-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.
rafflaw:
Yes, it is science fiction. Long ago, on a planet far away, named Minor Happersett 4, a group of space cadets. . .OH that reminds me of the Mars Need Vattel Birthers thingie!
http://birtherthinktank.wordpress.com/2011/10/07/mars-needs-vattel-birthers-do-you-have-what-it-takes/
Tee Hee! Tee Hee!
Squeeky Fromm
Girl Reporter
(PS: Stuff like this is why the Vattle Birthers just hate me.)
ellen,
When I posted this:
I was referring to someone bringing up this:
I assume this is supposed to be persuasive because the document standards for an island nation in 1904 are such strong precedent for documents in a US state in 1961…
mirrose,
Thank you for providing a wonderful example of how predictable and incompetent birthers are. You did a very good job! 😉
Re: “We know Maya Soetoro-Ng, Obama’s sister has a Hawaiian Certification of Live Birth too, and she was born in Jakarta, Indonesia. You can be born anywhere and get one.”
That also turns out to be false. A prominent birther, Leo Donofro, did some excellent work using the Hawaii version of the Freedom of Information Act (whose name I forget), and he found out that Maya did not even have a file in the Hawaii birth registry files.
It is true that after 1982 Hawaii allowed, and still allows, people who have children out of state to have their births registered in Hawaii. But Obama was born before 1982, and the law does not allow such a registration to lie about the place of birth. In other words, IF Maya had had a Hawaii BC, it would say “Hawaii BC: Place of Birth: Indonesia.”
@ Slartibartfast, name-calling is lazy. I’ve sourced much of what I posted. Did you read the Fukino “testimony”?? Where does it say that Obama’s alleged COLB was genuine or that it was even a “certified” copy??? She claims she couldn’t disclose any information about these records. Here’s what the law says:
“Index data consisting of name and sex of the registrant, type of vital event, and such other data as the director may authorize shall be made available to the public.”
Do you see the part that says AS THE DIRECTOR MAY AUTHORIZE. The part about the direct and tangilbe interest has an exception. It says:
” except as authorized by this part or by rules adopted by the department of health.”
Under the rules adopted by the DOH (of which the director has broad authority), it says that an abbreviated copy of a birth certificate can be released to ANY person requesting it (see page 4 of chapter 8B in the link below):
http://gen.doh.hawaii.gov/sites/har/AdmRules1/8%208A%20B%20VR%20Admin%20Rules.pdf
Why didn’t Fukino explain any of this to the HI legislature in her statement? Try to focus on that, as there is a serious attempt here by the DOH to withhold information and documentation that can legally be made public.
Squeeky,
That complaint is pure science fiction. The attorney who filed it should be ashamed of him/herself.
Slarts,
Thanks for keeping the math out of it!! 🙂
Re: “Ellen, did you go to the link I provided?? The seal is clearly explained. Neither seal on the alleged birth certificates match this description. I don’t need to take anything to the American Board of Forensic Examiners as there is nothing to show them.
Answer: Once again it is only you who say that there is a difference between the seal on the Obama document and the official seal. There is no confirmation. If you want confirmation, the way to do it is to get a real document specialist or several to look at it.
Re: “George Bush is a deflection.”
I disagree. Birthers have made up a story about Obama being born outside of the country. I pointed out that it was not normal before their unsubstantiated claim to examine birth certificates. That is still the case. None of the Republican candidates for president has shown her or his birth certificate, much less have it examined. Do I have to make up a story about them so that they show birth certificates and have them examined? If so, that is easy to do.
Re: “One of the Republicans who vouched for Obama’s birth certificate, former HI Gov. Linda Lingle, told an outright lie:”
Answer: Sure she did. I suppose the other two (Fukino and Okada) did too?
Re: “we issued a news release at that time saying that the president was, in fact, born at Kapi’olani Hospital in Honolulu, Hawaii.”
Answer: An error, not a lie. Say that they had prepared a draft press release including the name of the hospital, and it was looked at by the lawyers and the lawyers said that they could not give those details but the governor had only seen the draft press release. The fact is that the press release said that there was a record of Obama in the files, and a subsequent press release said that the records in the files VERIFIES that Obama was born in Hawaii.
