-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.
Portney,
““Timothy Cunningham’s Law Dictionary (1771) was the only law dictionary that James Madison ordered for the Continental Congress. “”
So the only law dictionary that the Continental Congress had and that was on the shelves of the brightest of the Founders was an English Law dictionary.
Did you know that one of the Framers, Charles Cotesworth Pinckney studied law at Oxford University and actually attended the lectures of Justice Blackstone?
Did you also know that in 1775, Sir Edmund Burke said this about the Colonists,
“Permit me, Sir, to add another circumstance in our colonies, which contributes no mean part towards the growth and effect of this untractable spirit. I mean their education. In no country perhaps in the world is the law so general a study. The profession itself is numerous and powerful; and in most provinces it takes the lead. The greater number of the deputies sent to the congress were lawyers. But all who read, and most do read, endeavour to obtain some smattering in that science. I have been told by an eminent bookseller, that in no branch of his business, after tracts of popular devotion, were so many books as those on the law exported to the plantations. The colonists have now fallen into the way of printing them for their own use. I hear that they have sold nearly as many of Blackstone’s Commentaries in America as in England.”
Did you know that during the Constitutional Convention, Blackstone’s “Commentaries on the Laws of England” was consulted for legal concepts.
“Mr. DICKENSON mentioned to the House that on examining Blackstone’s Commentaries, he found that the terms, “ex post facto” related to criminal cases only” August 19th, 1787
Did you also know that during the 1790 Congressional debates on the Naturalization Law, Representative Jackson talking about English Naturalization Laws quoted from Blackstone’s Commentaries on then said,
“So that here we find, in the nation from which we derive most of our ideas on this subject”
And that during the same debate, Representative Burke made a statement to the effect that the “case of children of American parents born abroad ought to be provided for, as was done in the case of English parents, in the 12th year of William III.“
When Virginia’s Governor Thomas Jefferson became a member of the Board of Visitors at the College of William and Mary, he convinced them to start a Professorship in Law. He got his old mentor, George Wythe appoint as the first Law Professor. Wythe used Blackstone’s Commentaries as the principle law text.
@Squeaky…. spelling suggestions from a little girl who cannot spell Fromme correctly and finishes posts with: “So there!”. Riiiiiight. I’ll get right on that.
Now, why did you take up the name of a murderer for your online persona?
Address the comment and answer the simple questions. Why should anyone listen to you when you won’t answer simple questions, nor address valid topical comments?
@slartibartfast: you and squeaky are the ones slinging the ad hominiums, so turn it on yourself dear. How about addressing the comment instead of flapping your threats. Because I am frankly unimpressed with either thus far.
You have yet to make a convincing argument though you have been trying for years to do so.
“Full circle. Are we discussing dicta again?”
You bet. But I think this thread is very close to the decision. It’s two or three cases and a little research away.
“Tribe and Olson wrote that, under the three sources identified in Wong Kim Ark, “the phrase ‘natural born’ includes both birth abroad to parents who were citizens, and birth within a nation’s territory and allegiance.”
Senator McCain is covered by the first definition, and President Obama is covered by the second.”
Only that Justice Gray did not concur with the first definition. But of course, the first definition was all dicta in Gray’s guidance.
Full circle. Are we discussing dicta again?
Do we need to interpret NBC in light of the English Common Law according to Justice Gray, or is it not strictly though? Isn’t this the same argument of those in favor of the Minor decision being dicta, as to the definition of NBC not being a strict one?
Tribe and Olson wrote that, under the three sources identified in Wong Kim Ark, “the phrase ‘natural born’ includes both birth abroad to parents who were citizens, and birth within a nation’s territory and allegiance.”
Senator McCain is covered by the first definition, and President Obama is covered by the second.
gorefan, very interesting quote you gave us by Hamilton. In light of such consider the following from Tonchen’s blog;
“Timothy Cunningham’s Law Dictionary (1771) was the only law dictionary that James Madison ordered for the Continental Congress. It was one of the most popular comprehensive English dictionaries of the late eighteenth century, and was found in many personal libraries, including those of Thomas Jefferson and John Adams. It was contemporaneously used by various American Supreme Courts for clarification of legal terms. (Berry, pp.347-8).
Under the “Aliens” section of his Law Dictionary, Cunningham defined “natural-born subject” as one who is born within the king’s realm, of parents who are under the king’s “actual obedience”:
All those are natural born subjects, whose parents, at the time of their birth, were under the actual obedience of our king, and whose place of birth was within his dominions. (Cunningham, p.95, in section entitled “Aliens”)”
“[P]arents [who]…were under the actual obedience of our king…at the time of their birth” can not include those beholden to another sovereign in any measure. At least that’s how I read it.
Ok, so, it is not always English Common Law to interpret the provisions of the Constitution in regards to NBC. I thought that Justice Gray told us to that we needed to look at the English Common Law.
Mrjr101
You answered the question.
If Leo (in his use of Ogilvie Et Al., Minors v. United States, 519 U.S. 79 (1996)) is right than the Minor decision limited the class of citizens known as “natural born”. However the later WKA decision widened that definition to include the children of aliens born in the United States.
As explained in this passage from the WKA decision:
“His [foreigner] allegiance to the United States is direct and immediate, and, although but local and temporary, continuing only so long as he remains within our territory, is yet, in the words of Lord Coke in Calvin’s Case, 7 Coke, 6a, ‘strong enough to make a natural subject, for, if he hath issue here, that issue is a natural-born subject’; and his child, as said by Mr. Binney in his essay before quoted, ‘If born in the country, is as much a citizen as the natural-born child of a citizen, and by operation of the same principle.’ ”
A child born in the United States of non-citizen parents is natural-born and “as much a citizen as the natural-born child of a citizen”.
