-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, perhaps Tribe and Olson were wrong in their analysis. What do you believe to be true?
Tribe and Olson wrote that Wong Kim Ark explains the sources that may be referenced when defining terms not expressly defined in the U.S. Constitution: the context in which those terms are used; statutes enacted by the First Congress; and the common law at the time of the founding (i.e., English Common Law).
After examining those sources, they concluded McCain was a natural-born citizen (and, implicitedly, President Obama as well).
http://www.scribd.com/doc/25457698/The-Tribe-Olson-Natural-Born-Citizen-Memo
mrjr101,
He was born a citizen by naturalization statute. A power granted by the constitution to the congress.
I was wondering If McCain status is or isn’t controlled by the 14th A or A2S1C5 (Well Established English Common-Law in it’s root). If so, then McCain would be deemed a “natural born subject” by operation of which principle?
mrjr101,
MvH with emphasis added;
“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 [p168] parents.AS TO THIS CLASS THERE HAVE BEEN DOUBTS, but never as to the first. FOR THE PURPOSE 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.”
1. The court affirmed and defined a class of citizenship (A2) that was doubtless.
2. If this is a valid holding, then SEN McCain fails in his eligibility for presidential office due to his foreign birth (i.e. “all children born in a country”).
4. The MvH court could have lumped 14th “born” with A2 “natural born” and remarkably regarded them as separate and distinct by not doing so.
4. Incidentally, hopefully it is noted that WKA specifically and solely referenced the 14th in its consideration of what class of citizen is considered “born” without overruling the opinion of the earlier MvH.
5. “For the purpose of this case” and “sufficient” emphasis is noted with regard that Minor was born in United States to parents who were American citizens and undoubtedly a citizen entitled to certain rights.
So we don’t know if McCain fit into WKA’s guidance?
MvH:
“The question is presented in this case, whether, since the adoption of the fourteenth amendment, a woman, who is a citizen of the United States and of the State of Missouri, is a voter in that State, notwithstanding the provision of the constitution and laws of the State, which confine the right of suffrage to men alone.”
“There is no doubt that women may be citizens. They are persons, and by the fourteenth amendment “all persons born or naturalized in the United States and subject to the jurisdiction thereof” are expressly declared to be “citizens of the United States and of the State wherein they reside.””
The very next sentence with emphasis added, “But, IN OUR OPINION, it did not need this amendment to give them that position.”
Hmm…didn’t need the 14th to determine her citizenship. Interesting, no? And how does the court go about defining her citizenship which is integral to answering the question before the court (see first paragraph)?
Gee, it shouldn’t be a surprise that later courts would hark back to this particular citizenship holding (i.e. RE Lockwood and WKA).
Tough to say. Natural born subject is synonymous with natural born citizen except when it is not synonymous. Leave it to the Brits.
Komfort,
So that means that A2S1C5, 14A, controlled McCain’s birth status also? Or not?
English common law controlled McCain’s birth status.
gorefan said:
“I can answer that but first answer a question for me.
Does the Minor decision limit the class of natural born citizens to those born in the country to two citizen parents?”
Ok, sure, I’ll give you a pass even though I asked first. Why not.
It is an affirmative definition of that class per A2S1C5.
Would you like to share what part of the holding would be overruled if Leo’s argument holds true?
slcraigbnc:
You asked: Yet still no one can show me the PROMULGATED LAW that provides for Jus Soli, pre 14th,
Answer: It was NOT promulgated law. It was English common law brought to America. Read Wong Kim Ark. 1898. You can find it above.
Read Lynch v. Clarke, 1844. I won’t keep cutting and pasting for you. It is above.
Squeeky Fromm
Girl Reporter
Where do they post the non-monetary sanctions?
Gorefan et al;
Your clinging to WKA and the English Statutory Law of subject-hood and naturalization is instructive of your disdain for the Constitution and the Laws promulgated under its authority. The same disdain that Justice Gray displayed when he dismissed the Burlingame Treaty as not controlling of the Ark parents and their prodigy. Article VI of that Treaty, which was passed and signed and by operation of Constitutional Law attached to the Constitution for the purposes contained therein, clearly states that no person covered under the Treaty shall be eligible to naturalize to the host country. By virtue of the Treaty there were Constitutional limits on the “benefits” available to the Ark’s. But with disdain for all things American Justice Gray sought the Lord Coke and Blackstone rather than Joseph Story of Taney.
The Scott v Sandford Opinion, although highly vilified, followed the Construction of AMERICAN STATUTORY LAW, (rather the the English), which not only paved the way for the Civil War, but also for the 13th and 14th Amendments. Yes, an Amendment was necessary to provide ‘citizenship’ to persons previously denied the benefit, through the Collective naturalization provision of the declaratory born statement.
