-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.
ellen,
Reality Check did an interview of a Questioned Document Examiner on his web radio show a while back–it was very interesting (and supports your point about what the birthers should have done if their allegations had merit).
ksdb,
What you just demonstrated was an attempt to lie with statistics. Badly. You should be ashamed at your pathetic attempt to propagandize.
@ Slartibartfast, sorry but this is lame and lazy.
Second, Chiyome Fukino never said anything about Obama’s alleged birth certificate under oath. She presented a written statement. The stuff about numbering in “batches” is outright BS.
Re: “The seals on Obama’s alleged birth certificates do NOT match the official seals as described in the HI DOH’s own rules:”
Answer: That is what YOU say. Do you have any confirmation? Neither the current officials in Hawaii nor anyone else has said that there is any difference between the official seal on Obama’s birth certificate and what is supposed to be there. HOWEVER, if you really believe that the seals are different, then why not ask to see the official physical copy and take it to be examined by the American Board of Forensic Document Examiners or the American Society of Questioned Document Experts or the Association of Forensic Document Examiners?
Re: “There was no legal confirmation in a court of law by ANY Republican official. Remember, a bona fide birth certificate is considered to be self-authenticating in a court of law (which is why a COLB says it is prima facie evidence in any court proceeding). To date, neither of the two alleged birth certificates has been presented in ANY court?
Answer: So what? THEY SAID IT. And no official of any kind has made a statement about George Bush’s birth certificate. If the officials had said that the birth certificate were forged, THEN it would go to court, but they didn’t. (Why haven’t any of the Republican candidates shown their birth certificates????)
Re: “The so-called notices of birth in the Hawaiian newspapers do not list a place of birth. The notices only prove that a birth was registered with the state. We all know that the state rules in Hawaii allow the registration of out-of-state births.”
Answer: They did not allow registration of out of state births in 1961, and they did not send out notices of birth for persons born outside of Hawaii. When there was a claim that there was a birth outside of a hospital, they insisted on a witness statement—so they could not have been fooled by relatives.
Re: “The travel documents requested for Obama’s mama were conveniently missing for all dates prior to 1965. This simply leaves open a myriad of unanswered questions.”
Answer: Birthers did not even ask to see Obama’s mother’s passport details in the file. They only asked to see the APPLICATION for the passport in the files. The passport document is in the files, but they didn’t ask to see it. The applications in the file were eliminated—but then millions of such applications were scrapped to save space in the 1970’s or 1980s. The FACT is that if Obama were born out side of Hawaii, he would have had to have a travel document in 1961—and no such document has been found. And he would have to have been checked into the USA by the US Immigration Service in 1961, and no such record has been found.
Re: “This story identifies Rodney West as the “obstetrician” who delivered Obama. The shiny, brand new birth certificate PDF was not signed by this doctor. “
Answer: The story made an error about who the delivery doctor was. Rodney West was HEAD OF OBSTETRICS at the hospital, He talked about a delivery at the hospital. That the reporter thought that the delivery was by him; that is is a mistake. The fact is that the teacher remembers Rodney West saying it and writing the letter about it to her father.
Re: “The grandma did NOT repeatedly say Obama was born in Hawaii. The interpreter was the one who made this claim. “
Answer: Sure, everything went through the interpreter. You don’t believe the interpreter? Okay, you don’t—big deal. In fact, the grandmother was also interviewed by the Hartford Courant newspaper, and it reported (again using an interpreter—what else) that she had said that the first that her family in Kenya had heard of Obama’s birth was in a letter from Hawaii. A LETTER FROM HAWAII.
Re: ‘ The mother of Stig W. story is pretty weak. Obama’s mama’s friend Susan Blake described baby Obama as pink, not black.”
Answer: Okay, I have no idea whether Obama was pink or black. The fact is that the Stig W definitely was born at Kapiloani Hospital because he has shown his birth certificate, and his mother says that she noticed a black child. You think that she is making it up? Okay you do.
