-Submitted by David Drumm (Nal), Guest Blogger
Holdings, or ratio decidendi (Latin for “the rationale for the decision), are those parts of a court’s opinion that are binding on lower courts and later courts. This binding is referred to as the doctrine of stare decisis which provides hierarchical (vertical) and temporal (horizontal) continuity throughout the judicial system. Obiter Dicta (Latin for a statement “said in passing”), or dicta, are those parts of a court’s opinion that are not binding on lower courts and later courts. Dicta may suggest an interpretation of the law that may prove useful in future cases.
Distinguishing holdings and dicta is sometimes difficult and in some court opinions, intentionally so. Sub-categories of dicta, such as judicial dicta, and their different levels of authority, make the determination even more perilous. Dissenting opinions are always considered dicta.
Vertical stare decisis refers to the power of higher courts to bind the decisions of lower courts. All courts are bound by vertical precedent to follow the holdings in the decisions of the Supreme Court. Vertical stare decisis is generally considered absolute.
Horizontal stare decisis refers to the power of a court to bind itself. The Supreme Court while not bound by its prior decisions, does give them “substantial weight” in deliberations. There is a strong presumption that prior judicial articulations of the law are correct and generally should be followed. Horizontal stare decisis preserves a stable doctrine and prevents cycling.
While “we hold that …” or “the rule is …” are frequently giveaways to holdings, it is no guarantee in the holdings/dictum debate. In United States v. Rubin (1979), J. Friendly, in a concurring opinion, wrote:
A judge’s power to bind is limited to the issue that is before him; he cannot transmute dictum into decision by waving a wand and uttering the word “hold”.
Consider the example found in Minor v. Happersett (1875), a Supreme Court case dealing with the constitution of the State of Missouri that ordains: “Every male citizen of the United States shall be entitled to vote.” The following passage is from J. Waite’s opinion:
The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. 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 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.
Portland Examiner contributor Dianna Cotter claims the reference to the natural-born citizen clause in this passage is part of the holding. The Wikipedia entry correctly identifies this reference as obiter dictum.
H/T: Legal Theory Lexicon, Judith M. Stinson, Michael Abramowicz and Maxwell Stearns, Robert G. Scofield.
Kontort and Mrjr101:
You asked for some dicta from WKA, sooo here is you some:
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.
PLUS, I am not afraid to double-check myself on stuff. I also do not mind asking for directions if I am out driving and can’t find something. Perhaps if you Vattle Birthers double-checked yourselves once in a while, you wouldn’t be all lost and stuff on cases like Minor v. Happersett. For example, if you think the case was a precedent on natural born citizenship, you could have just double-checked yourself with Ankeny v. Governor where the court said about Minor v. Happersett:
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.
Id. at 167-168. Thus, the [Minor]Court left open the issue of whether a person who is born within the United States of alien parents is considered a natural born citizen.12
See! If you had double-checked yourself you would not have gone off on the wild goose chase.
Squeeky Fromm
Girl Reporter
Sorry Ellen. I am missing your point. The authorties you sight correctly state the common law rule that was in place until 1870 when it was modified to allow children of aliens to denounce their allegiance at majority. This is not the law today and I am not sure when it changed.
Are members of al qaeda “foreign diplomats”?
Komfort,
It means that President Obama’s allegiance to England (in the eyes of the English), is not relevant to his allegiance to the United States.
In other words:
President Obama was born in the US which is sufficient ascertain his allegiance. We don’t need to go any further–and I’m not the one saying so, James Madison is. Thus the Vattelist position is that the Father of the Constitution didn’t understand citizenship–and they come to this conclusion based on the writings of an incompetent translator a decade after the Constitution was ratified. Is in any wonder that every rational person aware of these arguments thinks that they are idiotic?
Do those medications help “birther thread” hunters? Why are you commenting? Obsessed?
If england claimed the allegiane of any American citizen while they were in England all we could do is file a diplomatic protesty or threaten war. Indeed, both ocurred including a real shooting war. We have treaties dealing with some of these issue.