Re: “The law does NOT prevent the registration of out-of-state births. I’ve already shown that the total number of births for the state of Hawaii exceeded the numbers of birth as occuring within Hawaii.”
Answer: The law prevented the registration of foreign births. The law allowing registration of foreign births did not come into force until 1982.
Re: “The State Department claimed the pre-1965 passport records had been destroyed, even though others have been able to obtain their own family’s pre-1965 records. There are no paper trails to show that any legitimate directive was given to destroy such records.”
Answer: IF the State Department were lying, the people who worked at the State Department at the time could refute the statement, and no one has. It is completely believable that applications for passports were scrapped to save space.
Re: “The only fact is that we have someone whose story has a bunch of holes. If Rodney West was an administrator at the hospital, he most likely left before any baby was born. “
Answer: Sure he did. All that had to have happened was that the doctor or a nurse told West, who thought that the name was interesting and remembered it, and told the teacher. For the teacher to have made up the story she would have had to have researched the name Rodney West and, conveniently, changed the name of her father to Stanley so that she could say that she wrote home to her father Stanley about a birth to a woman named Stanley.
Re: “When did the Hartford Courant do the interview?? Let’s see this story.”
Glad you asked:
“Six months after they wed, another letter arrived in Kenya, announcing the birth of Barack Hussein Obama, born Aug. 4, 1961. Despite her husband’s continued anger, Sarah Obama said in a recent interview, she “was so happy to have a grandchild in the U.S.” (
http://www.courant.com/news/nationworld/world/chi-0703270151mar27-archive,0,2145571.story?page=4
Slarti and raft:
Do not forget the suits already filed by the Liberty Legal Foundation. Here is the federal suit:
http://libertylegalfoundation.org/wp-content/uploads/2011/10/Federal-DNC-Complaint.pdf
I bet their name comes from the fact they take “liberties” with “legal” stuff.
Squeeky Fromm
Girl Reporter
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.
——————————–
ooh wow! Now there you go….for sure ROFL! Thank God that HI was chosen as THE go to place for “trustworthy” info….many tittles have been tattled BUT the original nowhere to be seen….hmmm why? And thank God also for O that his defenders are simply lemmings of useful service to the secrets. A little of that “willful ignorance” as prescribed to myself above with no refutation of the facts presented?:
As an island nation, Hawaii has had procedures in place to allow for “stragglers” who were born on other islands, or in other countries (Guam is similar, BTW). Such is the “loophole” Sun Yat-sen exploited, Chinese revolutionary and political leader often referred to as the “Father of Modern China.” He was able to file a “Certificate of Hawaiian Birth” application and immigrate to the US in 1904 using the form. Yat-sen was born in Guangdong province, China, in 1866. His “Certificate of Hawaiian Birth” was issued based on Sun’s typewritten testimony rather than on any documentation from witnesses. The “Certificate of Hawaiian Birth” for WAS STILL ISSUED UP UNTIL 1972; BHO was born in 1961.
……..This Certificate of Hawaiian Birth, dated March 14, 1904, was issued after Dr. Sun signed a raggedy type-written statement affirming that he was born in Hawaii on Nov. 24, 1870.
Sun Yat-sen was born on November 12, 1866, to a peasant family in the village of Cuiheng, Xiangshan county , Guangzhou prefecture, Guangdong province (26 km or 16 miles north of Macau), not Hawaii, as this document affirms.
We know Maya Soetoro-Ng, Obama’s sister has a Hawaiian Certification of Live Birth too, and she was born in Jakarta, Indonesia. You can be born anywhere and get one.
http://theobamafile.com/ObamaCOLB.htm
The exploitation of such a “system” is quite evident in the obvious lack of any basis in fact with backup material worthy of the tale …. other than hearsay stuff proclaimed and easily manipulated by the rather confused family who itself can’t even get the simple fact of just which hospital this marvellous story occurred, or, for that matter which country! Two different ones claimed by brother and sister themselves in the one country people here wish to accept and another one across the sea claimed by that other “family” member! With this bunch that swampland in Florida could be sold many times over!!
