-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.
Bob, be fair. Three times you have asked the same question. It is your question. It is your interpretation of the “rationale” that your question is based on. I never posed the question.
It most certainly would not be easier, or wise, for me to guess at the basis of another’s question. Please do not shift like that again: it is obvious when you do. Does your question have a foundation of not?
Bob:
Good luck with Kontort. I have tried on many occasions to get a Vattle Birther to analyze Wong Kim Ark, briefly, by section. No luck.
They are afraid of the case. That is why they run back in time to Minor v. Happersett. It is in their blood. It is instinctual, like a cat hissing at a dog. In the Ankeny case, the Vattle Birthers completely ignored WKA:
The Plaintiffs do not mention the above United States Supreme Court authority [WKA] in their complaint or brief; they primarily rely instead on an eighteenth century treatise and quotations of Members of Congress made during the nineteenth century. To the extent that these authorities conflict with the United States Supreme Court‟s interpretation of what it means to be a natural born citizen, we believe that the Plaintiffs‟ arguments fall under the category of “conclusory, non-factual assertions or legal conclusions” that we need not accept as true when reviewing the grant of a motion to dismiss for failure to state a claim.
Squeeky Fromm
Girl Reporter
Is this an easter egg hunt? Am I supposed to find what you think the rationale of Wong Kim Ark is? Wouldn’t it be easier for you to state what you think the rationale of Wong Kim Ark is?
Bob, have you located the exact quote yet?
Gorefan, I am appreciative that you are being fair to me. I am here for the topic at hand, despite the smears.
Does that mean that if Donofrio is right about Ogilvie, both Minor and WKA are affected by that decision? Or is it one and not the other?
“Many have a thorough misunderstanding of “citizen” and “natural born citizen” that was ESTABLISHED as LAW by the STATUTORY CONSTRUCTION of the Constitution.”
Where did you learn to write? You really make no sense.
“The only difference, insofar as CONSTITUTIONAL LAW is concerned, is whether or not a “person” is in conformity with the circumstances requisite of being a natural born Citizen for the purpose of “eligibility” for the Executive Offices.”
No, legal authorities decreibed two types of citizens, natural born and naturalized, when they were not talking about eligiblity.
“At the time of the writing of the Constitution the States had been in the practice of independently determining who were their citizens and upon the Adoption of the Constitution it fell on the Congress to make an uniform Rule of naturalization.”
Such is true. However, naturalization only applied to foreign born aliens. There was a debate that continued up until the 14th Amendment whether the states could define native born citizenship or whether the common law definition was incorporated into the Constitution. The latter position would prevail.
“Given that the Founders did NOT deem themselves as if natural born Citizens it is obvious that it was considered as an anticipated form a Citizenship occurring naturally by the course of events between a husband and wife who were Citizens themselves, (foundlings and bastards being considered within the naturalization laws separately in due course),”
Makes no sense at all. The founders did consider themselves natural born citizen and no one said citizen parents were required. You do realize that making assertions that you can’t back up with any authority is not going to convence anyone.
“The 1st Naturalization Act of Congress should give you a CLUE, a person born of Citizen PARENTS while abroad shall be CONSIDERED a natural born Citizen. In other words, as if they were not abroad. The 1795 repeal and rewording is the 2nd Clue, that along with jus sanguinis, jus soli is a requisite circumstance of being a natural born Citizen for Constitutional purposes.”
Again, you make no sense. The 1790 statute was merely copying English statutes which bestowed “natural born” status on foreign born British subjects for all intents and purposes. Nothing about these statutes changed the English common law rule for the native born and nothing about our naturlaization statutes changed the common law rule for our native born. According to the Supreme Court:
“So far as we are informed, there is no authority, legislative, executive or judicial, in England or America, which maintains or intimates that the statutes (whether considered as declaratory or as merely prospective) conferring citizenship on foreign-born children of citizens have superseded or restricted, in any respect, the established rule of citizenship by birth within the dominion. Even those authorities in this country, which have gone the farthest towards holding such statutes to be but declaratory of the common law have distinctly recognized and emphatically asserted the citizenship of native-born children of foreign parents. 2 Kent Com. 39, 50, 53, 258 note; Lynch v. Clarke, 1 Sandf.Ch. 583, 659; Ludlam v. Ludlam, 26 N.Y. 356, 371”
I know, you, a non-lawyer who cannot cite any legal authority to support your position, are right and the Supreme Court is wrong.