You think that she is lying, and the teacher who wrote home about the birth is lying, and the officials in Hawaii are lying, and the interpreter is lying, and the absence of a travel document can be explained, and the notices in the newspaper are due to the government of Hawaii sending out a notice of a birth outside of Hawaii. Are you birthers nutty, or do you have a motive?
@ ellen, there’s nothing in the law that says the state did not send out notices of birth for births outside of Hawaii. The registrations only go by place of residence, not by where the birth occurred. The address in the newspaper report was allegedly Obama’s grandparent’s residence. It’s very typical for college students to list their parents’ address as their own permanent address. The 1961 Natality Report says 100 births in Hawaii occurred outside of hospitals or without an attendant and there were more total births for the state of Hawaii then were births listed by county of occurrence. This differential allows for 38 births outside of the state. And again, there is nothing in the law that prevents the registration of out-of-state births.
ksdb,
You are completely full of crap like all of the other incompetent birthers on this site. Your pathetic lies aren’t even worth addressing.
Moron.
ellen,
Dr. Fukino said under oath that President Obama had posted an image of his (valid) birth certificate to his website as well. This statement falls under penalty of perjury, I believe (testimony to the Hawai’ian legislature). Also, Hawai’i has never issued birth certificates to persons born out-of-state that say they were born in Hawai’i*.
If you want to really confound birthers, ask them to explain the numbering on the BCs of Stig, the president, and the Nordyke twins–it is simply explained by the BCs being numbered in roughly monthly batches after being alphabetized by last name. The numbering is: N,N,(small gap),O,(large gap),W. The birthers can’t come up with any reasonable explanation for this pattern which matches the alphabet pretty damn well (evidence that the birthers don’t understand the alphabet–good for Squeeky trying to help them upthread!).
* Incidentally, this statement is like chumming the water for sharks–don’t tell any of the birthers and we’ll see if they take the bait…
“Sorry, but this is nonsense. The quote says the court was “committed to the view” that such persons were EXCLUDED. It doesn’t say the court was NOT committed. A judgment that is UNANIMOUS expresses a very strong commitment, and the decision in Minor was the 14th amendment did NOT confer citizenship on Virginia Minor nor to women as a class.”
Gibberish. I hope you are not a lawyer. Gray said:
“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 says neither Justice Miller nor the court was committed to the view that children of aliens were excluded. That means they were not committed to such view. DUH. The Minor Court did not confer citizenship on Minor under th 14th Amendment because she was born before the Amendment as was already a citizen by birth under the original Constitution. It earlier states that women were obvisouly citizens under the 14th Amendment but goes on to say they were already citizens under the original Constitution. You are simply being dishonest to claim it says a citizen under the original Consitution is excluded by the 14th Amendment. Obviously one can be a citizen under both. In fact, basic statutory construction makes clear that the 14th Amendment would supersede any earlier definition of citizenship.
The Elk decision was also clear that for persons to be included in the citizenship clause in the 14th amendment that such persons had to be “not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction, and owing them direct and immediate allegiance;”
Yes and no one said children of aliens were not subject to political jurisdiction nor did anyone in the 39th Congress.
“The only way Gray could satisfy that Wong Kim Ark was completely subject to the political jurisdiction of the U.S. was by including the permanent residence and domicil criteria. After all, he included the same residence criteria in Elk v. Wilkins: “in the United States and subject to the jurisdiction thereof” were not intended to embrace Indians born in tribal relations, but who subsequently became bona fide residents of the several states …”
Again, you are making stuff up. Gray never states in WKA that permenant residence is necessary as his citation of Coke and temporary allegiance demonstrates. “Residence” can be either permenant or temporary and no one suggested it must be permenant to confer citizenship or political jurisdiction. Elk never defines what “complete, political jurisdiction” means, nor did anyone in the 39th Congress. “Complete jurisdiction” was only used to refer to indians who lived in territory we did not fully control. Neither Gray nor anyone in Congress said that aliens born on our soil were not completely within our political jurisdiction. Gray’s defintion of the 14th Amendment:
“The foregoing considerations and authorities irresistibly lead us to these conclusions: the Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes.”
