-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.
President Obama’s site omits the historical reality of Britain granting Kenya’s independence. The site is otherwise accurate albeit incomplete. Again: Any possible allegiance President Obama had to England expired when he was 2, and any possible allegiance President Obama had to Kenya expired when he was 23 (at the latest).
As for Wong Kim Ark: What in the court’s rationale suggests that he was a citizen but not a natural-born citizen?
Ballentine, you switched gears and have been nice to me, I appreciate that. Slobberbongfest is a different story. He said the State department does not “recognise” something that, per their own site, they do. Look at the argument, i think you will agree with me. Also, of note, I made no assertion that the Dept of State defined Citizenship. I should not have to be on defense for something I did not say.
BTW, did I ever say Obama is not natural born? Please research 1 site; the one we are on.
Dr. Slarti, I agree on the ‘Obama Derangement Syndrome.’ It is so pervasive that I won’t be surprised if it appears in the new edition of DSM-V.
No known treatment, no known cure, and the duration is known to be for at least the term of office for a Kenyan, socialist, communist, Nazi, liberal, Muslim, Harvard educated guy who had the bad manners to be elected President of the USA by a landslide. And oh yes, did I mention he is Black?
Slarti and Ballantine:
Have you ever noticed that when you point out what the Ankeny Court said, that the Vattle Birthers get really quiet???
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
Plus, if that Philo-Publius person really was Kerchner, I bet he was not happy with this Squeeky Smackdown of his attorney:
La Bocca Della Falsita (The Mouth of Falsehoods)
http://birtherthinktank.wordpress.com/2011/11/16/la-bocca-della-falsita-the-mouth-of-falsehoods/
I managed to work Mario Apuzzo’s picture of La Bocca Della Verite into it. I bet he is just LIVID.
Squeeky Fromm
Girl Reporter
…2008…
Bob, you should have told Obama in 2007, before he had this written on his website:
” When Barack Obama Jr. was born on Aug. 4, 1961, in Honolulu, Kenya was a British colony, still part of the United Kingdom’s dwindling empire. As a Kenyan native, Barack Obama Sr. was a British subject whose citizenship status was governed by The British Nationality Act of 1948. That same act governed the status of Obama Sr.’s children.
Since Sen. Obama has neither renounced his U.S. citizenship nor sworn an oath of allegiance to Kenya, his Kenyan citizenship automatically expired on Aug. 4,1982.”
I thought it expired when he was 2.
When do get off the tangent and determine what is dicta in WKA?
“However, dual nationals owe allegiance to both the United States and the foreign country. They are required to obey the laws of both countries. Either country has the right to enforce its laws, particularly if the person later travels there.”
First of all , the state department does not define citizenship. It determines when it will intervene to protect our citizens. Secondly, “allegiance” is a complicated subject. It can mean one is required to obey traffic laws when travelling abroad, but in the field of public law it means one’s political allegiance,i.e., the ability to draft someone into one’s military, try them for treason or pretect them from all claims of foreign allegiance. Show me the instance when our state department has ever allowed a native born American citizen to be subject to the political allegiance of a foreign power unless they were permantently domiciled in such foreign power. Such has never been the position of our government or any principle we have recognized under public law.
Komfort,
The professor doesn’t choose to force people to stay on topic on this site. I personally participated in a massive threadjack that spanned at least 3 threads and consisted of (literally) thousands of comments. If someone is interested enough in the discussion to join it, then you don’t get to tell them what they can or cannot talk about. Given that you are a birther troll who has no intention of engaging in any discussion in good faith (my opinion), you should just be glad that it’s only your ideas that are being shown to be defective rather than your behavior.
“1st, you must agree that there is NO jus soli grant of Citizenship EXPRESSED in Statutes prior to the 14th, ergo, all ‘persons’ born as “citizens’ were necessarily born of a Citizen FATHER..”
No. It means that such persons didn’t need citizenship by statute just like in England. Justice Waite didn’t look to any statute to define who was natural born. He looked to the common law. Justice Gray didn’t look to any statute to define who was natural born, he looked to the common law. No legal authority in our history has ever said a native born person get’s his citizenship from a statute. Do you really not understand this? Cite one legal authority in the early republic who ever said one needed a citizen father. You cannot as there are none. You can keep saying you are right and the Supreme Court and every early legal authority is wrong all you want. No one cares.
“The goal of the 14th was to make “citizens’ of those that had previously been denied and once citizens, through the “collective naturalization provision of the declaratory born statement, their PRODIGY would become natural born Citizens with the passing of time, just as anticipated by the Founding Generation, who chose NOT to deem their selves natural born Citizens, but rather opted to follow the NATURAL and Common laws historical understanding as to how said class of citizens sprung from the seeds planted in a new “State”.”
You obviously have not read anything the 39th Congress said as no one said anything remotely similar to your gibberish. Seriously, admit it, you have not read anything any member of such Congress actually said. If you did, you would understand they were clarifying that the common law jus soli rule was our law and such was colorblind. Why not try citing some authority when you made these claims that our contrary to all our scholarship and court decisions. Have you found a single person who has ever said any native born person was ever “naturalized.” Could you not understand the citations i pointed out making clear naturalization could never apply to the native born? Do you just turn off your brain when you read authority that says you are wrong in everything you say?