For all the birthers out there, of every persuasion. There are medications for OCD.
Slartibartfast, does that mean the US could not do anything to stop Obama’s allegiance to the crown, that his birthright natural born subjecthood bestowed upon him?
Ballantine.
I was referring to this quotation from Blackstone:
“The children of aliens, born here in England, are, generally speaking, natural-born subjects and entitled to all the privileges of such. In which the constitution of France differs from ours; for there, by their jus albinatus, if a child be born of foreign parents, it is alien.” http://www.lonang.com/exlibris/blackstone/
(And the minor exceptions referred to in “generally speaking” refers to the children of foreign diplomats.)
The WKA ruling also quoted this:
“Lord Chief Justice Cockburn, in the same year, reviewing the whole matter, said:
By the common law of England, every person born within the dominions of the Crown, no matter whether of English or of foreign parents, and, in the latter case, whether the parents were settled or merely temporarily sojourning, in the country, was an English subject, save only the children of foreign ambassadors (who were excepted because their fathers carried their own nationality with them), or a child born to a foreigner during the hostile occupation of any part of the territories of England. No effect appears to have been given to descent as a source of nationality.”
It would help if your BFF would highlight the non-dicta. You could then post all the relevant passages.
Up until now, I thought this could be resolved by “reading 2 or 3 cases” and “doing a little research”. I guess we really do get by with a little help from our friends.
“It would help if your BFF would highlight the non-dicta. You could then post all the relevant passages.
Up until now, I thought this could be resolved by “reading 2 or 3 cases” and “doing a little research”. I guess we really do get by with a little help from our friends.”
I think we need more help from the BFF after all.
There is no rule that the chain was borken by remouncing citizsenship. Foreign nations could have any rule that they wanted with respect to descent. Foreign allegiance or citizenship was irrelevant to Justice Gray’s decision in WKA so I am not sure why you say it is pivital.
With respect to Ellen, do you mean with respect to a rule of descent in England? England in the 18th century passed 3 different statutes that made children of British subjects “natural born subjects” for all intents and purposes. Such persons were not treated as native born subjects in that they could not hold elected office and generally were not treated as British subjects outside of England other than perhaps for commerical purposes. Imagine Isreal bestowing Isreali citizenship on all American jews. Such would mean that such persons would be given the rights of Isreali citizens if they go to Isreal. Such citizenship would have no effect inside the United States unless the United States would consent to it.
Sallyven,
Every sovereign nation has the sole right to determine to whom it extends the benefits of citizenship (except the US in the minds of ignorant birthers). If, say, Spain decides that only people born in the US of French parents are Spanish citizens and treats all of the people within its borders accordingly, that is its right as a sovereign nation. France doesn’t have any say about it. Likewise, no British law has anything to do with determining eligibility for the presidency of the United States! The very basis of Vattel birtherism is founded in this unAmerican lunacy based on a mistranslation of a Swiss philosopher writing in French that wasn’t even available until 10 years after the Constitution was ratified.
http://www.obamaconspiracy.org/bookmarks/fact-checking-and-debunking/the-translation-of-vattel-from-the-french/
People in Obama’s situation are dual citizens at birth presently, as well as in the path.
The multi generation allegiance chain is broken by the first person to renounce citizenship to that nation. Once this is done, there are no legitimate claims to unborn future generations.
That is a pivotal component of WKA. Wong’s parents were disallowed the ability to break the chain, if you will. The court recognized the absurdity of the Exclusionary Act, and allowed the chain to be broken because their permanent domicile, and employment ,seemed satisfactory.
If you do not wish to break this chain, then your children will suffer.
BTW, is Ellen right, Ballentine?
Plus, on this dicta stuff, I asked my BFF Fabia Sheen, Esq, again this morning and she said that judges are NOT One L’s, and they don’t have to follow “IRAQ”(???) when they write their decisions. She said on a long decision like Wong Kim Ark, they are going to do findings and holdings all through the case. She said that they don’t have to save them all up and put them all at the end sooo that the Professor will give them points for form. And that this was particularly true back in 1898.