It says “including all children here born of resident aliens,” not that the ancient rule was limited to resident aliens which clearly it was not. Gray tells us we are looking to the common law of Coke and “[h]is 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;” Temporary allegiance is clearly sufficient.
The facts simply are that nothing in Elk or Wong Kim Ark says children of foreign subjects are excluded from citizenship or that the parents need to be permenant residents or citizens, which is why we have anchor babies today.
Re: “We all know that the state rules in Hawaii allow the registration of out-of-state births.”
Actually, Hawaii did not allow that in 1961, and it did not send out notices of birth for births outside of Hawaii, only for births inside of Hawaii.
By the way, mirrose, you haven’t answered the question about why, if Obama were born outside of the USA, no travel document has been found.
Nor have you been able to explain the birth notices in the Hawaii newspapers. (Don’t say that they were ads because Hawaii newspapers did not take birth notice ads at the time.)
Re: “You were able to provide us with the originals so that there can be no longer differing assessments of electronic pictures only? Didn’t think so”
The legal copy of a birth certificate is not the original in the files. That would be damn inconvenient to use as proof of birth because it is never taken out of the files. The legal copy of a birth certificate is the official physical copy on security paper. THAT has been shown in the White House and numerous reporters there got a chance to see it, hold it, and even feel the seal on it. One even photographed it. The AP photographed the Xerox copy of it.
If WND or another birther organization thought that there was anything wrong with Obama’s birth certificate, it could ask to see the official physical copy. If the Obama team rejected that request, the organization would then report that fact. Or, if the Obama representatives did give the birth certificate, WND could take it to such organizations as the American Board of Forensic Document Examiners or the American Society of Questioned Document Experts or the Association of Forensic Document Examiners. But that has not been done.
Wonder why not? Because they prefer to lead the credulous around with the claims of “experts”.
mirrose,
The veracity of the COLB and the LFBC are unassailable in court and their validity has been confirmed (among numerous other times) in sworn testimony to the Hawai’ian legislature by the head of the only body qualified to determine the validity of Hawai’ian birth certificates.
Are you lying, willfully ignorant, or just hard of thinking? I’m guessing all three.
@ellen
1. The seals on Obama’s alleged birth certificates do NOT match the official seals as described in the HI DOH’s own rules:
http://hawaii.gov/health/about/rules/prac_proc.pdf
2. There was no legal confirmation in a court of law by ANY Republican official. Remember, a bona fide birth certificate is considered to be self-authenticating in a court of law (which is why a COLB says it is prima facie evidence in any court proceeding). To date, neither of the two alleged birth certificates has been presented in ANY court proceeding.
3. The so-called notices of birth in the Hawaiian newspapers do not list a place of birth. The notices only prove that a birth was registered with the state. We all know that the state rules in Hawaii allow the registration of out-of-state births.
4. There’s still an absence of legal evidence Obama was born in Hawaii or that he was EVER in Hawaii in 1961. The travel documents requested for Obama’s mama were conveniently missing for all dates prior to 1965. This simply leaves open a myriad of unanswered questions.
5. This story identifies Rodney West as the “obstetrician” who delivered Obama. The shiny, brand new birth certificate PDF was not signed by this doctor. It relates that story as happening sometime during the day (Obama was born at night). There are plenty of holes in this story.
6. The grandma did NOT repeatedly say Obama was born in Hawaii. The interpreter was the one who made this claim.
7. The mother of Stig W. story is pretty weak. Obama’s mama’s friend Susan Blake described baby Obama as pink, not black. It’s doubtful that the baby would have stood out from any others if it was indeed born at Kapiolani, especially since Obama’s father wasn’t there.
Re: “the high powered firm used in all the litigation and their rates….they aren’t paid peanuts since only money speaks to these types.”
Odd that you should not remember it but law firms are hired to do a lot of things, not just defend birther cases. For example, during a presidential campaign, the campaign has to rent a lot of offices, and the law firms have to check the contracts. I read somewhere that McCain’s campaign spent some $1.2 million on its legal representation, and it had hardly any birther cases to defend.
