-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.
here…”and by operation of the same principle” WKA is a citizen the judge held. Right…what does this tell me about if WKA can be President? Still waiting for the clear link…
Hi Slarti!!!
OK, here is the video, which I am linking from youtube not The Birther Think Tank, so peope won’t call me a “Blog Ho.”
http://www.youtube.com/watch?v=v6QEnUxTD4M
Squeeky Fromm
Girl Reporter
“In Minor v. Happersett, 21 Wall. 162, this court held that the word ‘citizen’ is…”
Ballantine, you’re obviously learned in the dark arts, what exactly is the Fuller court doing with this citation of an earlier supreme court decision? If it is dicta, what weight does the citation have and if very little, why is used at all?”
You need to read case law more. The court cites previous dicta all the time. Dicta is still substantial authority and can be cited. Fuller cites the dicta from Slaughterhouse prominently in his WKA dissent for example.
Isn’t it fun to not have any mention of BCs or SSNs? Miner is on the books as case law and been cited numerous times. It’s worth it for lawyers and laymen, alike, to determine as to it’s actual import and value. Pushing certain matters (NbC) aside until others are resolved makes for an interesting debate.
First, is Miner dicta or is it precedent with regard to citizenship (regardless of which class)?
mrjr101,
You cherry picked the words because you ignored the phrase, “and by operation of the same principle” which immediately followed the part you quoted and which invalidates your argument. The judge, on the other hand, said all of the words…
Squeeky,
Wow, it’s getting to be quite the party here… I’ve seen the video of Ms. Sheen’s discussion with a birther–brilliant! You should link it here.
I didn’t cherry pick the words ‘natural born child of a citizen’ in that sentence, the judge did. It wasn’t me who made the comparison between a citizen of aliens and a natural born child of a citizen, the judge did. But anyway, I would love to know where in the holding the judge made the so “clear” conclusion that WKA is an NBC other than that sentence. I can’t find it. Please…
Squeeky, i suggest you read again both decisions…I don’t think you’re getting what the judge meant about doubts. He was referring to those of persons born to non-Americans (Minor was born to Americans). Other than that, I agree with you it is demonstratively true that Miner is not dicta due to the numerous times the citizenship holding has been cited in later cases, to include Wong Kim Ark.
Hi Leo,
Is that an indication that you are working on responses to all of the substantive arguments that have been made against you or an indication that you are leaving the field? I am especially curious of your response to my own argument–one, to the best of my knowledge, you’ve never addressed. The technical details in Justia-the-non-scandal-undeserving-of-the-suffix-“gate” are much more consistent with an honest coding error than a conspiracy coverup (in my opinion, which I believe is the expert one in this case…). Furthermore, you’ve avoided (by ignorance or design–neither of which lends credence to your argument) presenting evidence of conspiracy. Evidence which certainly would have been extant when you made your “discovery” and could most likely be obtained from the Wayback Machine even now if it existed. In light of this (and the powerful arguments by others against your legal position, why should anyone consider you credible on this issue? Can you get your job as the Paraclete back?
Remember, if you can’t spot the fish in your first 30 minutes at the table…
Kevin
Well, here is MY two cents worth. The language in Minor v. Happersett is NOT dicta. It isn’t precedental for defining natural born citizenship, because it clearly says that it is not resolving the doubts.
But it isn’t dicta either, because some of it is quoted later in Wong Kim Ark, like this part:
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. . .
The Wong Kim Ark judges took this language and said:
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. 21 Wall. 167.
Sooo, I figure the Supreme Court judges ought to know what is dicta and what isn’t. Plus, I am not a lawyer, but my BFF Fabia Sheen, Esq., is a lawyer and she says some very academic lawyers have a different view of what is dicta stuff than trial lawyers. She says if a judge says it in his decision, the odds are it isn’t dicta, and she will quote it and see what happens.
Squeeky Fromm
Girl Reporter
“In Minor v. Happersett, 21 Wall. 162, this court held that the word ‘citizen’ is…”
Ballantine, you’re obviously learned in the dark arts, what exactly is the Fuller court doing with this citation of an earlier supreme court decision? If it is dicta, what weight does the citation have and if very little, why is used at all?
Slartibartfast,
Peace be with you.
Leo
Well, Leo, it would seem that quite a lot of people wish to politely debate you on the facts of your assertions on a site where you can’t stifle dissent via moderation. They seem pretty erudite (more so than you, I’m sad to say…) and on point, too. Can your arguments withstand criticism on a level playing field? I don’t think so… Will you even try?
It is also worth noting that Justice Fuller, Gray and the litigants in Wong Kim Ark all talked about natural born citizenship and no one suggested that Minor defined who was a “natural born citizen” or was in any way precedent. In fact, both the majority and dissent point out that Minor failed to address the status of child of aliens.
“I think a point you’re missing regarding dicta is with Lockwood citing Minor with the term “held”. It seems a stretch that the Fuller court would care a lick to cite a case regarding a fundamental aspect of citizenship if it didn’t consider it a precedent.
NbC is immaterial to the question of whether it is dicta. And contrary to Ballantine’s opines, the matter of Miner’s citizenship was in fact pertinent as to whether the court had warrant to hear the merit of the case. Who cares what the opinion of a defendant, who waives a crucial point of order, unless it is actually rationalized by the court? Last I checked Minor’s citizenship was enclosed in the syllabus for the decision…perhaps it was important, no? Or is it the habit of the court to include dicta in the syllabus?”
You clearly don’t know what “holding” means. It means the answer to the question presented and it is simply a fact such question was not presented to the court. Hence, it can’t be the holding no matter what some other court said. The syllabus is not written by the court and has nothing to do with what is the holding or what the court satys. The supreme court cites prevous dicta of the court all the time. Wong Kim Ark is full of citations of previous dicta.
