-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.
slccraignbc,
I am curious as to what is the definite position of those in favor of WKA case that settles who are NBC. When Justice Gray pointed out to us that we needed to look elsewhere outside the Constitution. Didnt he give us guidance that we needed to interpret it in light of the English Common Law, or is the English Statutory Law, or both?
squeegy, you need more than ad hominem characterizations about butchers or massacres to make a salient point. You also need to learn to read. The justices in Slaughterhouse were the same ones who unanimously voted in Minor. The quote from WKA says this very clearly:
“while all those judges but Chief Justice Chase were still on the bench”
What part of that do you NOT understand?? You can look up both of these cases and see that eight of the justices took part in BOTH decisions. Gray was explaining that the list of exclusions to the subject clause in Slaughterhouse was NOT comprehensive. This was clear from the unanimous Minor decision. That’s what the sentence sence. The context supports this. Read it. Learn it. Understand it.
Squeaky, I’m not going to go through and pull out each instance of name calling or insult. Once was more than enough for me to disregard anything you have to say on this and any other subject you might discuss in the future. The same can be said to others here, but they don’t have a blog they’re promoting. The reality is you do make good points but good as they are they do not outweigh your poor behavior. I follow many blogs and yours looked to be worthwhile addition to my reading list, however every snarky comment and insult detracts value from anything you say leading me to conclude you should not be taken seriously. For future discussions, if you wish to be taken seriously and have any amount of gravity assigned to your arguments, refrain from any name calling and insults. Your treatment of others reflects on you which in turn casts a long shadow on your blog. It’s your choice the kind of shadow you cast.
Slarti, I appreciate your honesty in admitting you do not want to discuss the topic of the thread. Sorry I jumped all over you. I hope you understand that I was offended at being labeled a birther, when I made no statement that would support that claim.
Since you are a mathematician maybe you could help me with this. Can you take this quote and break it down into an x,y,z type of formula to show the relationship of the major terms?
“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.”
I have always been curious how it would look, if portrayed in a different format.
Thanks in advance.
Squeeky Fromm, Girl Reporter1, November 16, 2011 at 9:31 pm
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
Well, seems that is an admission against interest…..a State Court and ‘dicta’ citing foreign Law is controlling of a Clause of the Constitution that pays homage to the Founding generation and tho Prodigy, (read Posterity), they provided for…..
…..I just do not find that in any Article or Clause of the Constitution which CLEARLY states that it is to be considered the Supreme Law of the Land and ONLY those things in the Constitution by the powers delegated therein constitute the Law to be respected with all powers not delegated and laws not expressed are reserved to the States and to the People.
So I’ll continue to ask, respecting that I am guaranteed a Republican form of Guv’mnt operating under the Constitutional Rule of Law……….wher are the laws written that support your assertions…..
…P.S. The citations in WKA are NOT English “common law” , but rather English Statutory Laws on the subject of subject-hood Promulgated and known as the Queen Anne Statutes under the Political theory of the Divine Right of Kings and. although the philosopher writers devote inquiries into the political systems of Kingdoms, Our Declaration of Independence CLEARLY states that the U.S. was God-bent to break away and sever the bonds from such form of Guv’mnt and to establish a New Nation respecting the Peoples inalienable Rights.
You should start with Aristotle & Cicero and the jump to Pufendorf & Grotius if you are bent to cite “common law” but al least should attempt to understand that the actual meaning of the “English Common Law” refers to the System used to adjudicate cases and controversies, replete with a hierarchy of Writs, Rules and Regulation and that it is within that system the conflicts of “statutory law” are adjudicated, That is the “common law” that was retained in varying degrees, NOT the English Statutory Law.
P.S.S.;
Take the time to read the Queen Anne Statutes and as they subsequently evolved and you will find that the British Empires “natural born subjects” were divided into multiple categories with most being DEEM AS IF natural born subjects, once subjugated by conquest, and DEEMED so AS IF from birth and into perpetuity with NO RIGHT to EXPATRIATE.
Clearly, to my understanding of Inalienable Rights, not synonymous with the needs of the American form of the turn of words, made idiom by virtue of its specific purpose within the Clause, natural born U.S. Citizen, (sic).
Monkey Boy, why so angry?
“@ gorefan, you’re having trouble reading. The passage you cited doesn’t say the child of an alien is natural-born. It says the child of an alien is AS MUCH a citizen as the natural-born child of a citizen. There’s a clear distinction that only the child of a citizen is being characterized as “natural-born,” and that the child of an alien can be as much of a citizen, but nowhere does it say that the child of an alien is natural-born.”
