-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.
raff,
That’s why I told you to go there!
Komfort,
If you weren’t a birther, your answer wouldn’t depend on Minor (ruling or dicta) and your request is somewhat disingenuous because my original point was about birthers misunderstanding the quote you posted because they don’t know the difference between “If A then B” and “if not A then not B”. Do you know? (the fact that you had trouble with Squeeky’s analogy argues that you don’t…)
Otay Scribble comments often but is never certain.
Slarts,
My happy place has no math problems allowed!
I have no answer until the dicta is resolved. Honest.
I thought a rational discussion would sway my opinion. It has been hit and miss today.
I would like to know what Minor really said. I would like to know why Minor was used in WKA. And I would like to know the true rationale of both opinions.
Nal is searching for the same thing, without being forced to join a side that will profit or perish from the conclusion.
I believe the quote from Minor has only one way of being read. I asked the math guy for help, instead I need to buy a Nancy Drew decoder ring.
Now, i am whining.
I cannot force anyone back to the topic, but I wish I could.
Komfort is one of those folks who are often wrong, but never uncertain.
Komfort,
Search this thread for “shibboleth” and you will see what I mean (you would have known already if you could actually read and comprehend others comments…).
Nice example on whining. Queef knows the code and handshake. It is up to you to help her mess of an analogy.
Komfort:
In your opinion, is Obama a natural born citizen and eligible for the presidency??? If no, why not. If yes, based on what. Just a short answer is fine with me, unless you are feeling wordy.
Squeeky Fromm
Girl Reporter
cyn,
Sorry, it’s too late–you’ve already shown that you have no credibility (your cut-n-paste journalism was just one example, but there is plenty more to choose from…)
Komfort,
No, you asked me to do something and I told you that I would do it if you met a condition. So far, you have failed to do so. I’ve never told you what to talk about, by the way, I’ve just noted that what you do say seems to indicate that you are a birther… I’ve told you what you need to do to convince me otherwise–either do it or don’t, but quit whining, it’s pathetic.
Slarti, yesterday you told me”If someone is interested enough in the discussion to join it, then you don’t get to tell them what they can or cannot talk about.”
I assume you are not interested and that is why you are telling me what to talk about.
http://citizenwells.wordpress.com/2011/11/17/obama-uncle-onyango-obama-due-in-court-november-17-2011-illegal-alien-since-1992-deportation-order-never-enforced/#comments
Squeeky,
That there is an example of birther journalism: no link, no primary source, no credibility whatsoever…
mirrose,
How do you explain the unblemished record of epic FAIL that is the birther movement? How do you explain not knowing the difference between a nation and a state? How do you explain your endless repeating of long-debunked lies? I think that the fact that you are an unPatriotic birther bigot who probably denigrates the Constitution whilst wrapping itself in it is explanation enough…
cynkading,
Hey, at least you found a new lie…
Awwww Slartibartfast, you talk so purdy……
brought this over from one of my favorite sites……
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
Citizen Wells site….
yo | November 17, 2011 at 12:54 pm |
A fly on the wall in the social security administration says that there are furious efforts to contrive documents showing obama’s ssn is authentic before the meeting in new hampshire. Yelling, screaming and threats are being leveled against anyone who will not co-operate. It is said that it doesn’t matter what the contrived evidence is or whether it looks authentic or not, because the network news contacts have assured the white house that anything will be accepted.
Informed sources say that the white house will refer to anyone who doesn’t accept the dubious documents as authentic is a hate mongering racist and doesn’t deserve any media attention.
-the ghost of Jack Anderson
Squeeky,
What I’m wondering is if he just can’t bring himself to say “shibboleth” or if he just doesn’t understand what I mean…
Slartibartfast: 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!
————————————
Well, since you didn’t comprehend the info re: the same “freedoms” towards acquiring Certificates extending to O’s time, I’m afraid you aren’t in any place to advise those providing you with helpful info to unconfuse your confused mind re: incompetency. Heh! So just flip your comment to reflect your own qualities of not being quite as up to snuff as you would like to convince.
Yeah, it is pretty devastating. I will give you that.
[raff… close your eyes and go to your happy place.]
Squeeky,
It’s a trick question–if one answer is right then it would be 25%, but if A and C are correct the odds of guessing correctly would be 50%, and if one of three equally likely choices were correct it would be B. D is right out.
[Okay, raff, you can open your eyes now.]
The people at the Fogbow like anyone who engages in good faith-but your recent series of smackdowns certainly caught people’s eye…
http://www.thefogbow.com/forum/viewtopic.php?f=25&t=3044&start=2100#p304715
Your exploits were also noted on the threads for Mario and Leo (when they were having their lack of a clue ).
mrjr101,
No you wouldn’t. Breaking down the logic of a quote exposes meaning not consistency–that’s something you need to avoid at all costs. You can’t lie in the language of mathematics–that’s why lying with statistics is so effective…
Komfort,
I’m avoiding breaking down the logic of the Minor quote for you because you haven’t said “shibboleth”* (and proved you weren’t a birther). That’s my price–I don’t care if you pay it or not. American soldiers in the Pacific in WW II used “Lollapalooza”–if the first two syllables came back “rorra”, they opened fire. Be glad I’m just going to excoriate you if you can’t say it…
* http://en.wikipedia.org/wiki/Shibboleth search on the term in this thread if you want to know what I mean by “shibboleth”…
Fred,
But you’re guessing randomly amongst four answers… 😉
cynkading,
The SS# in question (which Orly Taitz should be disbarred for spreading over the internet in my opinion) was most likely (even the SSA says the state codes are unreliable) the result of the confusion of a “0” and a “9” in President Obama’s zip code by a SSA clerk. I would also note that it is a crime to check the number on e-verify (asserting you are President Obama’s employer), the person (Hollister) who originally got the number did so fraudulently (by registering on a (government) website as President Obama and getting the Selective Service form mailed to him, and the number almost certainly fails a check because President Obama has been assigned a new one (due to the old one being plastered around the internet by the most incompetent lawyer in the world–Orly Taitz [my opinion]).
You’re just a pathetic, incompetent birther. What are you going to try next? Indonesian Adoption? Pakistani travel ban? There is no birther argument with any merit whatsoever, so why don’t you and the rest of your impotent birther friends just STFU?
From Minor:
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.
Frommme a minor:
At common-law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all rabbits were mammals, and their children were mammals, too. These were mammals, or common sense mammals, as distinguished from critters like platypuses or weird animals. Some authorities go further and include as mammals, platypuses. 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.
In order as written. ( I did my best)
Rabbits=children or parents
Mammals=citizens
Children=?
Mammals=natives
Common sense mammals=natural born citizens
Platypuses=aliens
Weird animals=foreigners
Mammals=citizens
Platypuses=children with no reference to citizenship of parents
As near as I can tell, platypuses are not considered common sense mammals. Maybe your BFF highlighted Minor for you after all.