Patrick,
Well said.
Not all birthers are liars, though (although I agree with what you said about Leo–any birther lawyer is either dishonest or incompetent [Sorry Leo, sometimes the truth hurts… ;-)]), some of them are stupid and/or willfully ignorant due to confirmation biases that can sustain cognitive dissonance of biblical proportions. The one universal characteristic of birthers (in my opinion) is their bigotry against President Obama.
As an example, consider the latest post by slcraignbc. Clearly this person is unable to understand the law (whether due to lack of intelligence or willful ignorance–my guess is both), but I think he believes the crap he is spewing (and I doubt you could get him to say a single positive thing about President Obama…).
Komfort,
Since you are looking for what is dicta and what is holding in WKA, you need only look to Leo Donofrio’s statement above from the Ogilvie Et Al., Minors v. United States, 519 U.S. 79 (1996).
“Although we gave other reasons for our holding in Schleier as well, we explicitly labeled this reason an “independent” ground in support of our decision, id., at 334. We cannot accept petitioners’ claim that it was simply a dictum.”
Leo has used this statement as support for the belief that the Minor opinion on the term natural born citizen is not dicta. That Justice Waite defined the term as “an “independent” ground in support of our decision” and the term is therefore not dicta.
But this same argument can be made in WKA. When Justice Gray writes,
“It thus clearly appears that by the law of England for the last three centuries, beginning before the settlement of this country, and continuing to the present day, aliens, while residing in the dominions possessed by the crown of England, were within the allegiance, the obedience, the faith or loyalty, the protection, the power, and the jurisdiction of the English sovereign; and therefore every child born in England of alien parents was a natural-born subject, unless the child of an ambassador or other diplomatic agent of a foreign state, or of an alien enemy in hostile occupation of the place where the child was born.”
“III. The same rule was in force in all the English colonies upon this continent down to the time of the Declaration of Independence, and in the United States afterwards, and continued to prevail under the constitution as originally established.”
This reason is an “independent ground in support” of the decision and is therefore not dicta.
Many have a thorough misunderstanding of “citizen” and “natural born citizen” that was ESTABLISHED as LAW by the STATUTORY CONSTRUCTION of the Constitution.
The only difference, insofar as CONSTITUTIONAL LAW is concerned, is whether or not a “person” is in conformity with the circumstances requisite of being a natural born Citizen for the purpose of “eligibility” for the Executive Offices.
At the time of the writing of the Constitution the States had been in the practice of independently determining who were their citizens and upon the Adoption of the Constitution it fell on the Congress to make an uniform Rule of naturalization.
Given that the Founders did NOT deem themselves as if natural born Citizens it is obvious that it was considered as an anticipated form a Citizenship occurring naturally by the course of events between a husband and wife who were Citizens themselves, (foundlings and bastards being considered within the naturalization laws separately in due course),
That understanding is expressed in whole in the 14th when it is said that all persons born or naturalized are citizens and there it stops and does not broach the form of Citizenship expressed in A2S1C5, who are natural born Citizens by virtue of the circumstances understood by the Founders, persons born of Citizen parents, women obtaining the Citizenship of the husband upon marriage,
The Law is NOT a self reconciling system. The FACT that NO laws have been promulgated to reconcile the independence of a women’s citizenship from that of a husband does NOT modify the historical and Constitutional definition of natural born Citizen.
The 1st Naturalization Act of Congress should give you a CLUE, a person born of Citizen PARENTS while abroad shall be CONSIDERED a natural born Citizen. In other words, as if they were not abroad. The 1795 repeal and rewording is the 2nd Clue, that along with jus sanguinis, jus soli is a requisite circumstance of being a natural born Citizen for Constitutional purposes.
But it doesn’t fit your template of fundamental change so go on and continue to ignore the guaranteed Republican form of Guv’mnt under the Constitutional Rule of Law and cling to your hope & change in the chaos of public policy derived from pure democracy and I’ll watch as your chickens come home to roost.