She said that on a case like Wong Kim Ark, you may have to read it several times, with a yellow highlighter, to understand how it all ties together. And, that the stuff I read to her from above was NOT dicta. That it was highly unlikely that 3 appeals court level judges would cite dicta at length in their decision. (The Ankeny v. Governor judges)
She also said that dicta is NOT “everything in the case that isn’t the holding.” She also said the dissent is NOT dicta. It’s the dissent. And that dicta is off hand remarks about stuff not related to the case or clearly un-necessary and un-related to the holding.
I made her read Wong Kim Ark a few months ago to help explain stuff to me (because she hates all this Birther stuff). Even she had to read the case a few times to get it all, and she is very smart. She said that there were entire sections of the seven section case which dealt the issues the Court found relevant, and that 2 of those 7 sections dealt with natural born citizenship as existed in English common law, and in American law.
Because interpretation of the 14th Amendment required an understanding of how the law came to be, and whether it was declaratory of old law, or a brand-spanking new law, the determination of natural born citizenship was necessary.
I hope this help.
Squeeky Fromm
Girl Reporter
A discussion of partus sequitur patrem (as it relates to President Obama):
http://nativeborncitizen.wordpress.com/2010/01/25/mario-apuzzo-and-the-partus-sequitur-patrem-argument/
Ellen, please read Ballentine’s 10:47, and dispute that with him. I was repeating his assertion.
I would appreciate it if you would post the non-dicta portion of WKA that separates the natural from the born, or was it the born from the subject. That might settle this issue.
“But countries also have the right to bestow citizenship on the children of their citizens, no matter where they are born…wasn’t this the idea pushed for McCain?”
There is no rule on what persons they could bestow the rights of citizenship on. European nations bestowed it for 2 or 3 generations from descent and could have made it 5 or 6 or 7 if they wanted to. Such is the municipal right of every nation. Doesn’t mean saw law has any effect in the United States or under international law. People in Obama position in 1878, on US soil with a British father, was a dual citizen in the sense that if he went back to England, and only if he went back to England, he would have the municipal rights of a British subject. While in the United States England would not insist he owed allegiance to England and, even if he went back to England, the United States would still claim that he owed his sole political allegiance to the United States. No one said such dual citizenship relevant to anyone’s citizenship status or eligiblity to be President. Woodrow Wilson was such a dual citizen. Andrew Johnson probably was though we are not certain where his father was born. Again, in 1868, it was reported to Congress that a majority of our native born citizens were such dual citizens.
Komfort said: “WKA held that natural born citizen and natural born subject mean the same thing.”
NO it didn’t. It said that the Natural Born part of Natural Born Citizen means the same thing as the Natural Born part of Natural Born Subject. It also said that in general subjects and citizens are the same, but obviously laws change and if the British or the US changes its laws on citizenship, the requirements for citizenship will differ.
Re: “A child born overseas to British lineage is a natural born subject. A child born overseas to American lineage is not a natural born citizen, unless a non-binding resolution says othewise.
I was not aware that this is the case in Britain now. However, it certainly was not the case when the Constitution was written. At that time Natural Born referred to birth within the jurisdiction, mainly meaning “in the country” but also including other areas dominated by the British crown.
A question to those who may understand the legality of a document such as the Constitution. Their is a term or a status defining such a proculmation in legal terms such that the document must be construed in only just such a fashion in order to be acceptable to other entities in presentation. Just something thats been gnawing at me since all of this concern, I think it was in Elementary School since and can’t seem to remember or find it on the internet. Thanks.
Komfort, interesting that this same State Department, when addressing the security clearance of employees and contractors, is in fact very interested in the status of dual citizenship, noting that such a status may find an application rejected?
I do respect your desire to stay on topic. I was making the point that sometimes there is the need to step back and use a little common sense, even if evaluating whether a portion of a holding is dicta or precedent. After all, couldn’t either be simply a restatement of such common sense?
This is why there is such an outcry against “birthright citizenship” by many of us–such an idea flies in the face of logic, especially when one reads the history of our founders’ notions of “consent.”