a “natural born Citizen” must also be proven. There is also case law and statutes which prove that simply being “a citizen at birth” does not make one a “natural born Citizen.” Wong Kim Ark and Rogers v. Bellei, 401 U.S. 815(1971) said that children born out of the United States to “citizen” parents are citizens at birth, but are made such by naturalization statutes of Congress and not the common law or even the Fourteenth Amendment. We know from a plain reading of these statutes that they only define “citizens of the United States” and not “natural born Citizens.”
So as we can see, Judge Bent has erred for various reasons in dismissing Mr. Paige’s ballot challenge against presidential candidate Barack Obama and Vermont Secretary of State.
Mario Apuzzo, Esq.
November 17, 2012
http://puzo1.blogspot.com
####
Copyright © 2012
Mario Apuzzo, Esq.
All Rights Reserved
Brooke Paige v. Barack Obama
By Mario Apuzzo, Esq.
November 17, 2012
Judge Robert R. Bent, Presiding Judge of the Vermont Superior Court, on November 14, 2012 dismissed the candidate Barack Obama Vermont ballot challenge of Paige v. Obama, Docket No. 611-8-12. He ruled that H. Brooke Paige does not have standing to bring the action, the court does not have jurisdiction, and his argument on the meaning of a “natural born Citizen” has no merit. The decision can be read at http://www.scribd.com/doc/113533939/VT-Paige-v-Obama-Et-Al-DeCISION-Vt-Super-Ct-Nov-2012 .
Mr. Paige filed his ballot challenge against both candidate Barack Obama and the Vermont Secretary of State, arguing that Obama should not be allowed on any presidential election ballot in Vermont because, being born to a U.S. “citizen” mother, but not also to a U.S. “citizen” father, he is not an Article II “natural born Citizen.”
I.
As to standing, Judge Bent ruled that Vermont has adopted the federal rule on standing which requires a litigant to satisfy both the requirements of Article III and its related prudential component. He explained that standing requires a litigant to show injury in fact, causation, and redressability. He concluded that Paige has not shown injury in fact. But Barack Obama has again won the general election. He now stands to win the Electoral College vote. Paige has adequately shown that his life, liberty, and property can be particularly injured by having to live under the authority and power of a person who may occupy the Office of President and Commander in Chief of the Military who may not be constitutionally eligible to be there in the first place for not being a “natural born Citizen.” Mr. Paige has adequately shown that the Founders and Framers required future presidents to be “natural born Citizens” to protect and preserve the nation. Hence, the clause is a national security measure designed to assure the safety of the nation. Needless to say, the “natural born Citizen” clause is intended to protect and preserve Mr. Paige and to provide for his safety and well-being. That the clause protects all Americans is no reason to deny Mr. Paige its protection in a legal action in which he seeks to have the courts enforce the clause.
Judge Bent did recognize that Vermont also has two statutes, 17 V.S.A. Sec. 2603(a)(3), which allows any legal voter to challenge an election after it occurs. He conceded that on its face, the statute does not limit itself to any particular election issue as the subject of an election contest. He also cited Sec. 2617 which provides: “In all cases for which no other provision has been made, the superior court shall have general jurisdiction to hear and determine matters relating to elections and to fashion appropriate relief.” But he distinguished these statutes and concluded that they only apply to activities occurring during the conduct of the election itself which could change the result of the election and not to presidential eligibility. But the statutes say no such thing and Judge Bent has written words into these statutes which the Vermont legislature did not write. Additionally, whether a candidate is eligible for the office he or he seeks does affect the conduct of the election and could surely change the result of the election. What could be more fundamental to the conduct of an election for any given office than whether a candidate is constitutionally eligible for the office he or she seeks? So, the legislature has specifically passed these two statutes which allow a voter such as Mr. Paige to challenge in the Vermont Superior Court a presidential candidate’s eligibility to be placed on the Vermont presidential election ballot and election to that office through the general election and the Electoral College.