Komfort
“English common law controlled McCain’s birth status.”
Not strictly true. English Common Law controlled those born in the realm. English Statutory Law controlled children born to English subjects outside the realm.
Blackstone summed it up this way,
“THE children of aliens, born here in England, are, generally speaking, natural-born subjects, and entitled to all the privileges of such” (Common Law)
“But by several more modern statutes these restrictions are still farther taken off: so that all children, born out of the king’s ligeance, whose fathers were natural-born subjects, are now natural-born subjects themselves, to all intents and purposes” (English Statutory Law)
And this is where the term “natural born Citizen” is normally debated. Did the Framers (who were aware of the two sets of Law) intend for the term to be enclusive of both concepts (Common and Statutory Laws) or did they intend the more narrow meaning (Common law)?
Just before the Constitutional Convention ended, Alexander Hamilton presented to James Madison a draft constitution. It did not have the term “natural born Citizen” instead it used the term “born a Citizen”. This might mean that Hamilton understood the Constitution to be using the more narrow definition.
Hamilton did tell us where to look for the definition of terms used in the Constitution. In a legal brief on Carriage Taxes, he wrote,
“where so important a distinction in the Constitution is to be realized, it is fair to seek the meaning of terms in the statutory language of that country from which our jurisprudence is derived.”
Danae,
You’re just playa hatin’ on Squeeky because she’s got the goods on you (as do about a dozen other posters here–but most of them are polite when they utterly devastate your ideas). You birthers really crack me up–you pretend that you are making an erudite argument about legal arcana while at the same time demonstrating that you don’t know the difference between “if A then B” and “if not A then not B”. I think that this is a pretty good indicator of the quality of your understanding. I’d ask you what you thought, but…
Bdaman,
That’s awesome news! I don’t know of any bigger publicity whores (we used to call them “TV sluts” back in Cameron Indoor… [WAY TO GO COACH K! #903! GO DEVILS]) than Dr. Orly Taitz, esquire (who is not, to the best of my knowledge, currently disbarred). I hope Orly can drum up a big ol’ spotlight for this one. If she’s correct about New Hampshire law and gets standing, she might just be able to get to arguments and present her ‘zibits to a judge! You are aware that Orly has been posting President Obama’s (likely) former social security number all over the interwebs and that it was fraudulently obtained, right? Perhaps one of the lawyers here might enlighten us as to what would be likely to happen if an attorney stuck the fraudulently obtained social security number of the president (which she has proven completely unable to correctly redact) in front of a judge and demanded they recognize it. I bet it will be fun (Orly never disappoints! [unless you’re a birther])–especially if there is video from the courtroom!
Hope your mom is well.
Danae:
You said: Though if you listen to Squeaky et. al. then it takes some form of obscure algebra to get to a definition. Which is of course confusing. But then THAT is her objective, to confuse and distract.
Actually, my way is real simple. Doubts means doubts, no doubt about it. Plus, haven’t you read the Alphabet Book yet??? Here is a video you can probably fit into your busy schedule:
http://www.youtube.com/watch?v=9RX-1SXaGXg
This will probably help you with your spelling!
Squeeky Fromm
Girl Reporter
slcraignbc
“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.”
Even the Founders used the term subjects in their rightings. The Delaware Legislature as late as 1788 and the Massachusett’s legislature as late as 1791 were passing acts of Naturalization that gave foreign born immigrants the same rights as “natural born subjects”. And the future Chief Justice of the Connecticutt Supreme Court wrote in 1795 that,
“The children of aliens born in this state are considerded as natural born subjects and have the same rights with the rest of the citizens.“
Did all these members of the Founding Generation have disdain for the Constitution or did they just use both terms interchangeably?
I know it was just a memo, Bob, but does the Obama language within the memo fit the dicta template Nal based this thread on? ( assuming the memo was an opinion of the court, of course)
Lexisnexis spelled it M-i-n-e-r in Re Lockwood. Did you expect that?
bob, no doubt the academicians are renown and to be respected…I was curious as to your personal thoughts on the matter.
I tend to believe two prominent attorneys with exceptional careers more than some anonymous nonexpert who often spells the name of the case M – I – N – E -R.
But that’s just me.
Congress can only make law with regard to Naturalization. A Natural Born citizen needs no statute, and needs no investigation.
Natural Born Citizenship means there is no question… there is only one potential citizenship for such a person. there is no need to question the birth circumstances of such a person, there are no questions to ask.
For a person not born to two parent citizens, or born in a place other than their nation, there are questions. This person is a citizen by statute – and potentially affected by new or changed laws coming from congress, but not by birth.
It isn’t rocket science. If the question has to be asked, then there is something to question. If there is something to question, then there must be an investigation of one sort or another, and this starts to run into the realm of the subjective, rather than an objective observation which would state simply, this person cannot have any citizenship other than this one.
That is what Natural Born means. Naturally that person is born with one citizenship… Naturally, there is no need for explanation or justification. Naturally there can be only the one.
It isn’t rocket science. MvH is clear.
Though if you listen to Squeaky et. al. then it takes some form of obscure algebra to get to a definition. Which is of course confusing. But then THAT is her objective, to confuse and distract.