-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.
“Those who refuse to acknowledge that Minor is a citizenship precedent, decided six years AFTER the adoption of the 14th Amendment, are in an irrational state of denial.”
Actually, those who refuse to acknowledge Minor as a citizenship precedent are properly trained to read and interpret case law. The dicta correctly labeled as such quoted above was ancillary to the case at bar and gorefan’s excellent summary of why it is dicta shows the difference between someone who understands the logic and legal reasoning of a decision well enough to sort the dicta from the holding proper. Minor was a case about voting rights. Nothing more, nothing less. Anyone thinking Minor is a citizenship precedent is either incompetent to read case law or living in a fantasy land.
There are plenty of really good legitimate reasons to criticize Obama. His escalated attack on civil liberties and his refusal to prosecute war criminals topping that list. However, the citizenship argument is facile crap usually pimped out to hide what the real motive for people making such a lame argument: simple racism.
He’s a citizen.
Deal with it.
If you want to excoriate the President, start with his refusal to prosecute members of the Bush/Cheney administration for war crimes and his insistence that the Executive has the “right” to execute American citizens without Due Process. Those are actual and important issues.
The Birther ship done sailed, boys, and she’s lost at sea.
P.S. Really nice job there, gorefan. First class work.
The US Supreme Court in Ex Parte Lockwood, 154 U.S. 116 (1894) held:
“In Minor v. Happersett, 21 Wall. 162, this court held that the word ‘citizen’ is often used to convey the idea of membership in a nation, and, in that sense, women, if born of citizen parents within the jurisdiction of the United States, have always been considered citizens of the United States, as much so before the adoption of the fourteenth amendment of the constitution as since…”
Justice Horace Gray who wrote the opinion in Wong Kim Ark was on the Court for Lockwood. Minor continues to be cited as good law for 100 years on both the definition of federal citizenship under A2 S1, and voting rights, and it is beyond question controlling law. Minor was not decided under the 14th Amendment’s citizenship clause.
When the SCOTUS in Lockwood said…
“In Minor v. Happersett…this court held…”
it was a direct recognition of stare decisis on the federal citizenship issue.
The Court construed A2 S1 and determined that Minor, having been born of citizen parents within the US, was a citizen BEFORE the adoption of the 14th Amendment and further held that she did NOT derive her citizenship from that amendment.
Since she was in the “class” deemed to be “natives or natural-born citizens” her citizenship was not in doubt. The Court noted that the other “class”, those born in the US without citizen “parents”, was subject to doubt as to their citizenship. Some of those doubts were resolved as to persons domiciled permanently in the US under US v Wong Kim Ark, where Justice Gray cited the nbc passage from Minor as precedent.
Furthermore, in Lockwood voting had nothing to do with the case at all.
Those who refuse to acknowledge that Minor is a citizenship precedent, decided six years AFTER the adoption of the 14th Amendment, are in an irrational state of denial.
Leo Donofrio
Please, for the love of God, change the “orbiter dicta” in the text of this post to the actual correct spelling, which is “obiter dicta.” Please don’t use Latin phrases unless you spell them correctly. I thought you were a proofreader.
Bdaman
“Does anyone know of a case, in which a Court, any Court, decided that a portion of Minor was obiter dictum.”
There is this:
Justice Morrow, Wong Kim Ark, District Court Northern District of California, January 3, 1896 No. 11, 198.
“But the supreme court has never squarely determined, either prior to or subsequent to the adoption of the fourteenth amendment in 1868, the political status of children born here of foreign parents. In the case of Minor v. Happersett, 21 Wall. 168, the court expressly declined to pass upon that question.”
And this,
Court of Appeals of Indiana, Ankeny and Kruse, vs. Governor of the State of Indiana,
“The United States Supreme Court has read these two provisions in tandem and held that “[t]hus new citizens may be born or they may be created by naturalization.” Minor v. Happersett, 88 (21 Wall.) U.S. 162, 167 (1874). In Minor, written only six years after the Fourteenth Amendment was ratified, the Court observed that:
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. Id. at 167-168. Thus, the Court left open the issue of whether a person who is born within the United States of alien parents is considered a natural born citizen.”