Judge Bent also concluded that these Vermont statutes are no reason for the court to find that Paige has satisfied the requirement of prudential standing, which requires that a plaintiff’s claim is included in “the zone of interest protected by the law invoked.” He found that these statutes do not expressly allow a challenge by Mr. Paige to presidential eligibility and that to allow such a challenge in state court would produce “wholesale chaos and lingering uncertainty to presidential elections.” But such speculation is no reason to deny jurisdiction and to deny Mr. Paige a judicial forum for him to protect his constitutional rights. Our nation’s courts are more than capable to handle and coordinate complex legal matters. That the issue involves presidential eligibility is hardly a reason to conclude that our state courts cannot handle the matter. Moreover, given that the contested issue involves the presidential election, any state court decision on presidential eligibility would be fast tracked to the U.S. Supreme Court which would decide the matter for all the states. Hence, while the Vermont legislature has decided to confer standing upon Mr. Paige to bring his challenge to Obama in the Vermont state courts, Judge Bent has denied him that right.
II.
Judge Bent also concluded that the Vermont state courts or any state courts have no jurisdiction over the question of whether a presidential candidate is constitutionally eligible because for a state court to get involved in the matter could potentially create national chaos. But such speculation is no reason to deny jurisdiction and to deny Mr. Paige a judicial forum for him to protect his constitutional rights. As we saw above, our nation’s courts are more than capable to handle and coordinate complex legal matters and any state challenge would be fast tracked to the U.S. Supreme Court which would decide the matter for all the states. Finally, Judge Bent was not sure whether Congress in joint session under 3 U.S.C. Sec. 15 has the authority to address the issue of presidential eligibility which would make the matter a nonjusticiable political question. Hence, without any say from the courts (both state and federal given the standing rule and the requirements of jurisdiction that he imposes) or Congress, Judge Bent does not allow for any means for resolving under the rule of law any question of presidential eligibility in our constitutional republic.
III.
Standing and jurisdiction do not address the merits of a case. But Judge Bent also concluded that Paige’s argument as to what is an Article II “natural born Citizen” has no merit. Judge Bent erred just based on the text of the “natural born Citizen” clause. “It cannot be presumed that any clause in the constitution is intended to be without effect, and therefore such construction is inadmissible unless the words require it….” Marbury v. Madison. 5 U.S. 137, 174 (1803). Hence, a basic rule of constitutional construction is that every word in the constitution must be given meaning. The Constitution says "natural born Citizen," not "born Citizen." Judge Bent is therefore wrong simply on the constitutional text when he says that anybody who is born a citizen is a "natural born Citizen." There must be a reason the Framers added the word “natural” to “born Citizen.” The reason is that the clause is a word of art, an idiom, a unitary clause, which has a very specific fixed meaning. By adopting such a definition, Judge Bent has given the word “natural” no meaning and has confounded the proper interpretation of the clause by focusing on the result of being a “natural born Citizen” (born a citizen) rather than focusing on the word of art itself which has a very specific meaning. There is nothing about the clause which suggests that the word “natural” is surplusage and intended to have no effect. Hence, his interpretation “is inadmissible” and must be rejected.
Historical sources, case law of the U.S Supreme Court, and acts of Congress also demonstrate that Judge Bent has erred. Vattel at § 212. Citizens and natives, defined the “citizens” and the “natural-born citizens” thus:
“The citizens are the members of the civil society; bound to this society by certain duties, and subject to its authority, they equally participate in its advantages. The natives, or natural-born citizens, are those born in the country, of parents who are citizens. As the society cannot exist and perpetuate itself otherwise than by the children of the citizens, those children naturally follow the condition of their fathers, and succeed to all their rights. The society is supposed to desire this, in consequence of what it owes to its own preservation; and it is presumed, as matter of course, that each citizen, on entering into society, reserves to his children the right of becoming members of it. The country of the fathers is therefore that of the children; and these become true citizens merely by their tacit consent. We shall soon see whether, on their coming to the years of discretion, they may renounce their right, and what they owe to the society in which they were born. I say, that, in order to be of the country, it is necessary that a person be born of a father who is a citizen; for, if he is born there of a foreigner, it will be only the place of his birth, and not his country.”