OS,
It’s the sheer size of the ODS epidemic that’s disheartening–the only ones I see attacking President Obama based on the reality of what he has or hasn’t done are the left–everyone else (who opposes President Obama politically) has either bought into the copious right-wing propaganda or seems to be content not to denounce it because it helps their “side”. It’s easy to inoculate people against birtherism with facts (because the movement lacks both merit and competence [as well as class and a sense of shame]), but how do you fight all of the talking heads calling President Obama “communist”?
Komfort,
The fact remains that the US is not going to treat someone they consider one of their citizens as a foreign national–regardless of what passport they hold.
Ellen:
That is a great letter, and I saved a copy of it. There was no federal law because the issue was a matter of common law. What the Vattle Birthers do not get, is that the 14th Amendment moved this birthright natura born citizenship from common law, and from the 1866 Civil Rights Act to the 14th Amendment, where it would be safer and better protected. Much the same way the Bill of Rights did with many common law rights. From Wong Kim Ark:
From Section V of Wong Kim Ark:
The same Congress, shortly afterwards, evidently thinking it unwise, and perhaps unsafe, to leave so important a declaration of rights to depend upon an ordinary act of legislation, which might be repealed by any subsequent Congress, framed the Fourteenth Amendment of the Constitution, and, on June 16, 1866, by joint resolution, proposed it to the legislatures of the several States, and on July 28, 1868, the Secretary of State issued a proclamation showing it to have been ratified by the legislatures of the requisite number of States. 14 Stat. 358; 1 Stat. 708.
Squeeky Fromm
Girl Reporter
Leo Dissembling Donofrio is a liar, plain and simple. Unless he’s an unbelievably incompetent and ignorant lawyer (not to mention, not fluent in English), he knows that the Supreme Court can ONLY create binding precedent on an issue before it. Since there is no distinction between the voting rights of natural born citizens vice naturalized citizens, there is no need for the Supreme Court to create a binding precedent as to the definition of natural born citizen. Virginia Minor was suing for voting rights, NOT trying to run for president. Ergo, there is no need for the Supreme Court to rule on her natural born citizenship.
I don’t know WHY everyone who keeps bringing this issue up keeps leaving out the very next sentence, since it’s relevant to the discussion, but I’m at the end of my patience. Notice the next sentence: “It is sufficient for everything we have now to consider that all children born of citizen parents within the jurisdiction are themselves citizens.”
Notice…they are saying that all they need to know, for the purposes of this case, is that those born in the U.S. to citizen parents are CITIZENS! Not “natural born citizens.” Just “citizens.” Of course, they ARE natural born citizens, but for the purposes of this case, all they need establish is that Virginia Minor is a CITIZEN, without regard to what kind of citizen she is.
As for the citation itself that birthers dishonestly claim RESTRICTS the term “natural born citizen,” only someone who is not fluent in English or a liar would make such a claim. It reads, “…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.”
Notice it says “these were natives or natural born citizens…” It does NOT say, these were the ONLY natives or ONLY natural born citizens. Anyone who speaks English can tell you that lacking this qualifier, then “natural born citizen” is left often to the possibility that those born in other circumstances might qualify for this distinction. However, since apparently Minor was born in the U.S. to citizen parents, there was no need to settle the question any further. Virginia Minor was a U.S. citizen; that’s all they needed to know.
Finally, any restriction placed by the Supreme Court on the definition of the term “natural born citizen” would be unconstitutional. The power to define the terms of citizenship belongs to Congress and Congress alone.
Article I, section 8, clause 4 of the Constitution makes plain that the “Power To establish an uniform Rule of Naturalization” is strictly the function of Congress; there is no provision in the Constitution for either of the other branches to share in this function.
And does defining natural born citizenship belong under this function? The Supreme Court in Minor v. Happersett says it did:
“Under the power to adopt a uniform system of naturalization Congress, as early as 1790, provided ‘that any alien, being a free white person,’ might be admitted as a citizen of the United States…and that the children of citizens of the United States that might be born beyond the sea, or out of the limits of the United States, should be considered as natural-born citizens.”
