Courts, Lawyering, Supreme Court

Holdings, Dicta, And Stare Decisis

-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.

1,351 thoughts on “Holdings, <i>Dicta</i>, And <i>Stare Decisis</i>”

  1. I wish that this thread stays on target. It seems that relevant questions are not being discussed for some reason.

    Ballantine,

    “. 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. “

    See, the whole argument of the plaintiffs proceeded upon the idea that women must be included as all persons when defining citizenship and ..more is necessary to show. Iis necessary to show in this case that women “have always been considered as citizens the same as men”.

    and immediately after that the Court adds:

    “Thus, by the Constitution, the judicial power of the United States is made to extend to controversies between citizens of different States. Under this it has been uniformly held that the citizenship necessary to give the courts of the United States jurisdiction of a cause must be affirmatively shown on the record. Its existence as a fact may be put in issue and tried. If found not to exist the case must be dismissed”

    See, the case must be dismissed if citizenship is not “affirmatively shown on the record”

    Then it goes to say after a few paragraphs:

    “Other proof of like character might be found, but certainly more cannot be necessary to establish the fact that sex has never been made one of the elements of citizenship in the United States.”

    Justice Waite established the fact that gender is not undoubtedly one of the elements of citizenship.

    Again, does the above show that citizenship was not relevant to the case in Minor?

  2. Further to: “Re: “Prove it with what “evidence” has been offered.”

    I have just disproved the claims that the birth certificate was forged. Now to prove the place of birth. For Obama to have been born anywhere else than Hawaii, all six of the following would have to be false. But all six points are accurate:

    1. Obama’s two official birth certificates, with the state seals on them. (The official physical copy of the long-form birth certificate was handed around in the White House press room, and one reporter said that she had felt the seal and took a photo of the document.

    2. The confirmation of the facts on the two birth certificates–that Obama was born in Hawaii–by THREE Republican officials in Hawaii.

    3. The notices of Obama’s birth in the Hawaii newspapers in 1961. (The claim that the notices could have been placed by lying relatives turns out to be false because whenever there was a claim of a birth outside of a hospital, Hawaii insisted on a witness statement.)

    4. The absence of a US travel document for Obama in 1961. Nor has there been an application for such a travel document found.

    5. This witness, who recalls being told of Obama’s birth in Hawaii in Kapiolani Hospital in 1961 and writing home about http://www.buffalonews.com/incoming/article137495.ece (The birther allegation that Dr West had retired by 1961 turns out to be false).

    6. Obama’s Kenyan grandmother said repeatedly in the taped interview that he was BORN IN HAWAII, and she said in another interview (Hartford Courant) that the first that her family in Kenya had heard of Obama’s birth was in a letter FROM HAWAII.

    In addition to those six points there is very strong confirmation of Obama’s birth in Hawaii, as pointed out by Slartibartfast above. He noted that the mother of “Stig W.” (Stig Waidelich) remembers that she saw a black child in the hospital nursery at the time. Of course there are many black children, but not so many in Hawaii in 1961.

  4. Sorry slcraignbc we don’t interpret the Constitution by who you think would be the most loyal. I know you caanot find any statement from a framer to suppport your position, but speculation has no place in Constitutional interpretation. You need to present facts. The facts are that the most important framers wanted no restrictions on office holde legalars and place of birth was all they discussed. The facts are that all early legal authority adopted the common law rule.

  5. Re: “Prove it with what “evidence” has been offered. It has been declared as fraudulent while the so called “originals” are STILL being withheld at the tune now of $2,000,000 paid to high powered attys.”

    Okay.

    The “declared as fraudulent” was done by “experts” quoted by WND and other birther sites. Their experts included Douglas Vogt, whose autobiography, on his own Web site reads:

    ”
    About the author:
    Douglas Vogt is a geologist and science philosopher. He has funded and directed three expeditions to the Sinai desert where he was the first person since Baruch (Jeremiah’s grandson) to discover the real Mount Sinai. He discovered all the altars that Moses describes in the Torah. In addition he was the first person since Moses to see the real Abraham’s altar also located at Mount Sinai and not in Jerusalem. He has discovered the code systems used by Moses when writing the surface story of the Torah, which enabled him to decode the Torah and other earlier books of the Hebrew Scriptures.”

    In other words, he is a nut.

    And another “expert” quoted was Paul Irey, who repeatedly stated his hatred of Obama and his claim that Obama never attended Columbia University (even though Columbia stated that he did, and even graduated). In other words, he is not impartial.

    But WND never quoted these:

    Dr. Neil Krawetz, an imaging software analysis author and experienced examiner of questioned images, said: “The PDF released by the White House shows no sign of digital manipulation or alterations. I see nothing that appears to be suspicious.”