Emer de Vattel, The Law of Nations, Section 212 (London 1797) (1st ed. Neuchatel 1758). While recognizing that Vattel's The Law of Nations "was a work of significant value to the founding fathers," Judge Bent refers to the phrase, “The natives, or natural-born citizens, are those born in the country, of parents who are citizens” as a phrase used only by Vattel. He said that simply because Vattel used the phrase, the phrase does not have any “constitutional significance.” But Paige provided to the court numerous historical and legal sources that demonstrated that after July 4, 1776, our nation adopted the law of nations model of citizenship and not that of the English common law. Judge Bent avoided any discussion of the naturalization acts of 1790, 1795, 1802, and 1855 which were all jus sanguinis (citizenship derived from parents) based and therefore followed the Vattel model. He also does not address cases like Minor v. Happersett, 88 U.S. 162, 167-68 (1875), where the unanimous U.S. Supreme Court adopted that phrase and jus sanguinis and held that the "natural born citizens," “[a]t common law, with the nomenclature of which the framers of the Constitution were familiar” were “all children, born in a country, of parents who were its citizens” and that at “common law,” “there have been doubts” whether we ever adopted jus soli (citizenship derived from the place of birth) citizenship. Judge Bent wrote as though Vattel is the only person ever to use the phrase when we know that the phrase was also adopted by the U.S. Supreme Court justices in The Venus, 12 U.S. 8 Cranch 253, 289 (1814) (C.J. Marshall concurring), Dred Scott v. Sandford, 60 US 393, 405 (1857) (J. Daniels concurring), and the unanimous U.S. Supreme Court in Minor, not to mention Inglis v. Trustees of Sailor’s Snug Harbor, 28 U. S. 99 (1830) and Shanks v. Dupont, 28 U.S. 242, 245 (1830) which adopted the same rule of partus sequitur patrem, i.e., children follow the condition of their parents which is jus sanguinis citizenship and not jus soli citizenship. See also Ex parte Reynolds, 20 F.Cas. 582, 5 Dill. 394, No. 11,719 (C.C.W.D.Ark 1879) and United States v. Ward, 42 F.320 (C.C.S.D.Cal. 1890) (cite and quote Minor’s Vattelian/American common law definition of a “natural-born citizen”).
Judge Bent said that Vattel’s use of “parents” in the plural does not have any "particular significance." Judge Bent said that “[t]hus far, no judicial decisions have adopted such logic in connection with this or any related issues.” But first, Vattel is not the only person to use the word “parents” in the plural, for the above cited U.S. Supreme Court Justices and case law also did. So Judge Bent actually told us that there is no “particular significance” to the U.S. Supreme Court’s use of the term “parents.” Second, Judge Bent failed to address the fact that at the time of the founding and until 1922 when Congress passed the Cable Act, a wife’s citizenship merged into that of the husband. Hence, “parents,” meaning both husband and wife, always had the same citizenship. Third, “parents” in the plural is nothing new to our citizenship and naturalization laws, for there are so many such statutes in our history that required both parents to be citizens in order for the child to gain any naturalization or immigration benefits. Fourth, Judge Bent accepted that because other cases were fortuitously decided before his, he is bound by those cases and relinquished his own independent thinking on the matter.
Judge Bent's reliance on the Fourteenth Amendment and U.S. v. Wong Kim Ark, 169 U.S. 649 (1898) to expand the group of "natural born Citizens" to include children born in the United States to alien parents is also misplaced. The Framers in Article II clearly distinguished between a "natural born Citizen" and a "Citizen of the United States." In the future, being a “Citizen of the United States” was not sufficient, for only a "natural born Citizen" could be President. The Fourteenth Amendment provides in relevant part:
"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." We can see from the plain text of the Fourteenth Amendment that it only addresses a "citizen of the United States," not a "natural born Citizen."
