-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.
The entire discussion of citizenship in Minor is clearly obiter dicta. The question presented to the Court was “whether, since the adoption of the fourteenth amendment, a woman, who is a citizen of the United States” has the right to vote. The question did not ask if Minor was a citizen as it would have if the question of citizenship was before the court. Citizenship was conceded by defendant in the original pleadings and never raised or argued on appeal. Hence the issue was waived. The court does not need to address issues that are waived. For example, take Hamdi v. Rumsfeld, where the question presented was whether a citizen who was an enemy combatant could be detained by the Executive. The government did not argue that Hamdi was not a citizen and hence the court did not address such issue (though they were urged to by certain amicus briefs). In both Minor or Hamdi, the question of citizenship was not put before the court and hence any discussion of it is dicta.
Even, though the question of citizenship was not put before the court, it could still be precedent if part of the ratio decidendi of the decision. In other words, was such a necessary part of the rationale used to answer the question presented. In the case of Minor it was clearly not necessary to answer the question on sufferage as the court held that no one was guaranteed a right to vote under the Constitution and hence Minor’s citizenship was irrelevant to the right to vote. Obviously, it is not necessary to determine citizenship if citizenship is irrelevant to the right to vote.
Leo,
Maybe, but it lends credibility to the argument that it is dicta.
In Minor, the citing of common law just before the “natural born citizen” remark also lends credibility to the argument that it is dicta.
In Lockwood, the Court expressly left out the “natural born citizen” phrase as part of what they considered the holding in Minor.
The lack of depth of research into the definition of “natural born citizen” also lends credibility to the argument that it is dicta.
You are holding your own Leo. Truth will prevail. The “elite” are going down….
Remember who is FOR you – His plans cannot be thwarted. There is no Plan B in His order.
Remember D3
Come on, Stern–Leo has a compelling precedent to cite:
“these are my rules, I make them up”
–George Carlin re what is and is not a sport…
How can anyone argue with that?
The legal authorities cited by gorefan are compelling, but Leo Donofrio by the force of his own argument, wins the day. This bankruptcy law expert,, who understands that it is a “fraud upon the court” when a judge cites evidence that Donofrio thinks was wrong, is a legal genius who is unappreciated. From what I understand, that lack of appreciation may soon be ordered to be $128,000 by the bankruptcy court in the Chrysler bankruptcy case.
Yes, Leo is not only a bankruptcy court expert, but he is now branching out and creating new law with new interpretations of a voting case where both parties STIPULATED Ms. Minor was a citizen. Yes, indeed, the holding must have been about citizenship and how to qualify for it. Even though the court did not address the issue and mentioned in passing that others of Ms. Minor’s status were also citizens, and natural born, to boot.
Bravo, Leo. Please file a lawsuit pushing this theory and sue Justia. Maybe after you do you’ll be lucky enough to top the $128,000 in sanctions that are headed your way.
“Never mind the fact that no one has come forward to defend the authenticity of this blatant forgery.”
Other than the State of Hawaii, of course — the governmental entity that issued the document.
Leo,
I slighted you because I believe that you don’t engage in good faith. This is based on your past history–most recently you posted this comment on your blog:
http://naturalborncitizen.wordpress.com/2011/11/02/4217/#comment-19671
Now, it’s your blog and you get to do what you want on it, but if you make a big deal about only posting dissenting comments and then just post comments from sycophants it doesn’t look good…
I looked at your response and it seemed to me that you failed to refute my point, but instead of going around and around with you about the law (which I admittedly know little about), let’s talk about something I do know quite a bit about: regex. You say that Justia screwed up the citations to Minor which (presumably) caused you to miss the reference in your on-line research. Now, Justia published the line of regex in both its original and corrected form. Both lines of code do exactly what Justia says they do–one removes only spaces up until the next pipe and the other removes all characters. Now, having written thousands of lines of regex and countless lines of code in general, I can tell you that this sounds perfectly reasonable. This sort of bug happens and I wouldn’t expect a free site like Justia to have the best quality control. On the other hand, your theory is incredible and lacks any evidence. Evidence, in this case, would be a citation which should have been mangled by the regex that was correct when the bad line of code was running. So either you didn’t think about this (which speaks to the credibility of your allegations–if you didn’t then your opinion of Justia’s explanation isn’t really worth anything, is it?) or you couldn’t find this “smoking gun”. Either way, I don’t think your allegations are anything but frivolous (especially if you are wrong and every other lawyer is right about Minor) and I think that you are aware of this and it is one of the reasons that you wont even try to take this to court. In any case, I don’t bear you any ill will either (unless I see you across a poker table in which case I’ll be aiming to take you down hard–and you wont know who I am… ;-)) so peace to you to.