    Nathan Goulding with The National Review: “We have received several e-mails today calling into question the validity of the PDF that the White House released, namely that there are embedded layers in the document. There are now several other people on the case. We looked into it and dismissed it. … I’ve confirmed that scanning an image, converting it to a PDF, optimizing that PDF, and then opening it up in Illustrator, does in fact create layers similar to what is seen in the birth certificate PDF. You can try it yourself at home.”

    John Woodman, independent computer professional, said in a series of videos that the claims of fakery that he examined were unfounded.

    Ivan Zatkovich, who has testified in court as a technology expert, and consultant to WorldNetDaily: “All of the modifications to the PDF document that can be identified are consistent with someone enhancing the legibility of the document.”

    Nor this:

    http://www.marketwatch.com/story/tea-party-conservative-refutes-claims-of-obama-birth-certificate-forgery-2011-08-30

    More importantly, no official in Hawaii has ever said that either Obama’s short-form or long-form birth certificate is forged, and after all they are the experts. If WND really were convinced that the birth certificate was forged, it could ask to see the official copy of the long form (or for that matter the short-form, or both), the one on security paper with the seal (on the back, where it is supposed to be) and take it to such recognized experts on documents as members of the American Board of Forensic Document Examiners or the American Society of Questioned Document Experts or the Association of Forensic Document Examiners. But WND has never attempted to do this. Why not? Because the chance of the document being forged is NIL, while the opportunity to get nuts and anti-Obama zealots to claim that the document is forged is high.

    This is what is known as LYING–like the guy who went to Kenya and claimed to have gotten a birth certificate there and who never even proved that he had gone to Kenya.

  6. Komfort1, November 17, 2011 at 1:47 pm

    I do doubt that all mathematicians are Pythagorus.

    You know, with all of the dismissiveness of the needs of the Constitution insofar as the “exclusionary provision” of the Executive qualification Clause is concerned it might be instructive to “run the numbers” on which “persons” are most likely to assert fidelity to the Constitution and the Principles it espouses, including the Defense of the Nation from all enemies, foreign and domestic.

    Alien foreign national citizen/subjects of other countries,

    1st generation naturalized Citizens having taken Oath and denounced all other allegiance.

    Dual-Citizens, born or elective.

    natural born Citizens of Citizen parents.

    According to history it would be the later, however, given the state of the educational system and the advance of the radical progressives cum socialists it may not be as strong a showing as history would suggest.

  7. He’s a citizen.

    Deal with it.

    ————————-
    Prove it with what “evidence” has been offered. It has been declared as fraudulent while the so called “originals” are STILL being withheld at the tune now of $2,000,000 paid to high powered attys so that the truth of history (so seemingly desired here in these comments otherwise) will remain hidden from the citizens. This along with the government’s own e-verify flagging the SSN # used by Obama as no match with his name screams fraud. If you are a citizen OF ANY KIND NOW you don’t need to dummy up and use a phony SSN.

    A private investigation reveals that the Social Security Number being used by Barack Obama does not pass a check with E-Verify, the electronic system the U.S. Citizenship and Immigrations Services of the U.S. Department of Homeland Security has created to verify whether or not prospective employees have the required authorization to work legally in the United States.

    Over the past few years, the E-Verify system has received national attention because of its ability to determine if prospective employees are illegal immigrants who have entered the United States without the legal authority to work.

    http://politisite.com/2011/09/17/e-verify-flags-obamas-social-security-number/

    Deal with those actual facts that present themselves in the present while the OBOTS scrub, consciously deny, break any ethical standards left within them, in order to participate in the scam to the detriment of not only themselves but the entire country.

    This is not any kind of hearsay backed by Alred types that gets national coverage in order to simply smear, without facts, a fellow NBC, but the real stuff not touched by the “purists”/elitists who could care less if the Constitution is ripped and stomped upon. There is NO transparency. In fact just the opposite/the Chicago way has been installed and thuggery reigns.

  8. ksdb,

    Sorry, repeating the same nonsense over and over does not make it true. Gray only mentioned Miller’s not differentiating between counsel and ministers to show such statement was not made with care. What he had issue with was the notion that children of foreign subjects were not citizens under th 14th as that would exclude Wong Kim Ark contrary to his decision. SPin all you want, he then cites Minor solely to show Miller and his court was not committed to such viesw of children of foreign subjects.

    Elk v. Wilkins doesn’t say children of foreign subjects are excluded. Such would be contrary to Gray’s WKA opinion. It equates indians to foreign born people. Pretty simple. We treat indian nations as foreign countries and poeple born in such countries are treated as born in foreign nations.