Hi raff! Thanks! (that wasn’t math above–it was just logic–really! 😉
I believe that the current scorecard is something like 0-75, but Orly Taitz (who still has yet to be disbarred) has filed in New Hampshire and I’m guessing we’ll have a steady stream through primary season increasing into the general, so I bet they’ll reach the century mark by election day…
ellen,
I came up one short of two dozen for the number of errors of fact, obfuscations, logical fallacies, and outright lies in ksdb’s post at 4:34pm–how about you? Wait a second… two dozen… minus one… that’s… 23! Oh no–ksdb is an Illuminati agent! Whatever will we (fnord) do?
ksdb,
You haven’t contributed a single true or insightful statement to this discussion–why should anyone respond to you?
@ellen, you’re ignoring that I’ve already explained that the state deparment claims the pre-1965 documents were destroyed. Obama would have traveled with his mother (since she took him off her passport in 1967 or 1968 — when he was listed as “Soebarkah.”). The lack of a record doesn’t prove he didn’t travel. It’s just another hole in the Obama birth myth. We don’t have a travel record to show that he went from Hawaii to Washington state either, but we do have a witness who saw him there as new, pink baby with a mother who didn’t know how to change the baby’s poopy diapers. Like the diapers, everything about the Obama myth stinks.
@ Slartibartfast, Take a look at Chiyome’s statement to the Hawaii legislature.
http://www.capitol.hawaii.gov/session2010/Testimony/SB2937_TESTIMONY_JGO_02-23-10_LATE.pdf
She wrote: “For more than a year, the Department of Health has continued to receive approximately 50 e- mail inquiries a month seeking access to President Barack Obama’s birth certificate in spite of the fact that President Obama has posted a copy of the certificate on his former campaign website.”
Sorry, but this doesn’t say Obama posted a CERTIFED birth certificate. It doesn’t say the alleged COLB is accurate. And it is an intentionally misleading statement. The inquiries aren’t “in spite” of the certificate that was posted, it was because there were serious questions about the authenticity of the alleged certificate. She also neglects to mention that she had statutory authority to disclose any and all records to address these inquiries. The Uniform Information Practices Act in Hawaii allows for the disclosure of any private records if it is outweighed by the public interest. Well, duh, if the DOH was getting 50 e-mail inquiries a month, then there was substantial public interest.
BTW, you’re doing yourself a huge disservice if you go by anything the self-name “Dr. Conspiracy” posts. This guy has been debunked thoroughly on many occasions. He does nothing but make lazy excuses.
Re: “Michelle “birther” Obama who said Kenya is her husband’s home country.”
Answer, she didn’t. She never said any such thing. IF Obama actually were born in Kenya, how did he get from Kenya to the USA without a travel document? How come he wasn’t checked into the USA by the US Immigration Service?
Slarts,
Good work here, but didn’t the courts already throw out these birther claims?
@ ellen, did you go to the link I provided?? The seal is clearly explained. Neither seal on the alleged birth certificates match this description. I don’t need to take anything to the American Board of Forensic Examiners as there is nothing to show them.
2. George Bush is a deflection. One of the Republicans who vouched for Obama’s birth certificate, former HI Gov. Linda Lingle, told an outright lie:
“You know, during the campaign of 2008, I was actually in the mainland campaigning for Sen. McCain. This issue kept coming up so much in the campaign, and again I think it’s one of those issues that is simply a distraction from the more critical issues that are facing the country. And so I had my health director, who is a physician by background, go personally view the birth certificate in the birth records of the Department of Health, and we issued a news release at that time saying that the president was, in fact, born at Kapi’olani Hospital in Honolulu, Hawaii.”
The news release that came out “during the campaign” was only released a few days before the election. It only said that an original birth certificate was “on record.” It did NOT says the president was born at Kapiolani Hospital nor that he was born Hawaii, nor that his alleged COLB was genuine. Lingle lied.