Kevin Kesseler (since you were signing with your real name…)
p.s. I think the whole “Paraclete” thing is pretty funny–you must have been smoking some pretty good shit…
Ray,
Clearly you aren’t very bright. John Woodman (a conservative who greatly dislikes President Obama) looked at every so-called “expert” claim of forgery and determined that there was absolutely no credible evidence of forgery whatsoever. Combined with the fact that there would be no reason to make a forgery (as the Hawai’i DoH would necessarily have to have been in on it and they could produce the document–as they said they did–by any means they chose and it would still be perfectly valid [what makes it valid is that the state of Hawai’i stands behind it]). What would making a forgery have accomplished? At what point in the chain of custody (which is impeccable) was the forgery supposedly introduced? Why is the Hawai’i DoH playing along? (under two administrations, no less…). Face it, you’re just someone who hates President Obama based on nothing but the propaganda you’ve been fed who has neither the intelligence nor the integrity to check out both sides critically. Why do you waste people’s time like that?
GeneH,
I am not a lawyer, but I am bright enough to know that the long form COLB that was proffered on April 27, 2011 is an absolute forgery. And posting it on the whitehouse.gov website proved nothing but whomever forged it also left telltale signs that were intended to out the usurper. It is most unfortunate that things have degraded so terribly in this country, that no one in the government or in the media is willing to ask for some forensic examination of this document. Never mind the fact that no one has come forward to defend the authenticity of this blatant forgery, legions of experts have ripped it to shreds.
In due course, we shall see who is full of crap.
I am guessing you will be found in that camp.
Nal said:
“The determination of citizenship is critical in Minor, not what constitutes ‘natural born citizen.’ ”
OK, we reach common ground that MInor is a citizenship precedent. Thank you. Fair play.
I also agree that determining “citizenship” was critical. She wasn’t running for President, so, in that sense, her eligibility to be POTUS was not a direct issue.
But that does not mean that when they did invoke it, it is only dicta.
If the Court could have determined she was a citizen – without regard to the 14th Amendment – and without defining who was nbc, perhaps they would have avoided that as well… but by placing Minor in that class of persons referred to by A2 S1, which they cited directly, the Court identified the Constitutional provision which made her a federal citizen prior to the 14th Amendment.
The Court looked into the Constitution and construed A2 S1, defined the class who fit into that, and placed her in that class. The Court also noted that the 14th Amendment might have created more citizens, but that it did not give any of them new privileges. Therefore, if WKA was not POTUS eligible prior to the 14th Amendment, it did not make him eligible after it.
In Ogilvie, Et Al., Minors v. US, 519 US 79 (1996), the Supreme Court stated:
“Although we gave other reasons for our holding in Schleier as well, we explicitly labeled this reason an “independent” ground in support of our decision, id., at 334. We cannot accept petitioners’ claim that it was simply a dictum.”
The Minor Court’s construction of A2 S1 and subsequent identification of the natural-born citizen class (those born in the country to parents who are citizens) was an independent ground for their determination that she was a citizen with no regard to the 14th Amendment.
If the Court in WKA felt that he was also in that class, they too would have avoided the 14th Amendment. But they didn’t.
Leo
Leo,
That those born of citizen parents within the jurisdiction of the United States are citizens of the United States.
Justia sloughed off parts of 25 cases which cite MInor, but that’s not gonna work in the long run.
The Court in Minor construed A2 S1 as authority for avoiding the 14th Amendment. Minor’s construction of A2 S1 was an independent ground for avoiding the 14th Amendment.
The Court in Minor justified their avoidance of the 14th Amendment by construing A2 S1. Therefore, they quoted from it and defined the term, “natural-born citizen”. This was an independent ground in their reasoning for finding Minor to be a citizen with no regard for the 14th Amendment which the Court stated did NOT apply to her. But it did apply to WKA, and it did not create any new privileges for him or anyone else.
In Ogilvie, Et Al., Minors v. US, 519 US 79 (1996), the Supreme Court stated:
“Although we gave other reasons for our holding in Schleier as well, we explicitly labeled this reason an “independent” ground in support of our decision, id., at 334. We cannot accept petitioners’ claim that it was simply a dictum.”
Leo:
Therefore, it doesn’t matter whether they’re called “natural born citizens” or not, when determining their citizenship. The determination of citizenship is critical in Minor, not what constitutes “natural born citizen.”