Wong Kim Ark explained:
“The real object of the Fourteenth Amendment of the Constitution, in qualifying the words, "All persons born in the United States" by the addition "and subject to the jurisdiction thereof," would appear to have been to exclude, by the fewest and fittest words (besides children of members of the Indian tribes, standing in a peculiar relation to the National Government, unknown to the common law), the two classes of cases -- children born of alien enemies in hostile occupation and children of diplomatic representatives of a foreign State -- both of which, as has already been shown, by the law of England and by our own law from the time of the first settlement of the English colonies in America, had been recognized exceptions to the fundamental rule of citizenship by birth within the country. Calvin's Case, 7 Rep. 1, 18b; Cockburn on Nationality, 7; Dicey Conflict of Laws, 177; Inglis v. Sailors' Snug Harbor, 3 Pet. 99, 155; 2 Kent Com. 39, 42.”
Wong Kim Ark, at 682. We can see that the amendment’s purpose was to exclude from basic membership in the United States, which it calls “citizen of the United States” and not “natural born Citizen,” certain children, i.e., those of American Indians, alien enemies, and diplomats. It was not designed to tell us who were included as Article II “natural born Citizens.” We have seen from Minor, as confirmed by Wong Kim Ark, that American common law did that.
Wong Kim Ark confirmed Minor’s American common law definition of a “natural-born citizen" not only when it cited and quoted Minor, but also when it recognized that Wong was a Fourteenth Amendment “citizen of the United States,” not an Article II “natural born Citizen.” Justice Gray told us twice of this distinction. The first time he said: “The child of an alien, if born in the country, is as much a citizen as the natural-born child of a citizen, and by operation of the same principle.' Page 22, note. This paper, without Mr. Binney's name, and with the note in a less complete form, and not containing the passage last cited, was published (perhaps from the first edition) in the American Law Register for February, 1854. 2 Am. Law Reg. 193, 203, 204. ” Wong Kim Ark, at 665-66. Later in his opinion, Justice Gray, in speaking about a child born in the United States to alien parents again said that an alien’s “child, as said by Mr. Binney in his essay before quoted, 'If born in the country, is as much a citizen as the natural-born child of a citizen, and by operation of the same principle.'” Id. at 694. It is critical that when he mentioned it for the second time, his sentence followed the Court’s conclusion which he based on how the colonial English common law held aliens in amity to have sufficient allegiance to the King to make his children born in the King’s dominion “natural born subjects,” that Wong was born “subject to the jurisdiction” of the United States. So twice, Justice Gray told us of the distinction between a child born in the country to aliens and a child born in the country to “citizen” parents. He explained that both are “citizens,” but only the latter is a “natural-born citizen.”
Hence, Wong Kim Ark interpreted the meaning of the Fourteenth Amendment’s “citizen of the United States,” not Article II’s “natural born Citizen.” As Minor instructs, the Founders and Framers had only one definition of a "natural born Citizen." It held that the "natural-born citizens," “[a]t common law, with the nomenclature of which the framers of the Constitution were familiar” were “all children, born in a country, of parents who were its citizens.” Minor v. Happersett, 88 U.S. 162, 167-68 (1875); U.S. v. Wong Kim Ark, 169 U.S. 649, 679-80 (1898) (citing and quoting Minor). It is this American common law (not English common law) definition which the Founders and Framers adopted at the time of the adoption of the Constitution that controls, not what the U.S. Supreme Court said in Wong Kim Ark about a child born in the United States to domiciled and resident alien parents being a "citizen of the United States" under the Fourteenth Amendment. In fact, Wong Kim Ark analyzed whether the law of nations, which is the basis of our American common law definition of a “natural born Citizen,” had any controlling effect on defining citizenship in our nation at the time that the Fourteenth Amendment was passed, not when the Constitution was passed. Hence, Wong Kim Ark was not concerned with the Founders’ and Framers’ view of what was a “natural born Citizen” and Article II, but rather with the Fourteenth Amendment. It is therefore error for Judge Bent to use the Wong Kim Ark decision to expand the class of people who can be held to be “natural born Citizens.”
