-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.
Philo-Publius,
Maybe you don’t recall, but the Founding Fathers fought a war so that they didn’t have to follow British law–why do you and Professor Skidmore want to cede US sovereignty by letting every other country in the world decide who can and can’t be president? Besides, we’ve already had French and Greek citizens as President and Vice-President (respectively) and, if I am not mistaken, President Obama never actually had British citizenship.. he was just legally entitled to it if he elected to obtain it–which he never did (and at or around the age of majority this option expired). Why is President Obama different from his dual-nationality predecessors? (Aside from having a better claim to eligibility?)
The 1894 Lockwood case cite of MvH:
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; but that the right of suffrage was not necessarily one of the privileges or immunities of citizenship before the adoption of the fourteenth amendment, and that amendment did not add to these privileges and immunities.
Sooo, this means it takes two citizen parents to be president??? Funny how the Wong Kim Ark Court did NOT think so four years later. Maybe the MvH case was scrubbed??? This is the usual Vattle Birther trick. Make a broad statement and leave out all the context and troubling little details.
Squeeky Fromm
Girl Reporter
“Professor R. D. Skidmore of Pierce College in California agrees with Leo.
http://www2.hernandotoday.com/news/hernando-news/2011/nov/05/a-birther-recants-ar-301384/
Attorney Mario Apuzzo agrees with Leo.
http://puzo1.blogspot.com/2011/10/how-obamas-enablers-mislead-public-on.html”
Uh, Skidmore is not a lawyer and Apuzzo has embarrassed himself every time he has debated the issue in a public forum. And what are Apuzzo’s qualifications as a constitutional scholar? Why not try citing real scholars like Tribe or Olson who say Donofrio is wrong. Try citing real judges like the judges in the Ankeny court or actual legal treatises or dictionaries which all say Donofrio is wrong.
It’s hard to believe that the birther controversy has re-emerged. I have read the entire opinion in Minor v. Happersett. Nal is absolutely correct. The reference to natural-born citizens in the opinion is dicta in its purest form. That is to say, the comment had no bearing on the determination of the issue before the court. I have also read Ms. Cotter’s piece in its entirety. Unfortunately, earnestness is not a cure for ignorance. She ought to have consulted a lawyer before she spent what appears to have been a considerable amount of time uselessly.
BTW, Nal, great comment and explanation.
Professor R. D. Skidmore of Pierce College in California agrees with Leo.
http://www2.hernandotoday.com/news/hernando-news/2011/nov/05/a-birther-recants-ar-301384/
Attorney Mario Apuzzo agrees with Leo.
http://puzo1.blogspot.com/2011/10/how-obamas-enablers-mislead-public-on.html
bob,
The entire basis of our system of jurisprudence is based upon people NOT agreeing with each other. Every case in every law book is based upon dissonance.
Until the emergence of Lockwood from the shadows, people argued that Minor was not a citizenship precedent. Now since Lockwood went mainstream, there’s no doubt in the “mainstream legal community”, including the Supreme Court Justices who have cited it, that it is a citizenship precedent. Non-lawyers arguing on forums who have an agenda are hell bent on denying the truth of the case. But there’s no genuine debate that Lockwood cites Minor as precedent on citizenship.
The only question which is open for debate as to Minor concerns what is the precedent of citizenship from that case. We know the holding, but the precedent is not limited to the holding.
Leo
@ Natural Born Citizen:
Why does no one in the mainstream legal community agree with your take on what Minor held?
Ballantine:
A better translation:
“But, I don’t want to take off my big red rubber nose and floppy shoes first. Can’t you just respect me and my seltzer bottle the way I am???”
I think he should put a “Non ridet” clause into his stuff. Although it will probably not be enforceable for “impossibility.”
Tee Hee! Tee Hee!
Squeeky Fromm
Girl Reporter
Leo,
I didn’t think that my last comment was emotionally charged, but since you apparently did, here’s the gist of my comment:
Why didn’t you show evidence of your allegations against Justia? (i.e. a non-mangled link in citations that the defective regex was allegedly used on)
Also,
Since the “coding error” explanation much simpler than the “conspiracy to cover up Minor” explanation, is it not much more likely to be true? Especially if you are wrong (as it appears) regarding Minor and precedent…
Bless your heart.
