-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.
NAL:
Here is what I was taking about earlier about determining the meaning of natural born citizenship being necessary to the 14th Amendment considerations.
“While the question before the Supreme Court was, what constitutes citizenship of the United States under the Fourteenth Amendment, still the peculiar phraseology of the citizenship clause of that Amendment necessarily involved the further and controlling proposition as to what that clause was declaratory of; whether it was intended to be declaratory of the common-law or of the international doctrine.”
Of course the “common law” was natural born citizenship.
Squeeky Fromm
Girl Reporter
So, it does not raise the question of why they would change it?
Do you think they wrote that without the advice of a Constitutional scholar?
Nal:
You may find this of interest. It is an 8 page article from the American Law Review of 1898 concerning Wonk Kim Ark.
http://books.google.com/books?pg=PA555&lpg=PA555&dq=law+review+articles+wong+kim+ark&id=_kgZAAAAYAAJ&ots=0VY-iUaXIu#v=onepage&q=law%20review%20articles%20wong%20kim%20ark&f=false
I did an Internet Article on it.
Squeeky Fromm
Girl Reporter
PLUS: I think you can pick “Plain Text” on this one, and then you can cut and paste. Being this close in time to the decision, it may give you some extra perspective.
Squeeky Fromm
Girl Reporter
“I will add this. If so much of the WKA opinion was rationale, and it is so convincing that even a caveman should understand it, why did this get removed from the original “fight the Smears website, and get replaced with what I posted earlier for Bob?”
Do you really think Obama or a Constitutional scholar was editing his website?
“Nowhere does the Court of Appeals for Indiana claim that they’re following a binding precedent. The court does not use the word “holding” to describe any of WKA’s citations.
Just saying.”
Such is true. Ankeny does no analysis on whether Minor or Wong Kim Ark are dicta or precedent. Probably because lower courts follow Supreme Court dicta like it is precedent.
I will add this. If so much of the WKA opinion was rationale, and it is so convincing that even a caveman should understand it, why did this get removed from the original “fight the Smears website, and get replaced with what I posted earlier for Bob?
“Lie:
Obama Is Not a Natural Born Citizen
Truth:
Senator Obama was born in Hawaii in 1961, after it became a state on August 21st, 1959. Obama became a citizen at birth under the first section of the 14th Amendment
“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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” “
They should have left that statement in force and provided the rationale. After all it is a lawyer running for President.
I wonder why they changed it?
“If Leo is right then Minor was precedent that was overturned by WKA.”
Interesting…So what part of the holding will be overturned?
Anyway, can’t wait for Nal’s conclusion on WKA.”
Leo can only be right that Minor was precedent with repsect to native born children of citizens being natural born. There is no way on earth anything Minor said about native born children of aliens can be precedent as Justice Waite expressly tells us the status of such persons were not before the court and there is really no way to pretend that they were. Of course, Minor says nothing about children of aliens except someone, somewhere had some doubt about their citizenship without telling us what those doubts were or what kind of citizenship it was talking about. Again, it is hard to believe that on the subject of citizenship of children of aliens, people cite a case that expressly declines to address the status of children of aliens.
Some interesting quotes from the Ankeny decision:
Key word: “guidance”
Key word: “interpretation”
Nowhere does the Court of Appeals for Indiana claim that they’re following a binding precedent. The court does not use the word “holding” to describe any of WKA’s citations.
Just saying.
The Ankeny court cited pages 653 through 663 of volume 169 of United States Reporter. In doing so: the Ankeny court, in essence, restated Wong Kim Ark: The phrase “natural-born citizen” is not defined by the U.S. Constitution; the U.S. Supreme Court therefore looked to English Common Law to determine its meaning; doing so revealed that a natural-born subject was someone born in the England; therefore, someone born in the United States was a natural-born citizen; because Wong Kim Ark was a natural-born citizen under the U.S. Constitution, he necessarily also was a U.S. citizen; the law preventing him from becoming a U.S. citizen was accordingly unconstitutional.
The Ankeny concluded by ruling if President Obama was born in the United States, then he therefore is a natural-born citizen. Because President Obama is a natural-born citizen, appellants failed to state a claim in its suit.
