-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.
Re: “Which hospital? There is confusion there as well.”
No there isn’t any confusion. There are only birthers who say that there was confusion.
Obama has always said Kapiolani. HIs sister always said Kapiolani (she was simply misquoted by UPI once, and a correction was made). His long-form birth certificate says Kapiolani. The former Republican governor of Hawaii says Kapiolani. The current Democrat governor of Hawaii says Kapiolani. And this witness–who recalls being told about Obama’s birth in 1961 and writing home to her father about it (because he was named Stanley and so was Obama’s mother) also said Kapiolani (http://www.buffalonews.com/incoming/article137495.ece (The birther allegation that Dr West had retired by 1961 turns out to be false).
Komfort,
Axiom1. The Pythagorean theorem is a mathematical construct
Axiom2. Persons who create mathematical constructs are known as mathematicians
Axiom3. Universities were invented after Pythagorus’ death
Lemma: Pythagorus did not have a degree
Proof: 😉
Theorem: It does not require a degree to be a mathematician
Proof: Exercise for reader (rafflaw–this is logic about math, not actual math, so you shouldn’t have a problem… ;-))
Does that answer your hypothetical?
Which hospital? There is confusion there as well.
Komfort,
Interesting take… the reasonable logic is that Joe even though is granted to be a mathematician, never had, or never will hold a degree in mathematics. So it is not absolutely necessary to hold a degree in mathematics to become a mathematician for that authority.
Re: “We are now 3 years down the road and we are still divided about this president and whether he is eligible. Why???”
Because a small group of people with evil motives are willing to lie, and to keep on lying, about the facts and the law. Obama was born in Hawaii, which has been demonstrated overwhelmingly, and the US Constitution considers every child born in the USA except for the children of foreign diplomats to be a Natural Born US citizen.
We are now 3 years down the road and we are still divided about this president and whether he is eligible. Why????These questions should have been settled before he was elected and not now as we head towards another election. We as people will have differing opinions about things but we should all be united as to a common goal and that is to stop this country from free-falling into country of hate and division. I have an open mind and I can see points to both sides of the equation. What I do not understand is why things are written to where there is confusion when it should be so very clear as to the meaning of what these documents and rulings have stated.
“The Elk decision excluded Indians from the subject clause because it said:
“are no more “born in the United States, and subject to the jurisdiction thereof” within the meaning of the first section of the Fourteenth Amendment than the children of subjects of any foreign government born within the domain of that government ….”
Do you not even read what you write. Gray is comparing indians to aliens born in a foreign country. DUH. That is becuase Gray tells us that we treat the tribes as foreign nations hence children born to suich tribes are treated as born in a foreign nation. There was a whole debate about this in Congress where indian children born in the indians nations were deemed aliens but indian children born to indians who had left their tribe and came within our jurisdiction would be citizens.
Sorry ksdb, you are again twisting what Gray said. He said the passage was clearly dicta which is “not formulated with the same care and exactness as if the case before the court.” To illustrate such lact of case he points out that Miller lumped ministers and counsels together. The reason Gray is citing this was to dismiss Miller’s exclusion of children of foreign subjects which is contrary to the holding of this case. Such is illustrated when Gray says:
“That neither Mr. Justice Miller nor any of the justices who took part in the decision of The Slaughterhouse Cases 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.”
He cites Marshall to point out that this Slaughter dicta should not be given weight. Seriously, do you not realize you are twisting the meaning of all this beyond recognition. It is simply dishonest.
Minor doesn’t say children of citizen are exluded from the 14th Amendment. It said they didn’t need it to make them citizens. By the same token, Gray clearly stated on pate 675 that before 1866, native born children of aliens were citizens. So clearly children of aliens didn’t need the 14th Amendment either since he says they were citizens before that. Doesn’t mean they are exluded from the Amendment. You are dishonested claiming the court is saying something it doesn’t. This is very simple. Miller says children of foreign subjects are exluded. Gray says such is dicta and to illustrate the court was not committed to this view cites a case which simkply says the citizenship status of such persons was in dispute.
Now, try going to the part of the decision where Gray actually talks about who is natural born.
What did SCOTUS mean when the said that the plaintiff’s whole argument proceeded upon the idea of women to be considered as citizens the same as men?