“Ballantine,
Peace be with you.
Leo”
Translation: “I have no answers to your arguments.”
Squeeky,
Peace be with you.
Leo
Ballantine,
Peace be with you.
Leo
Natural Born Citizen:
There is no sense in me engaging you here, because I have just been giving you HECK at my website. Sooo, if disrespect bothers you, OH I would just be giving you tizzies. Plus, I am scairt of that “Stream” of yours. Because I am pretty sure it isn’t “rain.”
That being said, you are living in an alternate reality universe wherein all the history after the 1875 Minor v. Happersett case do NOT recognize it as precedent for determining natural born citizenship. Even Breckinridge Long snubbed the case in 1916 in his hit piece on Charles Evans Hughes, who was seeking the Presidency against Woodrow Wilson.
If ever a writer could have used Minor v. Happersett to prove his case, it was poor Brecky. Yet, no mention of the case. Anomalies like this are the responsibility of the person advancing the theory to explain. Should you need a list of anomalies to start you off, try this:
http://birtherthinktank.wordpress.com/2011/11/12/the-alternate-reality-universe-of-leo-donofrio-a-white-paper/
The “Et tu, Breckinridge???” Internet Article is the one after that.
Squeeky Fromm
Girl Reporter
“The main question was, “Is she a citizen?” But it’s more specific than that… “Is She a Citizen before the 14th Amendment?” The Court held that she was because she was natural-born.”
Nope. Citizenship was never raised before the court. It wasn’t argued or briefed. The judge brought it up on his own. It is dicta. However, even if the court held Minor to be a citizen, the issue of children of aliens was not before the court and hence anything said about children of aliens is obviously dicta. Minor can simply not be cited on the issue of children of aliens.
“Gray specifically cites to the very passage including the nbc language. He notes that the “decision” only pertains to citizenship, but his use of the entire passage to counter dicta form TSHC indicates strongly that the passage in full = precedent.”
Gibberish. The sole purpose of the citation was to show the Minor court was no committed to a view of on children of aliens under the 14th Amendment as the Minor court failed to address the citizenship status of them at all and, again, nothing in the Minor quote says children of aliens were some type of citizen other than “natural born.” Such is just making stuff up.
“The 14th Amendment could have no affect on the eligibility of anyone to be POTUS since that Amendment did not add any new privileges for anyone. If one requires the 14th Amendment to be a citizen, then that person was not a citizen bf adoption of the 14th Amendment and is therefore not POTUS eligible.”
Time to read Wong Kim ark again. The court said the 14th Amendment and the NBC clause are both defined by the English common law and hence mean the same thing. No subsequent court has ever said they mean something different.
The fact is that no one in history has cited Minor as precedent for definition “natural born citizen” because it is not. At most it stand for children of citizens being natural born and leaving the question open whether children of aliens are.
If anyone wants to engage me here, address your comment to me and have it refrain from any emotionally charged language and I will be happy to partake in a mutually respectful dialogue in pursuit of genuine truth.
I do not respond to insults, direct or implied. Address me with respect and your respect shall be returned.
If I answer you as follows, “Peace Be With You”, I mean it and I also intend for that to be the last correspondence I have with you. I have tuned you out until such time as you may redress your disrespect.
Leo
Portney:
You said: 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).
True. There were some doubts as to whether they were natural born citizens (NBC) or not. For example, there was a lot of uncertainty about the Chinese, because of some legal questions relating to them getting their heads cut off or something if they naturalized. (By the Chinese, not us Americans)
However, in 1898 Wong Kim Ark answered all those questions, and YES!!!, if you were born here and not the kid of a diplomat or alien invader, then you were a NBC!
Squeeky Fromm
Girl Reporter
“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…”
The court didn’t say they were different. You are trying to make an inference in that since it didn’t call children of aliens “natural born” the court was implying they were not “natural born” even though it says the children of aliens and citizensa are citizens by the same principle and hence obviously the same type of citizen.