And there are other legal authorities:
Charles Gordon, ‘Who Can be President of the United States: The Unresolved Enigma” 1968, Maryland Law Review
“The only question in the latter [Minor v. Happersett] case was whether a state could validly restrict voting to male citizens of the United States. The answer, since expunged by the nineteenth amendment, was that women could be denied the vote. In his generalized discussion, Chief Justice Waite observed that “new citizens may be born or they may be created by naturalization.” The court mentioned the presidential qualification clause and stated that it unquestionably included children born in this country of citizen parents, who “were natives, or natural-born citizens, as distinguished from aliens or foreigners.”
“While this language appears to equate natives and natural-born, the Court specified that it was not purporting to resolve any issues not before it.”
And this,
J. Michael Medina, 1987, “The Presidential Qualification Clause in this Bicentennial Year: The Need to Eliminate the Natural Born Citizen Requirement” 1986 Oklahoma City University Law Review
“Who is a Natural Born Citizen?”
“The answer to the above question is, quite simply, we do not know. “The Constitution does not, in words, say who shall be natural-born citizen. Resort must be had elsewhere to ascertain that.”[Minor v. Happersett] Because no case squarely on point has arisen, resort must be had to the basic federal scheme of citizenship. It is only clear that naturalized citizens are not natural born.”
On the question of dicta versus holding, there is the decision by the United States Court of Appeals, Seventh Circuit in United States of America v. John Allan Crawley, 837 F.2d 291
“So instead of asking what the word “dictum” means we can ask what reasons there are against a court’s giving weight to a passage found in a previous opinion. There are many. One is that the passage was unnecessary to the outcome of the earlier case and therefore perhaps not as fully considered as it would have been if it were essential to the outcome. A closely related reason is that the passage was not an integral part of the earlier opinion–it can be sloughed off without damaging the analytical structure of the opinion, and so it was a redundant part of that opinion and, again, may not have been fully considered. Still another reason is that the passage was not grounded in the facts of the case and the judges may therefore have lacked an adequate experiential basis for it; another, that the issue addressed in the passage was not presented as an issue, hence was not refined by the fires of adversary presentation. All these are reasons for thinking that a particular passage was not a fully measured judicial pronouncement, that it was not likely to be relied on by readers, and indeed that it may not have been part of the decision that resolved the case or controversy on which the court’s jurisdiction depended (if a federal court).”
So even if the Minor court held that Minor was a citizen, it did not need to decide if she was natural born and the single sentence about the definition of natural born “can be sloughed off without damaging the analytical structure of the opinion”.
Finally, one need only read the first paragraph in the Minor opinion to see what the issues were:
“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. We might, perhaps, decide the case upon other grounds, but this question is fairly made. From the opinion we find that it was the only one decided in the court below, and it is the only one which has been argued here.” Justice Waite
Clearly, the question of citizenship was “not presented as an issue, hence was not refined by the fires of adversary presentation.”
Bdaman,
Do you know of a case–any case–where a portion of a prior case was declared obiter dictum (or orbiter dictum for that matter…)? Is it unusual for it not to have happened in the case of Minor or would it have been unusual if it did? Because if you don’t know these things, then your argument is just a straw man.
What’s your evidence that I’m a Obama political operative?
http://naturalborncitizen.wordpress.com/2011/11/11/justiagate-say-it-aint-so-carl-malamud/
Bill C Says:
November 12, 2011 at 10:59 AM
Will JT ever answer the question ? Great comments, Thanks Leo
http://jonathanturley.org/2011/10/23/holdings-dicta-and-stare-decisis/
Any attorney quoting Wikipedia as a reference for legal opinions has to have a screw loose.
Weazie is an Obama political operative.
Does anyone know of a case, in which a Court, any Court, decided that a portion of Minor was obiter dictum.