No, you are trying to read something into a quote that isn’t there. Binney is saying children of citizesn and children are both “citizens,” it says “citizens,” by operation of the same principle. It doesn’t say they are different types of citizens. If they were different types of citizens they would not be citizens by operation of the same principle. Simply not calling someone natural born does not mean they are not natural born. A “natural born citizen” is also a “citizen.” Binney actually defined “natural born citizen” in the paper that Gray is quoting as one born “within the limits and under the jurisidiction” of the sovereign which is straight from Blackstone. Binney also said parentage was irrelevant. Why do you focus on an ambiguous quote from Binney and ignore the clear quotes from Justice Curtis and Gray which clearly define what natural born means? Do you skip over those pages?
“And, yes, under the 14th amendment, the child of an alien CAN be a citizen, but according to Wong Kim Ark, it requires MORE than just temporary or local allegiance.”
Wrong again. The court never said domicile was required. It said it was included under the common law. He actually cites Calvin’s Case in his conclusion:
“His 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 Rep. 6a, “strong enough to make a natural subject, for if he hath issue here, that issue is a natural-born subject;”
Seriously, the dishonest twisting of WKA to try to make it say the opposite of what it actually says is embarassing. These type of arguments would get a lawyer sanctioned in court but it seems clear the people making these arguments are not lawyers. SImply ignoring the clear statements that natural born citizen is to be defined by the English common law, that the definition of natural born subject prevailed under the original Constitution that :
“The first section of the second article of the Constitution uses the language, “a natural-born citizen.” It thus assumes that citizenship may be acquired by birth. Undoubtedly, this language of the Constitution was used in reference to that principle of public law, well understood in this country at the time of the adoption of the Constitution, which referred citizenship to the place of birth.”
That
“All persons born in the allegiance of the King are natural-born subjects, and all persons born in the allegiance of the United States are natural-born citizens. Birth and allegiance go together. Such is the rule of the common law, and it is the common law of this country, as well as of England. . . . We find no warrant for the opinion that this great principle of the common law has ever been changed in the United States. It has always obtained here with the same vigor, and subject only to the same exceptions, since as before the Revolution.”
“Minor excluded all children born in the United States of Citizens and Elk v Wilkins excluded all children born in the United States of subjects of foreign States.”
Nonsense. Minor did not exclude anyone from the 14th Amendment and Elk was solely about indians and said nothing about children of aliens. You can spin all you want but WKA only cited Minor to point out that is did not address the question of children of aliens. You are either being dishonest or don’t know how to read cased law.
“Minor excluded all children born in the United States of Citizens and Elk v Wilkins excluded all children born in the United States of subjects of foreign States.”
BOth wrong. Minor didn’t exclude anyone from the 14th Amendment and Elk dealt solely with indians who were treated as being born in a foreign state and said nothing about children of aliens. Need to actually read the case.
I don’t believe that there are nearly 400 posts on something that should be clear. The vast majority are provoked by birther liars simply asserting and reasserting the same drivel.
(a) WKA differentiated between citizen and natural-born citizen.
I offer these two statements, both are undoubtedly true:
[1] Jackie Robinson was a black, major-league baseball player.
[2] Satchel Paige was a baseball player.
Note that nowhere do I exclude Paige from being a black major-leaguer by merely referring to him as a baseball player.
Birther are liars! Not stupid or dense–merely bigoted liars. They don’t actually believe the venom that they spew.
I’m not sure what you folks thought of the opening paragraph of Minor and the relevance of citizenship in their decision;
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.”
(snip)
“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. But, IN OUR OPINION, it did not need this amendment to give them that position.” Emphasis added.
Slarti:
The cargo cult stuff has some sympathetic magic qualities going on. “Like gets like”. I did a poem on Halloween which used that. It was a take-off on the Shakespeare witches in MacBeth. Here is part of it that applies here:
Second Birther Witch:
Case of Minor Happersett
Throw it in, you won’t regret.
Cut a paragraph in two
Throw the first part in the stew.
Here’s the part you must leave out
It’s the half that mentions “doubt”.
They won’t find it, so we think
(Justia has lost the link!)
All
So dance about the magic pot;
And Thank God, ethics. . . we have not.