I suggest you go to the beginning of the case where the court says “natural born citizen” must be defined by the English common law.
“The Constitution of the United States, as originally adopted, uses the words “citizen of the United States,” and “natural-born citizen of the United States……The Constitution nowhere defines the meaning of these words, either by way of inclusion or of exclusion, except insofar as this is done by the affirmative declaration that ‘all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.’ In this as in other respects, it must be interpreted in the light of the common law, the principles and history of which were familiarly known to the framers of the Constitution….The interpretation of the Constitution of the United States is necessarily influenced by the fact that its provisions are framed in the language of the English common law, and are to be read in the light of its history.” U.S. v. Wong Kim Ark,169 U.S. 649, 654-55 (1898).
What can that mean? Do understand that under the English common law parentage was irrelevant? If you don’t, the court goes on with about 5 pages telling us WKA would be a natural born subject before stating the rule that would make him one “prevailed under the constitution.”
“and therefore every child born in England of alien parents was a natural-born subject unless the child of an ambassador or other diplomatic agent of a foreign State or of an alien enemy in hostile occupation of the place where the child was born. The same rule was in force in all the English Colonies upon this continent down to the time of the Declaration of Independence, and in the United States afterwards, and continued to prevail under the Constitution as originally established.” U.S. v. Wong Kim Ark,169 U.S. 649, 658 (1898).
So “natural born” is defined by the English common law and the defintion of natural born subject prevailed under the Constitution. In case anyone was still didn’t get it, Gray goes on:
“The first section of the second article of the Constitution uses the language, ‘a natural-born citizen.’ It thus assumes that citizenship may be acquired by birth. Undoubtedly, this language of the Constitution was used in reference to that principle of public law, well understood in this country at the time of the adoption of the Constitution, which referred citizenship to the place of birth” U.S. v. Wong Kim Ark,169 U.S. 649, 662 (1898).
“Natural born” defined by “place of birth.” Pretty clear. Gray continues:
“All persons born in the allegiance of the King are natural-born subjects, and all persons born in the allegiance of the United States are natural-born citizens. Birth and allegiance go together. Such is the rule of the common law, and it is the common law of this country, as well as of England. . . . We find no warrant for the opinion that this great principle of the common law has ever been changed in the United States. It has always obtained here with the same vigor, and subject only to the same exceptions, since as before the Revolution.” U.S. v. Wong Kim Ark,169 U.S. 649, 662-63 (1898).
“Natural born subject” defined the same as “natural born citizen.” The rule the same here as in England. The rule the same as before the revolution. Hard to be clearer. Of course, some birthers still claim that “born in the allegiance” must mean something different in England and the US. Don’t worry, Gray quotes authority defining “allegiance by birth” in the United States using the words of Blackstone:
“allegiance by birth is that which arises from being born within the dominions and under the protection of a particular sovereign…” U.S. v. Wong Kim Ark,169 U.S. 649, 659 (1898).
Finally, in case one didn’t get the message that “citizen” and “subject” meant the same thing:
“The term “citizen,” as understood in our law, is precisely analogous to the term “subject” in the common law, and the change of phrase has entirely resulted from the change of government.”U.S. v. Wong Kim Ark,169 U.S. 649, 664 (1898).
“And if, at common law, all human beings born within the ligeance of the King, and under the King’s obedience, were natural-born subjects, and not aliens, I do not perceive why this doctrine does not apply to these United States, in all cases in which there is no express constitutional or statute declaration to the contrary. . . . Subject and citizen are, in a degree, convertible terms as applied to natives, and though the term citizen seems to be appropriate to republican freemen, yet we are, equally with the inhabitants of all other countries, subjects, for we are equally bound by allegiance and subjection to the government and law of the land.” U.S. v. Wong Kim Ark,169 U.S. 649, 665 (1898).
Ballantine, dicta is frequently cited, got it. How about the rest? “What weight does the citation have and if very little, why is it used at all?”
I get what you’re saying regarding her waived citizenship, it just does not follow that the court could determine one without finding the standing of the other. I hope you agree that it is not merely a case involving suffrage.