Notice that last sentence. Congress is extending natural born citizenship to those born OUTSIDE the U.S. to citizen parents. Yes, the Naturalization Act of 1790 was superseded five years later by a different Act that didn’t use the term “natural born citizen,” but that doesn’t matter. SCOTUS when citing this law is NOT declaring it “unconstitutional.” On the contrary, they recognize this Act as under Congress’s “power to adopt a uniform system of naturalization,” including the portion of the Act that extended natural born citizenship to those born OUTSIDE the U.S.
The idea that Minor defined natural born citizenship fails so ignominiously under any type of scrutiny — linguistic, Constitutional, contextual — that it becomes impossible to believe that anyone who makes this claim could be only guilty of misunderstanding, and not deliberate mendacity.
Simply put, birthers who claim this are not “mistaken” or “misinformed.” They are LIARS!
I am still digesting Ballantine’s argument about the ratio decidendi of WKA being broader than the holding. My post starts off by equating ratio decidendi and holdings, I’m not so sure this is true anymore.
The best papers on ratio decidendi (especially one by Goodhart) are not available to those of us who don’t have access. 🙁 The first page, which can be viewed on JSTOR) looks like it’s just what I’m looking for.
Also, ratio decidendi is binding, so I need to reread WKA focusing on the ratio decidendi aspects.
I also need to determine the difference, if any, between native-born and natural-born citizens, WKA uses both terms.
Thinking about an analysis of WKA post.
slcraignbc said that because there were no federal laws regulating who was a US citizen at birth prior to the 14th Amendment: “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. “
That is clearly not true, as can be shown by this letter to the editor of the New York Times by the US Secretary of State, William L. Marcy, in 1854. http://query.nytimes.com/mem/archive-free/pdf?res=9B06E2DC153DE034BC4851DFB566838F649FDE (It is a PDF file so I am unable to cut and paste.)
Secretary of State Marcy was asked by a notary public in a letter to the editor of the Times whether children born of foreign parents in Connecticut and in New York were citizens and if so would the US State Department grant them passports. Marcy replied in another letter to the editor, which appeared in the same edition of the paper (I guess they liked to do that in those days) that not only were both children US citizens, but that they were Natural Born Citizens and eligible to be president.
I will try to be more specific, Bob. So we are on the same page, how inclusive is your take on the rationale of WKA. Is it five pages?
Will you post a quote of what you see as the entire rationale? I do not want to answer apples to an orange question.
I am curious about Nal’s take as well.
But you didn’t answer my question: What in the court’s rationale supports the notion that Wong Kim Ark was a citizen but not a natural-born citizen?
Komfort,
If you’re going to make straw men out of my arguments, please quote them so I can point out the logical fallacies that you are using.
Squeeky,
Your article about The Mouth of Falsehoods was interesting. You’re right, Mario better stay away from it… Regarding Ankeny and quieting the Vattelist cult, I’ve found that Madison’s quote (posted above) and referencing the citation of Vattel by the majority in Dred Scott work as well.
Bob, also I thank you for being nice.
I am assuming that an opinion chock full of the term “natural born” could have used that term one more time in the direct holding. They did not. I have not seen Nal’s final word on the two terms being made synonymous in a meaningful way. ie, in non-dicta language.
I am curious too.
SF, nothing that smacks of conspiracy theories about national figures and celebrities will surprise me any more.
Otteray Scribe:
You said: 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.
Well, “Dr. Squeeky” has already done some preliminary work in that regard. de Vattel Delusion Disorder and Cognitive Decompensation.
http://birtherthinktank.wordpress.com/2011/10/30/de-vattel-delusion-disorder-a-psychiatric-diagnosis/
The second one is a few articles later and is a Case Study of a Vattle Birther who tries to use Shakespeare’s Henry V to prove that neither Obama nor Herman Cain were natural born citizens. Really. I am NOT putting you on.
http://birtherthinktank.wordpress.com/2011/11/11/cognitive-decompensation-when-vattel-birthers-pay-the-piper-a-case-study/
Squeeky Fromm
Girl Reporter
aka Dr. Squeeky