“. The words “all children” are certainly as comprehensive, when used in this connection, as “all persons,” and if females are included in the last they must be in the first. That they are included in the last is not denied. In fact the whole argument of the plaintiffs proceeds upon that idea.”
…
“But if more is necessary to show that women have always been considered as citizens the same as men, abundant proof is to be found in the legislative and judicial history of the country. “
cynkading said “SCOTUS did rule on this in 1875. The meaning has not changed but the argument is that the times have.
Back in 1875, the United States Supreme Court, in Minor v, Happersett, ruled that:”
Answer: Haven’t you been reading anything on this post? NO, the US Supreme Court made no such ruling.
Joe goes to an employment agency and tells them he wants to be a mathematician. The agency opens their book of jobs to see what may be required of Joe.
They find it was never doubted that a person holding a degree in mathematics was indeed a mathematician.
They do note that some references go so far as to allow persons with an unknown educational background to become mathematicians. But that group is plagued with doubt.
Joe does not have a degree in mathematics. The agency sets about resolving the doubts before Joe leaves.
Does this mean that when the doubts are resolved, Joe now has a degree? Or does it mean a person who does not have a degree can be a mathematician?
scott osborne said:
“…doesn’t the mere fact that this issue cannot be agreed upon point to the need for SCOTUS to weigh in once and for all and settle this. This would be the most logical course of action. Of course, that is unless some of you don’t want to take a chance that the “born of two citizens” crowd may be right.”
IF the US Supreme Court took the case, the two-parent theory would lose OVERWHELMING, a unanimous decision or at worst eight to one. But the US Supreme Court is highly unlikely to take the case for that very reason. There has to be four justices who think that there is an issue, and if all or virtually all of them think that the meaning of Natural Born Citizen comes from the common law and includes all the children born in the USA obviously they do not think that there is an issue.
Personally, i would be delighted if the court took the case because I know that the unanimous or near unanimous decision would be made and that would tend to discourage two-fers, meaning the proponents of the two-parent theory.
As I have pointed out above, in my post of November 16, 2011 at 1:22 am, there is good historical evidence that Natural Born Citizen stems from the common law and in fact was used in America to refer to the place of birth. That means that among the conservative justices the originalists would not vote for the two-parent theory. And there is nothing in the Constitution itself or any American law or document or anything written at the time that said “two parents are required”–or anything like that. And under strict construction judicial principles “if it does not say it, it does not mean it.” So that is why it is highly probable that all or virtually all the conservative justices on the court would vote against the two-parent theory, along with all the liberals and the swing vote too, of course.
scott osborne 1, November 17, 2011 at 11:56 am
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SCOTUS did rule on this in 1875. The meaning has not changed but the argument is that the times have.
Back in 1875, the United States Supreme Court, in Minor v, Happersett, ruled that:
“Natural Born Citizen” was defined as children born of two U.S. citizens – regardless of the location of the birth. It found: “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.”
“doesn’t the mere fact that this issue cannot be agreed upon point to the need for SCOTUS to weigh in once and for all and settle this.”
We have no control over whether the Supreme Court takes a case. Until then we have to interpret the law that we have. There is no disagreement among scholars or subsequent court cases on this point. There is disagreement by poeple on this board who are clearly not scholars. The problem is people here insisting Minor says something it doesn’t say and deparately trying to ignore what Wong Kim Ark has said. Since WKA, there are a half dozen or so Supreme Court decisions stating the President must simply be a native born citizen, dozens of federal cases where children of aliens are called natural born citizens, a recent state court case affirming the English common law rule based upon WKA and, of course, hundreds of treatises, dictionaries and law reviews affirming the common law view. That is the law we have.
@ballantine, you’re not understanding the context of Gray’s citation of Slaughterhouse, Minor and Elk. In the series of paragraphs he looks at how the SCOTUS viewed the 14th amendment, specifically the subject clause. In Slaugterhouse, it says:
“The phrase, “subject to its jurisdiction” was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States.”
