-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.
My prior context argument is bunk (gibberish) without relation to what the court was really intimating…which was NbC, that persons born on the land of natives are themselves citizens (making the later amendment unnecessary).
“But, IN OUR OPINION, it did not need this amendment to give them that position”
The Court declares women are citizens by the 14th Amendment and than says that if the 14th Amendment didn’t exist they would still be a citizens.
The Court in declaring them citizens by the 14th Amendment didn’t need to go any further to decide the case.
gorefan, would you please explain what you mean?
“The argument is, that as a woman, born or naturalized in the United States and subject to the jurisdiction thereof, is a citizen of the United States and of the State in which she resides, she has the right of suffrage as one of the privileges and immunities of her citizenship, which the State cannot by its laws or constitution abridge.
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. Before its adoption the Constitution of the United States did not in terms prescribe who should be citizens of the United States or of the several States, yet there were necessarily such citizens without such provision.”
The context of “But, IN OUR OPINION, it did not need this amendment to give them that position” is simply that women, such as Minor, were citizens of the US and respective state without any need for consideration of the later amendment, her political rights based on citizenship are found in the original constitution (which, of course, the court rules did not give her right to the vote).
BTW, where does the court declare them citizens by the 14th and, as such, didn’t need to go any further to decide the case?
Makes you wonder why WKA bothered to quote Minor.
“ballantine, your earlier quote of WKA did not include the subsequent sentence which clearly identified Binney’s distinct differences in two native born children; ”
My citation was to refute the point that domicile was required under WKA which Coke’s quote makes clear is not required. Binney’s quote doesn’t identiry a distinct difference betweeen native born children. You are reading that into his quote by inferring that not using “natural born” when referring to children of aliens means they are somehow a different type of citizen. Binney say children of aliens and children of citizens are both “citizens” by operation of the same principle. If they are citizens by operation of the same principle, they are obviously not different types of citizens. The principle Binney is talking about is the rule from Calvin’s Case which madde everyone of subject or citizen by locality of birth and, by definition, are natural born. Binney entire paper was on the United States adopted the English common law and obviously defined “natural born” by the common law for example:
“But the law of France rejects the principle of the English law, and of our own laws, that birth within the limits and jurisdiction of France, makes a Frenchman, or a natural-born citizen or subject of France, absolutely,…” Horace Binney, American Law Register, 2 Amer.Law Reg. 206 (February 1854).
The Oglibe agument has no merit. Determining Minor to be a citizen did not answer the question presented at all. Citizenship did not give her the right to vote. The court’s answer to the question presented was that citizenship was irrelvant to the right to vote. It was not an independant grounds to answer the question presented, it was irrelevant to the right to vote.
For anyone who actually reads alot of case law, there is another obvious reason Minor discussion is dicta. It simply makes a few assertions, cites no authority, give no explanation of why the common law should be followed or what the common law rule was, cites no countervailing arguments and fails to tells us what doubts exists. You would never see that in precedent. Compare Minor’s discussion of the common law with Wong Kim Ark’s. The latter spends page after page telling us why the common law should be followed, what the common law is, the original and basis for the rule, who is coveedr and who is not, cites every supreme court case that have touched on the subject as well as most of the legal giants in England and the United States and addresses and dismisses all opposing theories that have been put forth. That is what precedent looks like.
ballantine, your earlier quote of WKA did not include the subsequent sentence which clearly identified Binney’s distinct differences in two native born children; “The amendment, in clear words and in manifest intent, includes the children born within the territory of the United States of all other persons, of whatever race or color, domiciled within the United States. Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States. 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 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.'”
My understanding of the WKA decision is one wholly and utterly premised on the 14th permissive use of “born” (noted by the court’s understanding of the amendment’s authors intent described 10 or so paragraphs later).
Not a lawyer, but Obama’s father was never a citizen. He came as a foreign student to attend college. He never naturalized as far as we know. He supposedly married Obama’s mother and went back to Kenya. That information alone states that Obama was not a NBC, According to the constitution, You have to have been born of 2 U.S. citizens.
Komfort
“Gorefan, I have been thinking about your theory.”
If Leo is right in his analysis of Ogilvie, the answer to your question is it would depend on what the ruling actually said. Simply citing Minor without a context to why it was cited would not have an effect.