In his cursory mention of Minor in Footnote 1, Judge Bent also conflated and confounded Minor’s use of the word “citizen” with “natural born Citizen.” He pointed out that Minor said that “there have been doubts” whether “children born within the jurisdiction without reference to the citizenship of their parents” were “citizens.” He added that Wong Kim Ark answered that question which Minor left unanswered. But then he also concluded that Wong Kim Ark defined who was a “natural born Citizen.” But if Wong Kim Ark answered the question left open by Minor, it did not define what a “natural born Citizen” was, but rather only what a “citizen” was. A careful reading of Wong Kim Ark shows that it recognized that Minor left open the question of who was a “citizen of the United States” under the Fourteenth Amendment, not who was an Article II “natural born Citizen.” For example, Wong Kim Ark said:
“That neither Mr. Justice Miller nor any of the justices who took part in the decision of The Slaughterhouse Cases understood the court to be committed to the view that all children born in the United States of citizens or subjects of foreign States were excluded from the operation of the first sentence of the Fourteenth Amendment is manifest from a unanimous judgment of the Court, delivered but two years later, while all those judges but Chief Justice Chase were still on the bench, in which Chief Justice Waite said: ‘Allegiance and protection are, in this connection’ (that is, in relation to citizenship),
‘reciprocal obligations. The one is a compensation for the other: allegiance for protection, and protection for allegiance. . . . At common law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children, born in a country of [p680] parents who were its citizens, became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further, and include as citizens children born within the jurisdiction, without reference to the citizenship of their parents. As to this class, there have been doubts, but never as to the first. For the purposes of this case, it is not necessary to solve these doubts. It is sufficient for everything we have now to consider that all children born of citizen parents within the jurisdiction are themselves citizens.’
Minor v. Happersett (1874), 21 Wall. 162, 166-168. The decision in that case was that a woman born of citizen parents within the United States was a citizen of the United States, although not entitled to vote, the right to the elective franchise not being essential to citizenship. The only adjudication that has been made by this court upon the meaning of the clause, ‘and subject to the jurisdiction thereof,’ in the leading provision of the Fourteenth Amendment is Elk v. Wilkins, 112 U.S. 94.” Wong Kim Ark, at 679-80. Here, we can see that Wong Kim Ark focused only on the Fourteenth Amendment, its “subject to the jurisdiction” clause, and its definition of a “citizen of the United States” when discussing The Slaughterhouse Cases, Minor, and Elk. It was not concerned with Article II and its meaning of a “natural born Citizen.”
Judge Bent stated that Wong Kim Ark concluded that the original framers obtained their model of citizenship from the English common law. While he told us by citing and quoting Wong Kim Ark what the English common law in England was on subjecthood, he did not present any evidence that the Founders and Framers adopted that English common law to define the new U.S. national citizenship. He concluded without citing to any evidence that “there is no apparent distinction between” a “natural born citizen” and a “natural-born subject.” He failed to discern that Wong Kim Ark, faced with having to interpret and apply the Fourteenth Amendment to determine whether Wong was a “citizen of the United States,” needed to decide who was a “citizen” under that amendment, not who was a “natural born Citizen” under Article II, and that the Court used the English common law as an aid in doing that and not to define an Article II “natural born Citizen.” He also failed to address Minor which in specifically defining a “natural-born citizen,” used a model of citizenship that was based on the law of nations which became American national common law and not the English common law. In this connection, he also avoided any discussion of, among other historical sources provided by Mr. Paige, the naturalization acts of 1790, 1795, 1802, and 1855 which were all jus sanguinis based (law of nations and American common law) and not jus soli based (English common law). These statutes are highly relevant in determining what the Founders and Framers meant by the “natural born Citizen” clause, for the early acts were passed by many members of the First and Third Congress who were intimately involved in the drafting and passage of the Constitution.