Now as to the estimated cost of defending birther cases. The law firm would get some tens or twenties of thousands of dollars to defend the first case (but I understand that some were done pro bono), and then they would file THE SAME LEGAL PAPERS to get all the other cases thrown out. Not much money involved. Yet you were ready to believe that there was millions.
Ballantine,
You said: “Why didn’t other Supreme court decisions addressing questions of whether citizens had certain rights address their citizenship status. Simply stated, if citizenship is not necessary to answer the question presented it does not need to be address and issues not raised are waived.”
Perhaps because their whole argument did not proceed upon that idea?
““. 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.”
ellen
1, November 17, 2011 at 2:04 pm
——————————–
You were able to provide us with the originals so that there can be no longer differing assessments of electronic pictures only? Didn’t think so. Of course, to demonstrate your good will, you might try, but I’ll simply warn…you won’t get very far with this “transparent” office holder and his willing obfuscators, including his personal mouthpiece media!!!
And those “images” (which you appear to certainly desire to trust with every fiber), suddenly forced to present themselves as exact copies of originals held in secret, differ in fact with the prior and recent to their presentation description by HI DOH official herself on national TV (oops!), of same originals which she had witnessed and which these so called “copies” were to exactly represent. Her description of such, as witnessed by herself was that they were (and still are apparently then) “partially written and partially typed”.
“They’re going to question the ink on which it was written or say it was fabricated,” said Fukino.
……..Fukimo said she has personally inspected it — twice.
…….She found the original birth record, properly numbered, half typed and half handwritten, “
http://www.msnbc.msn.com/id/42519951/ns/politics-more_politics/t/ex-hawaii-official-denounces-ludicrous-birther-claims/
So where is the exact match? Ahh, ye of so easy trust, even after the immense amount of error exposed via those who don’t so easily trust.
And you who doubt the amount of filthy lucre “earned” during 3 and more years of defending the secrets? Check out the high powered firm used in all the litigation and their rates….they aren’t paid peanuts since only money speaks to these types. Just the mere request of the entrance forms to Occidental, with the admission by the officials there as legal, was met with strong “threat” for monetary payment if such request were not withdrawn. So what is our “guy” so fearful of as demonstrated by his extreme lack of “transparency” that EVERYTHING of his past remains without backup of support in fact?? What are you as well so fearful of finding that you too would support such duplicity?
Didn’t see any refutation of your own gov’s site that shows you more of the error of fraud….what about “no match” flagging don’t you conveniently get?
And people want to spend sweat on what isn’t as blatant and what is only historical and not as yet clearly defined when you have this in the present staring you in the face as evidence of fraud? Go figure.
“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?”
No. This was not a diversity case, so citizenship was not relevant to jurisdiction in this case. Minor was not a citizen of a different state than the defendant. This was a federal question. The Minor Court was actually pointing out that citizenship is necessary in diversity cases and, in all the multitude of such cases, no one had ever suggested women were not citizens for purposes of jurisdiction.
“If found not to exist the case must be dismissed. Notwithstanding this the records of the courts are full of cases in which the jurisdiction depends upon the citizenship of women, and not one can be found, we think, in which objection was made on that account.”
Such citation is not talking about jurisdiction of the Minor case. Again, if determination of citizenship was necessary, why didn’t the Missouri Supreme Court even mention Minor’s citizenship status when addressing the same question as the Supreme Court? Why didn’t other Supreme court decisions addressing questions of whether citizens had certain rights address their citizenship status. Simply stated, if citizenship is not necessary to answer the question presented it does not need to be address and issues not raised are waived.
“Out, out, prolix birthers! Birtherism’s but a walking shadow, a poor player that struts and frets his hour upon the stage and then is heard no more: it is a tale told by an idiot, full of sound and fury, signifying nothing.” – Macbeth (Act V, Scene V).
Would you like some dead horse with that?
Now, for those of you who still believe that Obama could have been born somewhere else than in Hawaii, a question for you:
I’ll bet that you know (but probably have forgotten) that the US government requires, and has long required, that a child being carried into the USA requires some kind of official travel document to be admitted. This is usually a US passport for the child. Or, it could be the fact that the child is entered on the mother’s US passport. Or, it could be a US visa for the child on a foreign passport. Without one of those, we would not let the child into the country.