Also, “for the record”: any allegiance President Obama may have had to England was lost when England granted Kenya independence (when he was two years old). And any allegiance President Obama may have had to Kenya was lost (when he was 23 at the latest) under the terms of Kenyan Constitution then in effect
So this “dual allegiance” concern is entirely hypothetical.
“The U.S. Government recognizes that dual nationality exists but does not encourage it as a matter of policy because of the problems it may cause. Claims of other countries on dual national U.S. citizens may conflict with U.S. law, and dual nationality may limit U.S. Government efforts to assist citizens abroad. The country where a dual national is located generally has a stronger claim to that person’s allegiance.
However, dual nationals owe allegiance to both the United States and the foreign country. They are required to obey the laws of both countries. Either country has the right to enforce its laws, particularly if the person later travels there.Most U.S. citizens, including dual nationals, must use a U.S. passport to enter and leave the United States. Dual nationals may also be required by the foreign country to use its passport to enter and leave that country. Use of the foreign passport does not endanger U.S. citizenship.Most countries permit a person to renounce or otherwise lose citizenship.”
http://travel.state.gov/travel/cis_pa_tw/cis/cis_1753.html
Some things are tough to prove.
slcraignbc,
You’re assuming the the 14th Amendment changed the law rather than extending existing law to the former slaves. Please show us an example of two white people born under the same circumstances before and after the 14th Amendment who were treated differently under the law (which you claim has changed). If you can’t do that, then your argument isn’t rational (don’t worry–we already knew that…).
I thought we were supposed to research holdings, dicta, and stare decisis for the purposes of this thread.
No wonder Otreray scribe thinks this OS a birther thread; you are leading him astray.
Squeeky,
That’s what happens when someone comes to a conclusion and then sets about “proving” it–it doesn’t work nearly as well as the methods you suggest, does it?
Komfort,
The US department of State said the President Obama was a US Citizen (and there is no evidence he ever naturalized, so he must be natural born) while investigating for his father’s visa request. Regarding Madison–the US doesn’t recognize dual citizenship. If they consider you a US citizen, they will not treat you as a foreigner (even if you hold a foreign passport). We don’t ask the rest of the world who they will let us elect to the presidency–we decide who we consider eligible–those born under the jurisdiction of the United State. Like President Obama.
ballantine says;
“You don’t understand that naturalization statutes are just for persons who are not native born. No statute existed prior to 1866 conferring citizenship on persons born in the United States because such were citizens by operation of the Constitution, first in the natural born citizenship clause and then the 14th Amendment. Today’s statute just restates the 14th Amendment which of course Congress has no power to change. No court in our history has ever said someone born on our soil is a citizen by virtue of statute. In fact, according to our courts, “naturalization” by definition only applies to the foreign born:….”
Now, you are getting close but the statement requires additional analysis in light of the status of Constitutional Law from the time of Adoption forward.
1st, you must agree that there is NO jus soli grant of Citizenship EXPRESSED in Statutes prior to the 14th, ergo, all ‘persons’ born as “citizens’ were necessarily born of a Citizen FATHER, (women being “assumed” as the same citizenship as her husband) and if born to a ‘alien’ father remained as an alien until the Father naturalized or the child reached the age of majority and naturalized in their own right.
So the 1st circumstance is the Birthright benefit of Citizens and the 2nd the means of acquiring citizenship through naturalization.
Secondly in order to Amend Article II Section I Clause V it would be necessary to say so in words or words that would REQUIRE it.
I find NO such words or REQUIREMENT in the 14th Amendment.
The goal of the 14th was to make “citizens’ of those that had previously been denied and once citizens, through the “collective naturalization provision of the declaratory born statement, their PRODIGY would become natural born Citizens with the passing of time, just as anticipated by the Founding Generation, who chose NOT to deem their selves natural born Citizens, but rather opted to follow the NATURAL and Common laws historical understanding as to how said class of citizens sprung from the seeds planted in a new “State”.
So, although you are approaching a reasonable understanding of the LAWS under the Constitution as they existed and exist, still a tad more critical thinking is demanded.
Komfort
“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.”
Here is a little research for you to consider:
“Therefore every person born within the United States, its territories or districts, whether the parents are citizens or aliens, is a natural born citizen in the sense of the Constitution, and entitled to all the rights and privileges appertaining to that capacity.” William Rawle, 1826, “A View of the Constitution of the United States”
Alright! We are back to resolving dicta.
Nal, will you please double check BFF’ work?
Thanks again, Nal.
Otteray Scribe,
Alas, there are currently no know drugs to help control Obama Derangement Syndrome–a malady from which all birthers (and most on the right, it seems) suffer. Milder forms can be recognized by the victim labeling the president as “liberal”, “progressive”, or “socialist”; in more severe cases “communist” or even “nazi”; and in the most severe cases present as birthism.
Komfort,
No, there isn’t anything to stop a US-born child of OBL from being a natural born citizen–except the fact that President Obama put a bullet in his head so he wont be having any more children. However, there are many other safeguards that would prevent such a person from becoming POTUS…
What did the US Department of State, circa Obama’s birth, have to say? Has Madison rendered their Policy, or lack thereof, moot? Has Madison nullified all dual citizens of their second allegiance?
Powerful stuff.
I will venture back when BFF posts something, or when Nal is done thinking about WKA’s dicta.
Blame the framers for not having the forsight to think of al queda. Such is the problem with strict originalist interpretation as obviously the world has changed. Madison, for eexample, didn’t think the Constitution or the Law of Nations allowed deportation of aliens from nations were are not at war with.