-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.
ksdb
“You seem to have a trouble reading. Gray said in WKA the Supreme Court was “committed to the view” that children born of the country of citizens were excluded from the birth clause of the 14th amendment ”
You are joking right? Or was that a typo?
Here is the passage:
“understood the court to be committed to the view that all children born in the United States of citizens or subjects of foreign states were excluded from the operation of the first sentence of the fourteenth amendment”
The phrase is “citizens or subjects of foreign states”.
Here is what Justice Gray is talking about. Before the Minor case there were the Slaughter House Cases. In Slaughter House, the court (which included most of the Justices who decided the Minor Case) said that the children of foreigners born here were not citizens. So, Justice Gray is saying that those same Justices who said that children of foreigners were not citizens in the Slaughter House, changed their minds in the Minor Case and said there are doubts but they would not settle the doubts.
Go back and read the paragraph. It starts “That neither Mr. Justice Miller, nor any of the justices who took part in the decision of the Slaughter House Cases, understood the court to be committed to the view”.
The Justices are not committed to the view that was expressed in the Slaughter House Cases.
Squeeky,
Context is not the birther’s friend…
danae
fromm was never convicted of murder, only the attempted assassination of a president.
she was also paroled in august 2009 so the person you’re addressing may well be that squeeky fromm and since it is her nickname she can spell it any way she likes.
also neither the series or the sequel of the highlander lived up to the original movie. as you said doc, “there can be only one”.
KSDB:
You are butchering quotes. This language “committed to the view that all children born in the United States of citizens or subjects of foreign States. . .” comes from Section 5 of WKA as I recall, and was part of what the WKA court was rebutting from the Slaughterhouse Cases.
This was why the Minor v. Happersett cite was made in that section of the case. Not as precedent, but to show the Slaughterhouse judges were NOT committed to that view as proven by what those same judges said two years later in Minor.
For goodness sakes, please pay attention to what you read and don’t just match words. You need some context.
Squeeky Fromm
Girl Reporter
squeezy, you ARE missing a lot. You need to take your own advice and read ALL the words from the decision. Here’s the passage I was referring to:
“committed to the view that all children born in the United States of citizens or subjects of foreign States were excluded from the operation of the first sentence of the Fourteenth Amendment …”
Do you SEE where it says “subjects of foreign States”??? These are the words of the court, not mine.
And you’re right about one thing: this would exclude a lot of people, but this is ONLY talking about the citizen clause, not the entire 14th amendment which has broader application. The birth clause in the 14th amendment was written to grant citizenship to a select minority of persons born in this country. It wasn’t designed to grant birth citizenship who were already citizens by virtue of being natural-born citizens. All others were expected to naturalize.
ksdb
I did ask you to give your interpetation of the entire sentence. Here it is again,
“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.’ ”
An alien in the United States owes allegiance to the United States as long as he is in “our territory” and in the words of Lord Coke if he has a child that child is natural born and as much a citizen as the natural born child of a citizen.
You ignored the part about the alien owing allegiance to the United States while in the United States, his child born here being natural born and a citizen.
KSDB:
You said:
You seem to have a trouble reading. Gray said in WKA the Supreme Court was “committed to the view” that children born of the country of citizens were excluded from the birth clause of the 14th amendment and he cited a unanimous decision (MvH) to support this. In the same passage he said the children born of subjects of “foreign states” were also excluded . . .
Uh, I think you are excluding about everybody born here in the country with your analysis. I am trying to think of people who either don’t have citizen parents or foreign parents, and I am coming up short. With what Danae said earlier it kind of sounds like movie night here, sooo are you maybe referring to the mutant X-Men???
Have I missed something???
Squeeky Fromm
Girl Reporter
Squeeky,
I liked your poem (and Mr. Eliot’s part, too…)–you should check out some of Elaine’s poetry (“Elaine M.”, one of the guest bloggers), she’s written some good stuff on this site. Definitely check out the movie if you liked the TV show–it was similar, but better (my opinion–it also came first).
Squeeky,
I definitely agree that birthers are prone to false equivalences like that. You can see it on this thread with people trying to score abstruse debating points as if they could convince people of their ludicrous theories if they’re right about enough bits of trivial minutia. I think they see everything as a kind of zero-sum game…
@ballantine
You seem to have a trouble reading. Gray said in WKA the Supreme Court was “committed to the view” that children born of the country of citizens were excluded from the birth clause of the 14th amendment and he cited a unanimous decision (MvH) to support this. In the same passage he said the children born of subjects of “foreign states” were also excluded and that citation was supported in Elk v. Wilkins. Gray affirmed and upheld the finding in MvH, but he used creative license to bypass EvW by claiming that Indians were “alien nations” not “not foreign states” and that Indians had “a peculiar relation to the National Government, unknown to the common law.” Since Wong Kim Ark was Chinese, then he treated China as a “foreign state” instead of an “alien nation” to make a distinction that would exempt Wong Kim Ark from these exclusions. From this point forward in the decision, Gray does not use the term “natural-born citizen” but instead opts for what he calls “citizenship by birth” which is controlled by different criteria.