Squeeky Fromm
Girl Reporter
ksdb:
Maybe “butchering” was the wrong word. “Butchers” provide a valuable service to society. Perhaps I should have said “massacring quotes”— because that word means an indiscriminate slaughter or botching or bungling.
Here is what you said that caused me to opt for a stronger word:
“The justices in Slaughterhouse were the SAME justices who voted UNANIMOUSLY in Minor to reject an argument that women were citizens by virtue of the 14th amendment. ”
That was a bizarre statement. Do you ever try to think about this stuff before you say it???
Squeeky Fromm
Girl Reporter
@gorefan … you’re leaving out parts of the citation and ignoring the context of this paragraph and the following paragraphs. Read it.
“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”
Minor excluded all children born in the United States of Citizens and Elk v Wilkins excluded all children born in the United States of subjects of foreign States. This is why the next couple of paragraphs are about the Minor decision and the next few paragraphs AFTER that are about the Elk decision.
Also, the context of the same paragraph on excluding the children born in the U.S. of citizens is supported by citing the unanimous Minor decision. That’s what the court is talking about when it says:
“manifest from a unanimous judgment of the Court, delivered but two years later, while all those judges but Chief Justice Chase were still on the bench, in which Chief Justice Waite said: “Allegiance and protection are, in this connection” (that is, in relation to citizenship),”
The judgment delivered but two years later is Minor v. Happersett. The citation from Chief Justice Waite is from Minor v. Happersett. The next paragraph is a continuation of the citation from Minor v Happersett. The definition in the next paragraph of natural-born citizens was the same definition in Minor v Happersett that was used to exclude children born of citizens from the birth clause of the 14th amendment. Read it. Learn it. Comprehend it.
Squeeky,
Only some of them are too lazy–others don’t understand how to do research (they do what I call “cargo cult”* research–like Butterdezillion) and some of them understand that they can’t really do the research as it would prove them wrong and some of them are stupid enough to fake the research and don’t realize that rational people see how incompetent they are.
* A chapter in Richard Feynman’s autobiography was a speech he gave on “cargo cult science”–as in the cults on south pacific islands trying to bring the planes (with all the good stuff!) back after WW II by building fake towers and runways.
squeezy, the only butchering of quotes is on your part. The justices in Slaughterhouse were the SAME justices who voted UNANIMOUSLY in Minor to reject an argument that women were citizens by virtue of the 14th amendment. That argument was rejected by citing the definition of natural-born citizen “all children born in the country of parents who were its citizens.” It’s why the NEXT paragraph in WKA after this one cites that definition. Reading is fundamental, squeezy. Read ALL the words in the decision. Pay attention to the context. Gray’s comments about the Slaughterhouse case was only to point out that Slaughterhouse does NOT provide an exclusive (pun intended) decision on the exclusions from the subject clause of the 14th amendment.
@ gorefan, you’re having trouble reading. The passage you cited doesn’t say the child of an alien is natural-born. It says the child of an alien is AS MUCH a citizen as the natural-born child of a citizen. There’s a clear distinction that only the child of a citizen is being characterized as “natural-born,” and that the child of an alien can be as much of a citizen, but nowhere does it say that the child of an alien is natural-born. You’re trying to connect a dot that isn’t connected this way in that passage.
And, yes, under the 14th amendment, the child of an alien CAN be a citizen, but according to Wong Kim Ark, it requires MORE than just temporary or local allegiance. This is why the court gives several passages on residence and domicil, including the same paragraph you cited:
“including all children here born of resident aliens”
“Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection …”
“Domicil” is defined as having a permanent residence and it is used to satisfy the subject clause of the 14th amendment. Under this definition of citizenship (which is still NOT the same as NBC), Obama would fail to be a citizen because his father was not domiciled here, and technically, neither was his mother upon marrying his father. This means Obama, even if he could legally prove he was born in the U.S. is neither a natural-born citizen NOR a 14th amendment citizen.
pete,
I love the dissolves with the wrestling match and the aquarium.
The sequel may well be the worst movie I have ever seen.
(I’m ambivalent about the TV show–I’ve only watched about a half dozen episodes…)
Pete,
Danae already knows that. Who I am, and what my name is all about is in my profile on the main forum where we usually fight. Who knows what she is trying to prove. For what it is worth, I suspect the real Squeaky Fromme is also older than 27.
Slarti:
I agree. The Vattle Birthers come up with all these weird interpretations of law, and then are too lazy to do the research to try to reconcile all the anomalies.
Squeeky Fromm
Girl Reporter
Squeeky Fromm