Nal,
Please read the following and explain what precedent the Court in Lockwood was making reference to when they cited Minor…
““In Minor v. Happersett, 21 Wall. 162, this court held that the word ‘citizen’ is often used to convey the idea of membership in a nation, and, in that sense, 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;” …
Leo
Gen H,
Peace be with you.
Leo
Leo,
What part of holdings are the arguments materially relevant to the issue at bar don’t you understand? Aside from all of it. Judges can say all manner of things in a holding that aren’t relevant to the case at bar. I know relevance is hard to deal with for someone like you, but the bottom line is Obama is a natural born citizen with a valid birth certificate in the State of Hawaii. On April 27, 2011, the White House released a copy of his long form birth certificate. It is in the proper form, stamped and signed by Alvin T. Onaka (Hawaii state registrar). It is admissible as evidence of citizenship in any court in the land. His mother was a citizen so he’s a citizen jus sanguinus and the highest quality of state documentation as evidence shows he is a citizen jus soli. It don’t get more natural born.
So either his birth certificate is a forgery, none of the birth certificates issued by the State of Hawaii are valid or you’re simply full of crap.
I’m thinking the later, Leo.
I didn’t make a comment to engage you in a discussion. I made a comment to compliment gorefan on a job well done. Believe it or not, not every comment is about you and your “scholarly” endeavor. However, you are quite well known to me. “If you cannot acknowledge that Minor is historically famous for being a citizenship holding, then I see no point in discussing the issue any further with you.” Great! Because I’m not interested in arguing with someone who can’t tell dicta from decision or recognize valid state documentation that’s admissible evidence when it is inconvenient to their political agenda.
I’m no fan of Obama, but my criticism is restrained to legitimate matters of his abuse of office and failure to follow the rule of law, not some dog-whistle nonsense to play to simple racists based upon facile analysis of dicta.
But you are right about one thing. You really don’t want to engage me in conversation. I don’t suffer fools gladly. So next time I decide to compliment someone else, instead of speaking to me, you talk to someone who takes you seriously instead.
De-orbitered.
gorefan:
I agree.
Slartibartfast,
You have stated an argument, but it’s not my argument. And you have slighted me, but I will disregard the dig. Peace be with you.
The Court in Minor separated those born of citizen parents in the US into one class, and those not born of citizen “parents” into another. They put Minor into the first class and said that this class were natural-born citizens.
The Court further stated that there was never any doubt as to their “citizenship”. As to the second class, the Court stated they suffered doubts as to their “citizenship”. Minor’s class were undoubtedly citizens because they were natural-born citizens, the other class was not in the same class as the nbc class. The Court indicated that the second class might be “citizens”.
But if that class were natural-born citizens, the Court would have put them in the nbc class. But the Court didn’t.
The citizenship of some factions of the second class was later determined in US v Wong Kim Ark. But that case was decided under the citizenship clause of the 14th Amendment. Whereas, the Court in Minor was not required to construe the 14th Amendment, and instead construed A2 S1, the Court in WKA was required to construe the 14th Amendment. This was necessary because WKA was not in the natural born citizen class.
If WKA had been deemed to be a natural-born citizen, as Minor was, the Court in WKA would not have reached for the 14th Amendment and would have avoided it as the Minor Court avoided it. But they couldn’t avoid it.
Moreover, the Minor Court also held that the 14th Amendment granted no new privileges to anyone. So, if WKA was not POTUS eligible before the 14th Amendment, the 14th Amendment could not have conferred such eligibility upon him.
Furthermore, in Wong Kim Ark, Justice Gray quoted Binney’s paper on at 169 US 649, 665:
“‘The right of citizenship never descends in the legal sense, either by the common law, or under the common naturalization acts. It is incident to birth in the country, or it is given personally by statute. The child of an alien, if born in the country, is as much a citizen as the natural-born child of a citizen, and by operation of the same principle.'”
Two children are discussed and compared.
The principle discussed is “born in the country”.
Child 1 is the child of an alien
Child 2 is the child of a citizen
The passage indicates that the child of the alien, by operation of the principle (born in the country), is “as much a citizen as the natural-born child of a citizen”.
The child of the citizen is natural-born, and the child of the alien is not… but both are equal citizens.