@gorefan
The phrase “as much a citizen as the natural-born child of a citizen” serves to show a distinction, and it does not mean “equal to.” An apple is “as much a piece of fruit” as a banana, but an apple is not a banana. A child of an alien might be as much a citizen as a natural-born child of a citizen, but the child of an alien is still NOT a natural-born citizen. What does this mean in regards to Obama? He is a fruit, but he is NOT a natural-born citizen under the definition used in BOTH Minor and WKA. He’s not even a 14th amendment citizen according to WKA because his parents did not have a permanent residence and domicil.
Slarti:
Maybe you are right about the movie. Plus, this is a very interesting website. I did a poem for them over on the Humphrey the Hippo thread. I hope they like it.
Squeeky Fromm
Girl Reporter
Slarti:
I think that a lot of the anger comes from the inability to get any respect for their theories. It is as if the existence of valid legal disputes, such as over the constitutionality of Obamacare, automatically implies that any legal dispute is valid and has some basis in reality.
This is why the Cognitive Decompensation seems to be accelerating among them.
Squeeky Fromm
Girl Reporter
Squeeky,
You should really be referring her to the movie “The Highlander” (Christopher Lambert, Sean Connery–a classic [under no circumstances should you watch the first sequel–ever {seriously}]–“There can be only one.”). Just my opinion…
Danae,
What part of “do your own research” do you NOT understand??? That advice would work for both my “name” and your erroneous statement of the law. Particularly, this one:
“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.”
First, the 14th Amendment is not a “statute.” That is why birthright citizenship (nbc) was placed into the Constitution. The 14th Amendment does give a lot of headaches to Sovereign Citizen types who are convinced it has something to do with gold fringe on flags, or capital letters in lawsuits. I truly hope that is not the source of your confusion.
Second, you made this curious statement:
“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.”
I think that maybe you are confusing natural born citizenship with that TV show called The Highlander, where they chop off each others heads and lightning bolts flash everywhere. In REAL LIFE, natural born citizenship, for most people, is just being born here under the jurisdiction of the United States. That is, born here, and not the kid of a diplomat or invading soldier.
I suggest you read Wong Kim Ark, all 19,464 words of it, and maybe just TIVO, or do a DVR thingie on The Highlander.
Squeeky Fromm
Girl Reporter
Danae,
Ad hominems (or ad hominiums or mad homiminiums) are only a fallacy if they are unjustified (and I don’t believe I’ve made threats of any sort–can you cite an example?). Can you point to any of mine that weren’t true? I don’t care to comment on the topic of the thread–my purpose is to point out the ignorance, lack of intelligence, lack of integrity, and incompetence of the birthers. Not being a lawyer, I don’t have any insight into the difference between dicta and holdings–except what I’ve gleaned from reading the comments of people I respect like Ballantine and Nal–, but, being a mathematician, the blatant logical mistake being made by Leo and the other birthers offends me. I’m not someone who suffers fools gladly and birthers are all fools. I notice that you are upset that Squeeky and I are calling birthers names, but you are completely unwilling to discuss the substance of our arguments–why is that? If our arguments are as unconvincing as you say, you should be able to easily attack them on their merits. What should we infer from your failure to do so? What do you think, Squeeky? What is behind the birthers’ impotence?
I tried to limit the supposition, Bob, but I still do not know the limits to WKA’s rationale. Have you decided if the rationale is specifically the text included in Ankeny? Or is it greater?
bob, this is a debate and not a request for forfeiture of your immortal soul. In all probability neither of us have a clear understanding of the matter. It’s just our opinions as to what is likely true. Relax.
“Sure is alot of supposition going on if you ask me.”
About what I think? Absolutely.
gorefan. that is interesting and thanks.
bob, so I take it it is your personal belief that WKA overruled MvH as to the definition of NbC in line with Tribe and Olson’s assertion? I’m curious as to what you think with your own reading of the WKA decision, is it your contention that by defining 14th “born” to include non-citizen parents that somehow through squinty nuance and inference it also defines A2 “natural born”? I take it you believe the MvH court defined 14th ‘born” inferentially in the same manner and as such was overruled by WKA? Sure is alot of supposition going on if you ask me.