You don’t seem to understand how cases work and what dicta is. The court didn’t need to address whether Minor was a citizen before getting to the merits anymore than it had to determine if there was personal jurisdiction. Arguments not raised are waived. The question the court accepted to hear dealt with sufferage and its holding was that citizenship was irrelevant to sufferage. I would think even a child would understand that it did not have to determine if Minor was a citizen if citizenship was irrelevant to the holding.
As is typical of birthers, you present half the quote and try to read into it something it doesn’t say. Horace Binney is saying that children of aliens and children of citizens are “citizens” by operation of the same principle.
“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.”
If they are citizens by operation of the same principle, they are obviously the same typy of citizen. If you read Binney’s paper, that principle is the English common law rule of locality of birth. He says we adopted the English common law and that parentage is irrelevant. He defined “natural born subject” and “natural born citizens” as someone born “within the limits and under the jurisdiction” of the sovereign in accordance with Blackstone. Binney’s paper is just more evidence that we adopted the English common law. You have to learn that just because someone calls someone a “citizen” doesn’t mean they are saying they are not a “natural born citizen” as “natural born citizens” are also “citizens.”
Now try going to the part of the decision where the court actually defines “natural born citizen” instead of trying to cherry pick citiations our of context.
Nal,
I think a point you’re missing regarding dicta is with Lockwood citing Minor with the term “held”. It seems a stretch that the Fuller court would care a lick to cite a case regarding a fundamental aspect of citizenship if it didn’t consider it a precedent.
NbC is immaterial to the question of whether it is dicta. And contrary to Ballantine’s opines, the matter of Miner’s citizenship was in fact pertinent as to whether the court had warrant to hear the merit of the case. Who cares what the opinion of a defendant, who waives a crucial point of order, unless it is actually rationalized by the court? Last I checked Minor’s citizenship was enclosed in the syllabus for the decision…perhaps it was important, no? Or is it the habit of the court to include dicta in the syllabus?
mrjr101,
You, being naturalized, are not “as much a citizen” as a natural born citizen–you are treated the same by the law in every way save eligibility for the presidency. The phrase “as much a citizen” indicates equality and your citizenship will never be equal to a natural born citizen’s (in this one regard only). Weren’t you supposed to learn this stuff when you were naturalized?
“Similarly, the WKA court never called WKA a natural born citizen but made clear that a person of his status was.”
Made clear like this?
“a person born of alien in the U.S. “is as much a citizen as the natural-born child of a citizen.”
This is what defines who can hold the high office? ‘as much as citizen’
heck, i am naturalized, I should hold the office too, I am as much a citizen also.
“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.”
It seems someone hasn’t read Wong Kim Ark as you have the case backwards. The issue presented to the WKA court was citizenship under the 14th Amendment and, of course, the court answered the question that was presented to it on the 14th Amendment. However, the court said that the 14th Amendment was simply declaratory of pre-existing law under the original Constitution. Hence, the court spends the first 20 pages telling us WKA would be a citizen under the original Constitution since the English common law definition of “natural born subject” was incorporated into the natural born citizenship clause of the Constitution. Hence, WKA’s discussion of “natural born citizenship” was necessary to the determination of the meaning of the 14th Amendment and hence is not dicta, but part of the ratio decidendi. Do birthers minds just go blank when they read these 20 pages? The Minor court never called Minor a natural born citizen, but made clear that a person of her status was. Similarly, the WKA court never called WKA a natural born citizen but made clear that a person of his status was. One doesn’t need to call someone natural born in order to clearly define the term. And, of course, WKA followed Minor and hence would supersede anything Minor said about the status of children of aliens.
So we have two cases that say “natural born citizen” must be defined by the common law of the founders. One doesn’t clarify what this means, the other spends 20 pages explaining what the common law meant in England and the United States. One is orbiter dictum, the other binding precedent. One cites no authority at all, the other cites pretty much every legal giant in England and the United States on the subject. One court declined to address children of aliens, the other spent the entire opinion on children of aliens. One Court followed the other and hence supersedes any implication with respect to natural born status of the former court.
“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.”
This is just making stuff up and trying to re-write what Justice Waite said. Obviously, if someone is a “natural born citizen” they are a citizen as the previous paragragh tells us there are two types of citizens under the original Constitution, natural born and naturalized. But why can’t the court be saying there is doubt about whether children of aliens are natural born citizens? Such is a perfectly reasonable reading. When speaking of children of aliens, the court does not say they are talking about a type of citizenship other than natural born. To say so is simply a lie. Though it using the term “citizen,” not “natural born citizen,” when discussing children of aliens, the court repeatedly tells us that “natural born citizens” are also “citizens” and hence calling someone a “citizen” does not mean one is not talking about “natural born citizenship.” In fact, it is pretty clear that is what type of citizen Waite is talking about. This whole paragraph is talking about the “common law” where everyone knows there are only two types of persons, the natural born and the alien born. Waite even tells us this as he only distinguishes natives and natural born subjects from aliens, not aliens and some other type of citizen.
“These were natives, or natural-born citizens, as distinguished from aliens or foreigners.”
This is straight from Blackstone who states “[t]he first and most obvious division of the people is into aliens and natural-born subjects.”
Trying to claim the court is talking about another type of citizenship simply makes no sense in this context and is reading into the decision something the court does not say. What is clear is the court expressly declined to address the citizenship status of children of aliens at common law and does not tell us what doubts and what type of citizenship they are talking about. Hence is the nature of dicta. Claiming such case is precedent for the status of children of aliens when it expressly declines to address their status at all is absurd. Of course, Wong Kim Ark spends 20 pages addressing the status of children of aliens under the common law but such case is apparently too difficult for some to understand.