If no Court, who cited Minor on citizenship declared it to be obiter dictum, why should the determination be left to someone who would benefit by making that determination?
Obiter, Orbiter
You say po-tay-to, I say po-tah-to
You say tom-ay-to, I say to-mah-to
Po-tay-to, po-tah-to
Tom-ay-to, to-mah-to
Let’s call the whole thing off!
You say Obama, I say Orbama
You say Yo mama, I sat Your mama
Obama, Orbama
Yo mama, Your mama
Let’s call the whole thing off!
Sorry SB deafening, we were wishing for defining 🙂
Nal I questioned you because it looks like Leo was asking you a question.
“Nal said, “Tweaked the last couple of sentences to emphasize that the natural-born potion of the quoted passage, and not the entire passage, was dictum.”
I still wholeheartedly disagree with your conclusion. And I repeat my question from above. Just to be clear which question, here it is again:”
Was looking forward to your response or anyone elses for that matter but it looks like the thread has gone silent and it’s quite defining 🙂
I have stated my argument for why it’s dictum. If someone wants to point out my error, they’re free to do so.
If someone wants to argue why it’s not dictum, they’re free to do so.
Nal ?
Nal said, “Tweaked the last couple of sentences to emphasize that the natural-born potion of the quoted passage, and not the entire passage, was dictum.”
I still wholeheartedly disagree with your conclusion. And I repeat my question from above. Just to be clear which question, here it is again:
The Court in Lockwood was not deciding anything to do with voting rights. The word “vote” does not even appear in that case. Neither does “natural born citizen” appear in Lockwood. So let’s forget about voting and natural born citizen for now… we will return to them later. Please read the following again and explain what precedent the Court in Lockwood was making reference to when they cited Minor…
““In Minor v. Happersett, 21 Wall. 162, this court held that the word ‘citizen’ is often used to convey the idea of membership in a nation, and, in that sense, women, if born of citizen parents within the jurisdiction of the United States, have always been considered citizens of the United States, as much so before the adoption of the fourteenth amendment of the constitution as since;” …
I keep seeing an s associated with parent and it’s becoming more apparent that the 2012 election could see a certain someone bow out.
The question inquiring minds want to know now that the cat is out of the bag. Since we seem to have a clearer explanation of exactly what a NBC is, how will any new challenges be met in re to Obama’s status as an NBC ? Remember it was all moot and no one had standing the last go around.
Ha ha I just noticed NBC as in GE. That may be the only thing Obama can affiliate with his status.
blhls: Disagree. They would not decide whether a person born in the US of alien parents is a “citizen” not a natural born citizen. They needed to establish citizenship to this person to make the decision of the case. They did not need to establish the class of citizenship either. But this person was in the other class of citizenship, the class with citizen parents, the NBC class, which it was “never” doubted who those type of citizens are, right? That’s the whole point.
So, per the Court, there is no doubt that NBCs are those who are born to citizen parents. No matter how you slice it, the definition is there.
I’m curious as to how this misrepresentation as to Minor started and people became so adamant. It requires one to completely ignore the language which explicitly states that the court would not decide whether a person born in the US of alien parents is a natural born citizen as it was unnecessary to answer the question before them which involved someone born to citizen parents. “As to this class, there have been doubts …. For the purposes 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.”
Tweaked the last couple of sentences to emphasize that the natural-born potion of the quoted passage, and not the entire passage, was dictum.
The Court in Lockwood was not deciding anything to do with voting rights. The word “vote” does not even appear in that case. Neither does “natural born citizen” appear in Lockwood. So let’s forget about voting and natural born citizen for now… we will return to them later… and please read the following again and explain what precedent the Court in Lockwood was making reference to when they cited Minor.
““In Minor v. Happersett, 21 Wall. 162, this court held that the word ‘citizen’ is often used to convey the idea of membership in a nation, and, in that sense, women, if born of citizen parents within the jurisdiction of the United States, have always been considered citizens of the United States, as much so before the adoption of the fourteenth amendment of the constitution as since;” …