So, IF Obama really had been born in Kenya (or in any country other than the USA), he would have had to have one of those documents–wouldn’t he? His family would have had to show the passport, wouldn’t they? To show the passport, they would have had to have applied for the passport or the visa for Obama. And, if Obama really were born in Kenya (or another country), they would have had to have applied for it in the US consulate or embassy there, wouldn’t they?
Such applications are FILED by the US government. The documents exist in multiple files, the actual application itself, communication about it with Washington, entries in the passport file, entries in the application file, entries in the places where the child is carried into the USA. The Bush Administration was in charge of the State Department and the INS for eight years before Obama was elected. Don’t you think that they would have checked the claim that he was born outside the USA?
All they had to do was find one of those files and McCain would win the election.
Well, they never did. There is no such file.
So the question is, do you think that the Bush Administration was part of the plot? Do you think that the files, the documents, the application for the documents, the communications about the documents were all lost or hidden? Remember, they are in multiple files, the file of the passport holder, the files of applications for passports, the files in the US embassy in foreign countries, the files in the State Department and in the INS (which would have checked in Obama at an entry point if he had actually traveled in 1961)–and yet no document has been found. Why not?
The absence of the travel document, plus the Hawaii birth certificate, plus the notices in the Hawaii newspapers, plus the witness who remembers writing home, plus Stig W’s mother. Want more proof?
Komfort,
You get an “F” for that answer and I’m starting to suspect that you can’t say “shibboleth”…
@ballantine: You said:
“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.”
Sorry, but this is nonsense. The quote says the court was “committed to the view” that such persons were EXCLUDED. It doesn’t say the court was NOT committed. A judgment that is UNANIMOUS expresses a very strong commitment, and the decision in Minor was the 14th amendment did NOT confer citizenship on Virginia Minor nor to women as a class. The Elk decision was also clear that for persons to be included in the citizenship clause in the 14th amendment that such persons had to be:
“not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction, and owing them direct and immediate allegiance;”
Elk continued:
“And the words relate to the time of birth in the one case, as they do to the time of naturalization in the other. Persons not thus subject to the jurisdiction of the United States at the time of birth cannot become so afterwards except by being naturalized, either individually, as by proceedings under the naturalization acts, or collectively, as by the force of a treaty by which foreign territory is acquired.”
The only way Gray could satisfy that Wong Kim Ark was completely subject to the political jurisdiction of the U.S. was by including the permanent residence and domicil criteria. After all, he included the same residence criteria in Elk v. Wilkins:
“in the United States and subject to the jurisdiction thereof” were not intended to embrace Indians born in tribal relations, but who subsequently became bona fide residents of the several states …”
You said: “Waite clearly looked to the common law to define “natural born citizen.”
Please show which part of the common law that Waite looked at. I’ll Waite.
Ellen,
Give mirrose a break–it could just be stupid and willfully ignorant. I would note that John Woodman (an anti-Obama conservative) has also written a book and has a website:
http://www.obamabirthbook.com/
Which says that none of the dozens of forgery claims he investigate has any merit whatsoever and that the purveyor of the POSFKBC (Piece Of Shit Fake Kenyan Birth Certificate–as it is commonly known) is Lucas Daniel Smith (it’s an open question whether or not he forged it or is just trying to use it in a con). By the way, if you need to prove that it is a fake, just looking at it with any degree of objectivity will do the trick, but these are some of it’s flaws:
Baby footprints
Hospital administrator’s name misspelled on stamp (commonly misspelled in many sources which a forger may have come across…)
Wrong administrator when the document was allegedly explained
height/weight on form (atypical)
shoulder width on form (unusual statistic–I know of no other example of it being on a birth certificate)
statistics combine to be outside the norm of human variation (unlike President Obama)
incorrect date format (US not UK)
completely different than known (and rather distinctive) Kenyan birth certificates
A dramatization of what “I, Lucas Smith” claims:
http://www.thefogbow.com/forum/viewtopic.php?f=24&t=3806#p132113