Scott v. Sandford () 100 U.S. 1
It is not the province of the court to decide upon the justice or injustice, the policy or impolicy, of these laws. The decision of that question belonged to the political or lawmaking power, to those who formed the sovereignty and framed the Constitution. The duty of the court is to interpret the instrument they have framed with the best lights we can obtain on the subject, and to administer it as we find it, according to its true intent and meaning when it was adopted.
I want to repeat the last sentence of the passage posted;
The duty of the court is to interpret the instrument they have framed with the best lights we can obtain on the subject, and to administer it as we find it, according to its true intent and meaning when it was adopted.
Now to the point of citing a case that I’m sure makes your head spin, nevertheless the Court Ruled on the LAW as it then existed, without the aid of Lord Pepsie or Blackrock and looked only at the Laws emanating from the Constitution and cases adjudicated under the Rule of Constitutional law,
…so we find this;
It is true, every person, and every class and description of persons who were, at the time of the adoption of the Constitution, recognised as citizens in the several States became also citizens of this new political body, but none other; it was formed by them, and for them and their posterity, but for no one else. And the personal rights and privileges guarantied to citizens of this new sovereignty were intended to embrace those only who were then members of the several State communities, or who should afterwards by birthright or otherwise become members according to the provisions of the Constitution and the principles on which it was founded. It was the union of those who were at that time members of distinct and separate political communities into one political family, whose power, for certain specified purposes, was to extend over the whole territory of the United States. And it gave to each citizen rights and privileges outside of his State [p407] which he did not before possess, and placed him in every other State upon a perfect equality with its own citizens as to rights of person and rights of property; it made him a citizen of the United States.
“Birthright or otherwise”, i.e., “naturalization”.
Yet still no one can show me the PROMULGATED LAW that provides for Jus Soli, pre 14th, as would be applied to an alien foreign national nor any words in the 14th. or words that require the the enlargement, abridgement and or other modification of the exclusionary provision of the prerequisite imperative requirement of being a natural born Citizen, being the birthright prerogative of Citizen parents.
I’m still looking for all the English Statutory Law that Gray cited and find none of it in the debates on the 14th or any semblance of it in the language of the Amendment its-self which leaves me curious if Gray was attempting to make whole cloth or to dislodge something from upon what he was sitting.
This is the original order from the 3 judge panel in the Third Circuit: http://www.scribd.com/doc/33824651/KERCHNER-v-OBAMA-Precedential-Opinion-Transport-Room From the order:
“Because we have decided that this appeal is frivolous, we
will order counsel for Appellants to show cause why just
damages and costs should not be imposed. Federal Rule of
Appellate Procedure 38 provides that “[i]f a court of appeals
determines that an appeal is frivolous, it may, after a separately
filed motion or notice from the court and reasonable opportunity
to respond, award just damages and single or double costs to the
appellee.” “The purpose of an award of attorneys’ fees under
Rule 38 is to compensate appellees who are forced to defend
judgments awarded them in the trial court from appeals that are
wholly without merit, and to preserve the appellate court calendar for cases worthy of consideration.” Huck v. Dawson,
106 F.3d 45, 52 (3d Cir. 1997) (internal quotation and citation
omitted)..”
As mentioned, Apuzzo was able to grovel his way out of paying monetary sanctions.
Couple of recent items
Taitz said she received calls on Tuesday from two Republican state representatives from New Hampshire, Harry Accornero and Larry Rappoport, to say they are joining her in her elections challenge of Obama in New Hampshire. According to Taitz, they have forwarded her complaint to other legislators, asking them to join.
Sonoran News learned late Wednesday afternoon that the Ballot Law Commission will review Taitz’s complaint seeking removal of Obama from the New Hampshire primary ballot at 2 p.m. this Friday, Nov. 18.
http://www.sonorannews.com/archives/2011/111116/frontpage-storm.html
@ Squeeky F.
In Kerchner v Obama the Third Circuit was going to force Apuzzo to pay costs because he failed to cite Berg’s case in his appeal. Kerchner’s case was Berg redux with a dash of de Vattel and the court was wise to them. Not citing Berg was extremely arrogant and unethical. Apuzzo was able to argue his way out of monetary sanctions but the reprimand stood.
Fred Muggs:
Was Apuzzo really sanctioned??? How much did he have to pay? Do you have a link?
Thanks!
Squeeky Fromm
Girl Reporter
Philo-Publius obviously forgot to mentioned that his attorney lost the case where they espoused their theory on the definition of NBC and Apuzzo was sanctioned to boot.
Both the original verbiage and later verbiage were honest (and correct).