And this passage, in my opinion, was used by Gray to quiet the dissent’s fears that Wong Kim Ark could become President. The passage acknowledges that the child of an alien is not natural-born. Gray not only cites this on pg. 665, he cites the EXACT same passage in the final holding of the case on pg. 693:
“The foregoing considerations and authorities irresistibly lead us to these conclusions…Every citizen or subject of another country…if he hath issue here…his child, as said by Mr. Binney in his essay before quoted, ‘If born in the country, is as much a citizen as the natural-born child of a citizen, and by operation of the same principle.’ ”
The dissent’s fears that Wong Kim Ark would be eligible to be President are mis-placed in light of this passage. And the dissent is certainly not the law.
Gen H said:
“He’s a citizen.”
This we agree upon. He’s a citizen, but I do not believe he is natural born.
“Actually, those who refuse to acknowledge Minor as a citizenship precedent are properly trained to read and interpret case law. ”
With all due respect, in the pursuit of legal truth, I submit without snark or ridicule, the following:
What part of “this court held” do you not understand?
Holding = precedent. This is not disputed.
Acknowledge that you understand those words have such meaning and I will be happy to engage the rest of your comment. If you cannot acknowledge that Minor is historically famous for being a citizenship holding, then I see no point in discussing the issue any further with you.
You should read this too:
http://naturalborncitizen.wordpress.com/2011/10/09/multiple-instances-of-historical-scholarship-conclusively-establish-the-supreme-courts-holding-in-minor-v-happersett-as-standing-precedent-on-citizenship-obama-not-eligible/
As to Gorefan’s comments, if he should choose to answer the following, I will be happy to address his comments, but I asked the following here first above. And I shall put it to anyone who cares to engage peacefully and with mutual respect:
Please read the following and explain what precedent the Court in Lockwood was making reference to when they cited Minor…
““In Minor v. Happersett, 21 Wall. 162, this court held that the word ‘citizen’ is often used to convey the idea of membership in a nation, and, in that sense, 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;” …
Leo Donofrio
Leo,
Now, I’m not a lawyer–maybe one of the many real lawyers here can correct me if I’m wrong–but it seems to me that your argument comes down to some simple logic. If we let:
A = a child born on the soil of two citizen parents
and
B = a natural born citizen
then what the plain language of the two cases says to me is that the court in Minor said, “if (A) then (B), and we’re not going to say anything about (not A)” and the court in Lockwood said, “The court in Minor said, ‘if (A) then (B)'” (presumably because they had established A and wanted to establish B…).
On the other hand, you seem to be saying “If (not A) then (not B)”. Well, as I said, I’m not a lawyer, but I am a mathematician and the error you seem to be making is a pretty basic one–not something I would expect someone with legal training to misunderstand. Could this be why you are content to try to persuade the gullible on the internet rather than put your theories to the test in court?
Bdaman,
What’s the matter, gorefan got your tongue? 😛
Justice Fuller, who wrote the Lockwood opinion, also wrote the dissent for the Wong Kim Ark opinion. In that dissent, he wrote,
“And it is this rule [English Common Law], pure and simple, which it is asserted [Justice Gray’s opinion] determined citizenship of the United States during the entire period prior to the passage of the act of April 9, 1866, and the ratification of the Fourteenth Amendment, and governed the meaning of the words “citizen of the United States” and “natural-born citizen” used in the Constitution as originally framed and adopted.”
And later he writes,
“I submit that it is unreasonable to conclude that “natural-born citizen” applied to everybody born within the geographical tract known as the United States, irrespective of circumstances, and that the children of foreigners, happening to be born to them while passing through the country, whether of royal parentage or not, or whether of the Mongolian, Malay or other race, were eligible to the Presidency, while children of our citizens, born abroad, were not.”
He writes about the meaning of the term “natural born citizen’ and the qualifications for being President but never mentions the Minor decision as having settled that meaning. He never cites it as precedent for the meaning of the term “natural born”. In fact, when he finally does mention Minor, he writes,
“I do not insist that, although what was said was deemed essential to the argument and a necessary part of it, the point was definitively disposed of in the Slaughterhouse Cases, particularly as Chief Justice Waite in Minor v. Happersett, 21 Wall. 162, 167, remarked that there were doubts which, for the purposes of the case then in hand, it was not necessary to solve.”
He never mentions Minor as defining “natural born citizen” but does mention that Minor decision did not solve the doubts about children born to alien parents.
The one sentence in the Minor opinionn, “These were natives, or natural-born citizens, as distinguished from aliens or foreigners.” was not essential to the decision. And as the Court of Appeals, Seventh Circuit said “can be sloughed off without damaging the analytical structure of the opinion”.
And as the Indiana Court of Appeals wrote in Ankeny v. the Governor of Indiana,
“the Court left open the issue of whether a person who is born within the United States of alien parents is considered a natural born citizen.”