Kontort:
Mr. Soros says in the paper I signed that I am a “Independent Contractor” and I guess that is true for the rest of us, too. I have to Indemnify him or something, and not tell anybody about the Contract. Which on page 17 it says just the opposite “Nothing herein shall be construed as a contract between the parties.” Plus, the Venue is someplace called Astana, Khazakhstan which I guess is in Kansas???
Sooo, I am guessing we each speak for ourselves. Now what exactly is it that you want???
Squeeky Fromm
Girl Reporter
“Establishing her citizenship was required before they could address the issue of whether Mrs. Minor had the right to vote.”
Nonsence. The Missouri Supreme Court addressed the same question and didn’t establish here citizenship. It simply noted that her citizenship was conceded by defendant nad hence was not at issue. There are a multitude of cases where the question before the court was whether a citizen had a certain right or not. Unless citizenship was contested and the court decided to address the citizenship issue, the question of citizenship was not before the Court. In Hamdi v. Rumsfled the question was whether a citizen could be detained as an enemy combatant. Under your logic, the court would have had to determine if Hamdi was a citizen before address the detention issue. However, since the government did not contest his citizenship, the court did not address citizenship simply presuming he was a citizen and proceeding to answer the question on detention which is the question the court agreed to review. No court needs to address conceded issues not put before it.
Patrick J. Colliano
“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.”
The Court established Mrs. Minor’s citizenship by defining the “class” of natural born citizens as those born in the U.S. to parents who were citizens. By recognizing Mrs. Minor as a member of the class of persons who were natural born citizens, the Court deemed her a U.S. citizen. Establishing her citizenship was required before they could address the issue of whether Mrs. Minor had the right to vote.
“If Leo is right then Minor was precedent that was overturned by WKA.”
Interesting…So what part of the holding will be overturned?
Anyway, can’t wait for Nal’s conclusion on WKA.
Gorefan, I like that!
Let me stew on it, though.
…Ankeny…
A whole thread string is dedicated, with the exception of the insults and unwarranted birther accusations, to distinguishing dicta from holding.
You ask a question that is based on controversial statements in WKA. (I say controversial because we have not seen Nal’s conclusion.)
You cannot point to what you believe is in fact the rationale, so I am supposed to set myself up for the tear down by making up your mind for you?. You say it is there, show it.
Queefy, are you speaking for Bob? Bob, is Queefy speaking for you?
Bob, is the entirety of the “rationale” in WKA the quoted material in Aneky? Or will there be more after I look into Aneky?
In The Longest Yard a play like that would be called “incidental damage after the ball has been blown dead.” So please commit.
Komfort,
“Or is it one and not the other?”
If Leo is right then Minor was precedent that was overturned by WKA.
I repeat the same question because you do not answer a straightforward question in a straightforward manner. So here’s another:
In Ankeny, the Indiana Court of Appeals analyzes Wong Kim Ark, and from that analysis, concludes the appellant failed to state a claim because under Wong Kim Ark birth in the United States is sufficient for natural-born citizenship.
Did the Ankeny err in its reading of Wong Kim Ark‘s rationale? If so, how?
The Ankeny decision:
http://www.in.gov/judiciary/opinions/pdf/11120903.ebb.pdf
Kontort:
Read my stuff above. I have even provided a Motion for Reconsideration which sets forth my rationale why the language is NOT dicta. As far as PROVING that ALLEGED dicta is holding, I simply refer you once more to Ankeny v. Governor:
http://birtherthinktank.wordpress.com/the-case-the-two-citizen-parent-birthers-just-hate/
Read that, and notice how much comes from Wong Kim Ark. I have been madly googling for “The International Court of Dicta”, “The Dicta Police”, Dicta for Dummies”, and “ANSI Standards for Dicta” without any success.
Sooo, I am going with the 3 appeals court level judges citing the language.
Squeeky Fromm
Girl Reporter
Come on Queefy, you cannot point to any statement I have made here that claims Obama is anything less than a natural born citizen. I am looking at a group that is having so much trouble proving dicta is holding, the site host, who is being a helluv a lot more fair than you guys, is now looking to “pay sites” to reach a conclusion.
Why don’t you and BFF post the 2 or 3 sites for Nal, so he can shorten his search?
The topic is dicta.