    Waite didn’t say persons of Minor’s class were excluded from the 14th. It said she didn’t need it to become a citizen. She was born before the Amendment and was already a citizen under the original Constitution. How could a child of citizens not be born “subject to the jurisdiction” of the United States under any interpretation of the rule. And it is simply a fact that Gray spend 20 pages looking at the status of children of aliens under the original Constitution before unambiguously concluding on page 675 that they were citizens. Do you just ignore stuff you don’t like? Gray may have stopped there, but the question before the Court was the interpretation of the 14th Amendment, so it is not suprising that he went on to address the 14th amendment and tell us it was declaratory of pre-existing law.

    I can’t even fathom what you point is on the common law. Waite clearly looked to the common law to define “natural born citizen.” Gray say “natural born citizen” and “citizen” are undefined and cites multiple authorities that all undefined terms must be defined by the Constitutuion. Such obviously means all the undefined terms which would include “natural born citizenship” he just mentioned. He doesn’t say “subject to the jurisdiction is not defined. Gray then goes on to tell us the definition of “natural born subject” prevailed under the Constiution and “natural born subject” and “natural born citizen” mean the same thing. Can’t you read?

  10. My brother is a natural born artist but neither of our parents could draw worth a darn. Makes you think, doesn’t it? Tee Hee Hee (with apologies to Squeeky)

  12. Ellen,

    Keep pounding on the birthers for their disconnection from reality! 😉

    I believe that the first evidence of the (local) roundness of the Earth was when ships were first able to sail out of sight of the shore–and the body of the ship disappeared before the mast. On a tangential note, we can now see where we parked our car–on the Moon! (Sadly the technology does not exist to find the keys…) That wont dissuade those that think it’s a hoax any more than bouncing a laser beam off of the Moon did. I think Buzz Aldrin got it right:

  13. mrjr1011, November 17, 2011 at 9:55 am

    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?

    Well, here is where the 1st misunderstanding seems to keep popping up with few researching for real understanding of what is said and meant.

    “Common Law” if Enjglish or other is NOT a body of promulgated Laws but rather is the system by which cases and controveries are adjudicated.

    The ‘common law’ system had’hjas developed a ‘body’ of Writs, Rules and Regulations that are developed to advance varios types of ‘case and controversy’, be they civil or criminal in nature, money and property, damages and assaults, so on and so on.

    Common Law is the SYSTEM, Statutory Law regulates according to the needs of the society. They at times fall into conflic, b developed toe it by breach or in interpretation and the common law is the system developed by civil societies to aid in finding justice and or equity.

    Look, Gray in the WKA Opinion and decision is flawed in sooooo many ways that it is hard for me to give it ANY consideration except as an example of Judicial arrogance and incompetence.

    For ANY that wish to truely understand the definition, meaning and intent of the usage of the term of words, natural born Citizen, made idiom by its usage, need look no farther than the Declaration of Independence, the John Jay letter suggesting the prudent measure that the Office devolve to known but a natural born Citizen as a National Security measure, the Constitution, the 1790 Act to make an uniform Rule on naturalization and the 1795 Act repealing and revising the former.

    It is ALL right there providing each, definition, meaning and intent without any ambiguity for those willing to look oblectivly and with a modicum of intellectual honesty.

    I have waded through for the past three years reading the minutia offered as creditable interpretationsof what the U.S. Law is in regard to the definition of NBC, all of whitch I have PROVED wrong by virtue of confronting Guv’mnt Agencies and Courts seeking to be acknowledged as being an American NBC.

    If it were as the 0’poligists say that it is it should be a simple matter for a Guv’mnt agency and or Court to say so and, not withstanding the three stooges of the Akney three Judge panel making an unsupported claim as to the ‘0’s status, there are ONLY “dicta and rhetoric” as to the definition that would satisfy the needs of the Constitution.

    Look, other than Mexico, I know of NO Country that does not extend “citizenship” the the children born of Citizen Parents, these are, in the words of Aristotle, the “true citizens”, although he posited it might take three of 4 generations for their production. But in all cases I have found it is the nature of the “custom, tradition and or laws’ that the children born of parents who are themselves citizens are ‘natural born citizens’. That too was the custom, tradition and “common law of England up until Queen Anne.

    Her Reign was the period in which Britain embark3d upon Empire Building and the Colonization of distant lands with the MOTTO, “Where there is a Englishman, there then is England”. To accommodate the needs of Ruling the ‘native peoples’ of the distant lands she, under the political theory of the Divine Right of Kings, deemed that all that were conquered were then “DEEMED” the Subjects of England and were considered so AS IF from birth and would remain so for life.

    But what is lost in the Lord Coke, Blackstone and from the English Statutory Laws cited by most and especially in WKA is that there were various categories of Status and Classes of denizens & subjects with ANY Public Office of the Monarchy off limits to ALL but that ‘natural born subjects’ that were indeed the prodigy of “true subjects’ and or the Royal MONARCHY across the Continent.