Nal said:
“In Minor, the citing of common law just before the “natural born citizen” remark also lends credibility to the argument that it is dicta.”
I do not understand this contention. That would make it more precedent than dicta. The Court is simply discussing various sources of information. Regardless, the Court was construing the Constitution generally and the citizenship clauses specifically. It ruled out any relevance of the 14th Amendment, and instead found the power to grant citizenship within the Document in two places…
“Additions might always be made to the citizenship of the United States in two ways: first, by birth, and second, by naturalization. This is apparent from the Constitution itself, for it provides that ‘no person except a natural-born citizen, or a citizen of the United States at the time of the adoption of the Constitution, shall be eligible to the office of President,’ and that Congress shall have power ‘to establish a uniform rule of naturalization.’ Thus new citizens may be born or they may be created by naturalization. ”
The Court then established Minor’s citizenship under A2 S1. The issue wasn’t who can be President, but it was who is a natural-born citizen, to which the Court stated:
“The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. ”
It then goes about ascertaining that.
It’s proclamations on this point are precedent under any analysis of precedent from every Supreme Court case I am familiar with which discusses precedent, particularly Ogilvie, but ESPECIALLY Wong Kim Ark (see below).
I have yet to see a single quote from another Supreme Court case more directly on point than Ogilvie as far as this situation. I am happy to address any such quote should one be cited. I would like for you though to discuss Ogilvie.
Nal said:
“In Lockwood, the Court expressly left out the “natural born citizen” phrase as part of what they considered the holding in Minor.”
I agree that the “holding” of Minor is specifically pertaining to citizenship, not nbc. The Court in Lockwood, which was deciding an issue about Bar admission, had no reason to cite the nbc part of Minor. But the Court in Wong Kim Ark did have reason to cite that specific provision as precedent. I believe that was done to alleviate the pressure of the dissent which was arguing that WKA would be POTUS eligible.
The nbc language was not part of the specific holding, but it was an independent ground by which the Court arrived at the citizenship holding. They could have arrived at the very same holding under the 14th Amendment, but they didn’t. The Court determined Minor was nbc because that class had no doubts attached to their citizenship.
The main question was, “Is she a citizen?” But it’s more specific than that… “Is She a Citizen before the 14th Amendment?” The Court held that she was because she was natural-born.
Nal said:
“The lack of depth of research into the definition of “natural born citizen” also lends credibility to the argument that it is dicta.”
This I will acknowledge is a relevant and rational argument. But there is no rule that a point of law must have a ton of analysis attached. Look at Justice Breyer’s analysis of precedent v dicta in Ogilvie. It’s not supported by any point of law at all, but it is a precedent of that case.
The bigger problem with your argument, however, is that in Wong Kim Ark, Justice Gray said the same thing about the Court’s statement concerning “subject to the jurisdiction thereof” in The Slaughter-House cases, that it was dicta, but in doing so, part of his proof that it was dicta included his quoting DIRECTLY the nbc passage from Minor:
“That neither Mr. Justice Miller, nor any of the justices who took part in the decision of the Slaughter House 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, is manifest from a unanimous judgment of the court, delivered but two years later, while all those judges but Chief Justice Chase were still on the bench, in which Chief Justice Waite said: ‘Allegiance and protection are…’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, ofparents who were its citizens, became themselves, upon their birth, citizens also. These were natives or natural-born citizens…'”
Gray specifically cites to the very passage including the nbc language. He notes that the “decision” only pertains to citizenship, but his use of the entire passage to counter dicta form TSHC indicates strongly that the passage in full = precedent.
More important right now than the classification of Minor’s nbc definition as precedent v dicta, is national recognition of the statement, that it is controversial, that it deserves respect, if not Stare Decisis affect, and that it should be resolved by the Supreme Court. This dialogue did not take place prior to the ’08 election, but it needs to take place now, and it is taking place now.
The 14th Amendment could have no affect on the eligibility of anyone to be POTUS since that Amendment did not add any new privileges for anyone. If one requires the 14th Amendment to be a citizen, then that person was not a citizen bf adoption of the 14th Amendment and is therefore not POTUS eligible.