Gray takes exception with this because a) because he didn’t think children of consuls should be lumped in with children of foreign ministers:
” … Mr. Justice Miller concurred, that consuls, … are not considered as entrusted with authority to represent their sovereign … or entitled by the law of nations to the privileges and immunities of ambassadors or public ministers …”
And b) says that these exclusions in Slaughterhouse are not comprehensive. This is why he quotes Justice Marshall in saying that you have to look at the context of the case when “general utterances” are made within a decision.
“general expressions in every opinion are to be taken in connection with the case in which those expressions are used. …. Other principles which may serve to illustrate it are considered in their relation to the case decided, but their possible bearing on all other cases is seldom completely investigated.”
Gray was trying to “completely investigate” the court’s rulings of citizenship under the 14th amendment. The exclusions listed by Miller in Slaughterhouse were not comprehensive and Gray says it was not completely investigated. This is made clear by the two following decisions: Minor and Elk. In Minor, the court UNANIMOUSLY said that children born in the country to citizen parents did NOT need the 14th amendment to confer their citizenship. This EXCLUDES those persons from the operation of the citizen clause and it explains the context of Gray’s comment that the court was:
“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 Minor decision referenced in the next two paragraphs does NOT say that children born of aliens are excluded from the citizenship clause of the 14th amendment. It says the children born in the country of citizens do NOT need the 14th amendment to confer citizenship. That EXCLUDES such persons from the citizen clause.
The Elk decision excluded Indians from the subject clause because it said:
“are no more “born in the United States, and subject to the jurisdiction thereof” within the meaning of the first section of the Fourteenth Amendment than the children of subjects of any foreign government born within the domain of that government ….”
I’ve already explained how Gray wiggled around the Elk exclusion by making up a distinction between “alien nations” and “foreign states.” He also works around this exclusion by using permanent residence and domicil to satisfy the subject clause. It’s all there. Read it all.
cynkading said:
“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.”
Who told you that? It is wrong.
“Natural born citizen. Persons who are born within the jurisdiction of a national government, i.e. in its territorial limits, or those born of citizens temporarily residing abroad.” — Black’s Law Dictionary, Sixth Edition
“Therefore every person born within the United States, its territories or districts, whether the parents are citizens or aliens, is a natural born citizen in the sense of the Constitution, and entitled to all the rights and privileges appertaining to that capacity.”—William Rawle, A VIEW OF THE CONSTITUTION OF THE UNITED STATES OF AMERICA. 2d ed. (1829)
“Under the longstanding English common-law principle of jus soli, persons born within the territory of the sovereign (other than children of enemy aliens or foreign diplomats) are citizens from birth. Thus, those persons born within the United States are “natural born citizens” and eligible to be President….”—- Edwin Meese, et al, THE HERITAGE GUIDE TO THE CONSTITUTION (2005) [Edwin Meese was Ronald Reagan’s attorney general, and the Heritage Foundation is a well-known Conservative organization.]
The Missouri Supreme Court actually never mentioned whether Minor was a citizen or not in its opinion. It held that nothing in the 14th Amendment prohibits the states from restricting “the right of suffrage to the male inhabitants.” Being a citizen simply was not relevant to such holding.
http://books.google.com/books?pg=PA60&dq=minor+v+happersett+missouri+supreme+court+1873&id=ENIaAAAAYAAJ#v=onepage&q&f=false
Wow, so much confusion in regard this issue. It seems like most on this site think alike and quickly trash dissenting opinions; however, doesn’t the mere fact that this issue cannot be agreed upon point to the need for SCOTUS to weigh in once and for all and settle this. This would be the most logical course of action. Of course, that is unless some of you don’t want to take a chance that the “born of two citizens” crowd may be right.
“Should I interpret that as you do not agree with Nal then when he said:
‘”The determination of citizenship is critical in Minor, not what constitutes “natural born citizen.”
Yes, why is it critical to determine if Minor is a citizen if citizenship is irrelvant to the right to vote. The Court, for example, could have simply said it need to to determine her citizenship since it was not relevant to the right to vote. Why didn’t the Missouri Supreme Court determine here citizenship? Because it was conceded and no bearing on its holding that citizenship did not give one the right to vote.
“The court’s answer to the question presented was that citizenship was irrelvant to the right to vote.”
Ballantine,
Should I interpret that as you do not agree with Nal then when he said:
‘”The determination of citizenship is critical in Minor, not what constitutes “natural born citizen.”