But that is if Leo is right.
Minor says…
Re what Minor say;, see if you can talk Slarti into making a formula out of the quote I posted.
Thanks Ballentine. I have to run. I will read and comment a little later.
BTW, does anyone know how to “refresh” this thread on a Droid, without scrolling to the top? I hope it can be done without an “app”.
ksbd
“@ 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.”
Why do you continue to skip the first part of the sentence? Here it is again.
“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;”
He is quoting Lord Coke’s description of how things worked in England to explain how they worked in the United States.
“If both Minor’s extended language and WKA’s extended language became “holding” due to Ogilvie and WKA overturned the precedent set in Minor, does a holding that cites Minor, well after WKA was decided, in turn overrule WKA and reinstate Minor as precedent?”
Only if its discussion was not dicta and it cited Minor for the proposition that natural born citizens need citizen pareents. This would never happen because Minor doesn’t say natural born citizens need to have citizen parents.
“Was there a statute that defined “foreigner” and/or “alien” prior to 1866?”
No, but their was no dipute what “alien” meant in any legal treatise or court case. An undiputed legal term of art.
“But to return to the subject of alienage—an alien, according to the notion commonly received as law, is one born in a strange country and in a foreign society, to which he is presumed to have a natural and a necessary allegiance.” James Wilson, The Works of James Wilson, Vol. II, pg. 291 (1803)
“ALIEN, persons. One born out of the jurisdiction of the United States, who has not since been naturalized under their constitution and laws. To this there are some exceptions, as this children of the ministers of the United States in foreign courts.” See Citizen, Inhabitant. Bouvier Law Dictionary (1843)
“An alien is one who is born in a foreign country.” Analysis of Civil Government, By Calvin Townsend, pg. 325 (1869)
Alien: In american Law. One born out of the jurisdiction of the United States. Alexander Mansfield Burrill, A new law dictionary and glossary, pg 81 (1871)
“An alien is a person born out of the jurisdiction of the United States. There are some exceptions, however, to this rule, by the ancient English law, as in the case of the children of public ministers abroad, (provided their wives be English women,) for they owe not even a local allegiance to any foreign power. ” James Kent, COMMENTARIES ON AMERICAN LAW (1826)
Not really “due” to Ogilivie, but I think you get my drift
Gorefan, I have been thinking about your theory.
If both Minor’s extended language and WKA’s extended language became “holding” due to Ogilvie and WKA overturned the precedent set in Minor, does a holding that cites Minor, well after WKA was decided, in turn overrule WKA and reinstate Minor as precedent?
Portney
“But, IN OUR OPINION, it did not need this amendment to give them that position”
The Court declares women are citizens by the 14th Amendment and than says that if the 14th Amendment didn’t exist they would still be a citizens.
The Court in declaring them citizens by the 14th Amendment didn’t need to go any further to decide the case.
Was there a statute that defined “foreigner” and/or “alien” prior to 1866?
“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.”
Simply not true. WKA mentions these statutes and says they didn’t change the common law rule.
“So far as we are informed, there is no authority, legislative, executive or judicial, in England or America, which maintains or intimates that the statutes (whether considered as declaratory or as merely prospective) conferring citizenship on foreign-born children of citizens have superseded or restricted, in any respect, the established rule of citizenship by birth within the dominion. Even those authorities in this country, which have gone the farthest towards holding such statutes to be but declaratory of the common law have distinctly recognized and emphatically asserted the citizenship of native-born children of foreign parents. 2 Kent Com. 39, 50, 53, 258 note; Lynch v. Clarke, 1 Sandf.Ch. 583, 659; Ludlam v. Ludlam, 26 N.Y. 356, 371.”
Can’t be clearer. You just can’t seem to understand that there was no statute making anyone born in the United States a citizen prior to 1866. Do you not think that children of citizens born in the United States were citizens? No one ever said they were citizens by statute.
No Gray was saying the members of the Slughterhause court were not committed to the view that children of aliens were not citizens under the 14th Amendment since the same Justice in Minor failed to address the status of children of aliens at all. Didn’t say they were not citizens under the original Consitution or the 14th Amendment but expressly stated they would not address their status. Anyone saying Gray cited Minor for any other reason, or that he agreed with anything said in Minor, is simply not telling the truth.