Judge Bent stated that the decision of Ankeny v. Governor of Indiana, 916 N.E.2d 678 (Ind.Ct.App. 2009) is the “most comprehensive decision” on the meaning of a “natural born Citizen” and as such discusses the “the historical basis for the use of the phrase.” As we saw above, Ankeny's reliance on Wong Kim Ark to expand the group of "natural born Citizens" to include children born in the United States to alien parents is misplaced. Additionally, there is not one word in the Ankeny decision that addresses the purpose for which the Founders and Framers included the “natural born Citizen” clause in the Constitution as part of the requirements to be eligible to be President and Commander in Chief of the Military. There is not one word in the decision which looks to what the Founders and Framers intended the clause to mean when they included it in the Constitution. What is also amazing is that the Ankeny court hardly even knew who Emer de Vattel was despite the historical record amply demonstrating the immense influence that Vattel had on the founding generation and beyond and as we have seen above the U.S. Supreme Court adopting his definition of a “natural born Citizen.”
In discussing Ankeny, Judge Bent said that “‘natural born Citizen’ is not dependent on the nationality of the parents but reflects the status of a person born into citizenship instead of having citizenship subsequently bestowed. The distinction is eminently logical.” But upon close examination, this distinction is not logical at all. This argument is tantamount to arguing that any person who is a “citizen at birth” is a “natural born Citizen.” This is fallacious reasoning called the fallacy of affirming the consequent. We know from the definition of a “natural-born citizen” provided by Minor and other historical sources and U.S. Supreme Court case law cited, that satisfying the definition means that one is necessarily a “citizen” from the moment of birth. But being a citizen from the moment of birth is a necessary condition of being a “natural born Citizen.” It is not a sufficient condition, for according to Minor v. Happersett, the definition also contains the two requirements of being born in the country to “citizen” parents. Hence, just showing that one was “a citizen at birth” only satisfies part of the definition which by the very nature of the definition is necessary but not sufficient. Here is an example of this fallacy: If someone is smart, then someone is a professor. Someone is a professor. Therefore someone is smart. This argument is not valid. It demonstrates the fallacy of affirming the consequent. The first premise does not state that if one is a professor one is smart. Rather, it states that being a professor is the consequence of or follows from being smart. So, being a professor does not necessarily mean that one is smart. So likewise, the definition of a “natural born Citizen” does not state that being “a citizen at birth” makes one a “natural born Citizen.” Rather, being “a citizen at birth” is the consequent of or follows from being a “natural born Citizen.” Being “a citizen at birth” does not prove that one is a “natural born Citizen,” for the other two conditions of being a “natural born Citizen” must also be proven. There is also case law and statutes which prove that simply being “a citizen at birth” does not make one a “natural born Citizen.” Wong Kim Ark and Rogers v. Bellei, 401 U.S. 815(1971) said that children born out of the United States to “citizen” parents are citizens at birth, but are made such by naturalization statutes of Congress and not the common law or even the Fourteenth Amendment. We know from a plain reading of these statutes that they only define “citizens of the United States” and not “natural born Citizens.”
Judge Bent said that “Mr. Paige has tendered a scholarly article authored by Attorney Mario Apuzzo of New Jersey United States
So as we can see, Judge Bent has erred for various reasons in dismissing Mr. Paige’s ballot challenge against presidential candidate Barack Obama and Vermont Secretary of State.
Mario Apuzzo, Esq.
November 17, 2012
http://puzo1.blogspot.com
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Mario Apuzzo, Esq.
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