3. The law does NOT prevent the registration of out-of-state births. I’ve already shown that the total number of births for the state of Hawaii exceeded the numbers of birth as occuring within Hawaii.
4. Sorry, but this is a bunch of rambling nonsense. The State Department claimed the pre-1965 passport records had been destroyed, even though others have been able to obtain their own family’s pre-1965 records. There are no paper trails to show that any legitimate directive was given to destroy such records.
5. The only fact is that we have someone whose story has a bunch of holes. If Rodney West was an administrator at the hospital, he most likely left before any baby was born. Obama was born at night. He wouldn’t have a story to report to anyone. Sorry, but it’s nothing but a bunch of hot air.
6. When did the Hartford Courant do the interview?? Let’s see this story.
7. I don’t care about stories that magically appear ONLY after there’s a controversy and huge unexplained holes in the Obama backstory. Stig W. magically showed up when there was no logical explanation for Obama’s out-of-sequence birth certificate number. Barbara Nelson showed up when there were no witnesses to corroborate the Kapiolani story. Sorry, this stuff is a little too convenient to be credible. And each one is countered by things like Michelle “birther” Obama who said Kenya is her husband’s home country and that he returned there at a time when he hadn’t allegedly been there before. It’s countered by an Aug. 31, 1961 immigration record in which Barak Sr. fails to list having any children, and a year later, only claims one child: Roy, not Barry.
Re; “Even after 1982, a certificate for an out-of-state birth wouldn’t list “Honolulu” as the place of birth.”
That is right. And both the short-form and the long-form birth certificates do list Honolulu as the place of birth, confirmed by the officials, confirmed by the teacher who wrote home, confirmed by the grandmother who said that the first that her family had heard of Obama’s birth was in a letter from Hawaii, confirmed by Stig W’s mother, etc.
ellen,
Even after 1982, a certificate for an out-of-state birth wouldn’t list “Honolulu” as the place of birth.
Re: “Second, Chiyome Fukino never said anything about Obama’s alleged birth certificate under oath. She presented a written statement.”
Answer: Why, if there is no proof that Obama was born outside of the USA, not even a travel document, should Fukino make a statement under oath?
ksdb,
I’m sure someone will correct me if I’m wrong, but I believe that written testimony to the Hawai’ian legislature falls under penalty of perjury (and that you are a lying bigot). If you don’t like my hypothesis (originally put forward by Doc Conspiracy who has extensive experience in record keeping), then come up with one that fits the facts better. Since I know you can’t do it, I’ll just say that your response to this comment is just another example of your bad faith.
As for being lazy, what is there in the crap you’ve posted that’s worth me taking any more time than I do to expose?
Re: “there’s nothing in the law that says the state did not send out notices of birth for births outside of Hawaii.
Answer. Of course not. Do you think that they had to have a law that said that they could or could not send out notices of people born outside of Hawaii. They just didn’t. That was not the procedure. The procedure was to send out notices of birth of children born in Hawaii. And besides in 1961 a child born outside of Hawaii was not registered in Hawaii, so the officials in Hawaii would not have a record of the birth to send to the newspapers.
Re: “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.”
Answer. I agree. The address given was an address where the couple could be contacted. Maybe they hadn’t gotten an apartment yet. Are you claiming that the birth took place at that address and not at Kapiolani Hospital? If so, the witness who wrote home says Kapionali. So does the birth certificate, so do the present and former governors of Hawaii, etc.
Re: “The 1961 Natality Report says 100 births in Hawaii occurred outside of hospitals or without an attendant..”
Answer: Yes, and when the child was registered with the government THE GOVERNMENT REQUIRED A WITNESS STATEMENT.
Re; “And again, there is nothing in the law that prevents the registration of out-of-state births.”
Answer: The law in 1961 said that the DOH registered the births that were IN the state. It did not say that the DOH should or could register births outside of the state. The law was changed in 1982 to allow that, but before 1982 it was not allowed.
ellen,
I think they have a motive.