    In other words the nature of the American Citizen, made individually and mutually Sovereign by the adoption of the Constitution is in NO WAY synonymous with the usage of the turn of words, made idiom by its usage in the Constitution.

  15. Ellen,

    You left out Stig W’s mother (Stig was born the day before President Obama at Kapiolani) who said she remembered seeing President Obama in the nursery (the only African-American baby–something uncommon at the time) with her son on CNN in April (right before President Obama whipped out his long form and broke all the birthers’ hearts…).

  16. Re: “If everything was settled about his eligibility then we would not be having this conversation.”

    Everything is settled about his eligibility. His birth in Hawaii has been proven overwhelmingly and the meaning of Natural Born Citizen includes every US citizen born in the USA. After the first pictures of the earth taken from satellites showed that the earth was round (and there had been considerable evidence long before that of course), a few people continued to insist that it was flat.

  17. @ballantine,

    Nothing was twisted and you’re actually helping support my point. You 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.””

    I already pointed this out when I talked about Miller not “completely investigating” the subject at hand in Slaughterhouse. This is why Gray went on to cite Minor and Elk. The ONLY thing Gray actually took exception with from the exclusions in Slaughterhouse was the inclusion of consuls. Gray clearly agrees children of foreign ministers should be excluded. He cited Elk to show the court was committed to excluding children born of foreign subjects, but worked around this by saying Indians were part of “alien nations” and not “foreign States.” Note that Gray doesn’t actually explain nor support what this difference is. This is pretty hypocritical after criticizing Slaughterhouse by making a statement “unsupported by any argument, or by any reference to authorities, and that it was not formulated with the same care and exactness …” This is exactly what Gray did with his alien nation distinction.

    As for your comment on Minor: Are you paying attention to what you’re saying??? Talk about stupid commentary:

    “Minor doesn’t say children of citizen are exluded from the 14th Amendment. It said they didn’t need it to make them citizens.”

    This means the same thing. Waite specifically said the 14th amendment did not confer citizenship on Virginia Minor. His reasoning is based on definition of citizenship for a class of people: those born in the country to parents who were its citizens. These people did NOT need the 14th amendment and it did NOT confer citizenship on this person. Further, the syllabus, which was cited in Ex Parte Lockwood notes:

    “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 …”

    Note that it says SINCE the adoption of the 14th amendment … this means the 14th amendment has no affect on this class of persons who were characterized as natural-born citizens. It EXCLUDES them.

    Your comment from page 675 says, “all white persons, at least, born within the sovereignty of the United States, whether children of citizens or of foreigners, excepting only children of ambassadors or public ministers of a foreign government, were native-born citizens of the United States …” This is limited only to white persons and it’s based on a handful of cases that were influenced by state laws, such as Lynch v. Clarke, that were not universal. If this were a compelling argument, then you would agree that Gray could have stopped here, but he did not. Instead he continued his decision for another 40 pages. He went on to affirm and uphold the Minor decision and its exclusive definition of natural-born citizen which is a different term. Minor’s definition is the final place where Gray uses the term in WKA. Clearly that definition did NOT apply to Wong Kim Ark. From the point forward, Gray uses a different term — citizenship by birth — that is defined only by the 14th amendment. This is different from NBC because Gray clearly acknowledges that NBC is NOT defined by the 14th amendment (again, NBCs were excluded). Gray says so very clearly here:

    “In Minor v. Happersett, Chief Justice Waite, when construing, in behalf of the court, the very provision of the Fourteenth Amendment now in question, said: “The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that.” And he proceeded to resort to the common law as an aid in the construction of this provision.”

    Do you understand that?? When construing the 14th amendment, the Constitution does NOT says who shall be NBC. IOW, this says the 14th amendment does not define NOR redefine NBC. The common law, according to Gray, was only used as an aid to construct the citizen provision of the 14th amendment. It was NOT used, according to this paragraph, to define NBC in Minor. The definition that was used in Minor was a verbatim match of the law of nations definition, which can be clearly seen by putting the definitions side by side.

    Gray used common law to establish what he calls citizenship by birth, defined specifically by the 14th amendment. He says so here:

    “But citizenship by birth is established by the mere fact of birth under the circumstances defined in the Constitution.”

    Do you understand that?? NBC is NOT defined by the constitution. CBB is defined BY the Constitution in the 14th amendment.

  18. Ellen, back off the birther comments. I don’t care where he was born. I am not affiliated with any political party. Don’t assume because I have questions that you can label me.

    If everything was settled about his eligibility then we would not be having this conversation.

  20. Komfort,

    I’ll accept that you’re not a birther (and answer your question about the logical structure of the quote) provided you can say “shibboleth”. In this context, “saying shibboleth” is equivalent to saying: “I believe (or know) President Obama is a natural born citizen and eligible for the office of POTUS.” No birther can do that.

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