-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.
@portney”Either you’re born in the US or you are not. If within, the 14th considers you a born citizen (or some would hazard natural born), if not, your birth is subject to the Congress and naturalization statute. The NAs of 1802 and 1855 cover those born without to citizen parents. The Acts naturalized the children of citizen parent born abroad (outside the United States).”
That is the current state of law but the history has been a bit more complicated. I think Rogers is an over technical reading of the 14th Amendment. No one in such Congress would have excluded children naturized at birth outside of the United States from the Amendment. It was sloppy drafting. But it is true that no one in such Congress even mentioned children of citizens born oversees.
There were some in England who thought the common law included a rule or descent as well as jus soli and hence English statutes going back to 1350 that made such persons natural born subjects were simply declaratory. This view was rejected by most English authorities including Blackstone. The 1802 naturlaization act for some reason by its terms seemed only to apply to children of persons who were citizens in 1802. By the time Kent wrote his Commentaries, he pointed out that there was effectively no statute for such persons and hence such children were aliens. Kent pointed out that there was some old dicta in English case law suggesting a rule of descent but Kent called them “dormant and doubtful.” However, it was almost 30 years until Congress addressed the issue after Horace Binney wrote his famous paper saying Kent was wrong and there was no rule of descent even in dicta. Congress amended the naturalization statute specifically citing Binney’s paper:
“By the common law, the better opinion always was, although there was a few dicta to the contrary, that children born out of the allegiance of the crown, and under the allegiance of another dominion, were aliens to the former and were subjects to the latter, or not, according to the municipal regulations of the country in which the birth might have happened to take place….I have had sent to me a pamphlet written by one of the most eminent lawywers in the United States, whose fame is known from the northern extreme to the southern boundries of our country, I refer to Horace Binney…He has published an elaborate pamphlet intending to draw attention to the subject to which I have now invited the attention of this house.” Rep. Cutting, Cong. Globe, 33rd. Cong., 1st Sess. pg. 170 (1854)
Eight years later, Ludlam v. Ludlam in the New York court of appeals disagreed with Binney and said England did have citizenship by descent. 35 years later, Wong Kim Ark said Binney was right and Ludlam was wrong however such part of Wong Kim Ark is clearly dicta. There has been a whole body a case law since WKA about whether the statutes making certain children of citizens born oversees violated equal protection when they didn’t make other foreign born children of citizens citizens as well. These cases presume that there is no right of citizenship outside of statute and often cite the dicta in Wong Kim Ark. Last year in one of these equal protection cases, petitioner tried to argue the traiditon of jus sanguinis in Anglo-American law going back to 1350 and his suggestion was dismissed out of hand.
However, we really don’t know if any founders thought the common law had a rule of descent and the Court has never really explored the issue.
ballantine, per the Rogers v. Bellei court point of view of Gray’s decision, “Thus, at long last, there emerged an express constitutional definition of citizenship. But it was one restricted to the combination of three factors, each and all significant: birth in the United States, naturalization in the United States, and subjection to the jurisdiction of the United States. The definition obviously did not apply to any acquisition of citizenship by being born abroad of an American parent. That type, and any other not covered by the Fourteenth Amendment, was necessarily left to proper congressional action.”
Either you’re born in the US or you are not. If within, the 14th considers you a born citizen (or some would hazard natural born), if not, your birth is subject to the Congress and naturalization statute. The NAs of 1802 and 1855 cover those born without to citizen parents. The Acts naturalized the children of citizen parent born abroad (outside the United States).
Or at least that’s what I can make of it.
“7 FAM 1131.6-3 Not Citizens by “Naturalization”
(CT:CON-349; 12-13-2010)
Section 201(g) NA and section 301(g) INA (8 U.S.C. 1401(g)) (formerly section 301(a)(7) INA) both specify that naturalization is “the conferring of nationality of a state upon a person after birth.” Clearly, then, Americans who acquired their citizenship by birth abroad to U.S. citizens are not considered naturalized citizens under either act.”
I agree this a confused area. However, Congress only has the power of naturalization. It has no power to pass a different type of statute. It is a matter of semantics other than with respect to Presidential eligibility which has never been before the Court. Justice Scalia on the issue:
“The Constitution “contemplates two sources of citizenship, and two only: birth and naturalization.” United States v. Wong Kim Ark, 169 U.S. 649, 702 (1898). Under the Fourteenth Amendment, “[e]very person born in the United States, and subject to the jurisdiction thereof, becomes at once a citizen of the United States, and needs no naturalization.” Ibid. Petitioner, having been born outside the territory of the United States, is an alien as far as the Constitution is concerned, and “can only become a citizen by being naturalized, either by treaty, as in the case of the annexation of foreign territory; or by authority of Congress.” Id., at 702—703; see also Rogers v. Bellei, 401 U.S. 815, 827 (1971). Here it is the “authority of Congress” that is appealed to–its power under Art. I, §8, cl. 4, to “establish an uniform Rule of Naturalization.” If there is no congressional enactment granting petitioner citizenship, she remains an alien.”
@portneyballantine, best I can figure that regardless of the WKA decision that someone born of two citizen parents in the territories was a naturalized citizen. Am I missing something?
VP Curtis is certainly an exception to the “birfer” rule of born in the jurisdiction etc. Personally, I lean with the Fuller WKA dissent and think the NbC consideration should ultimately rest with citizenship of the parents. I can see, though, how this might have been thought dangerous in the early 19th century. He was a naturalized citizen and defies the “birfer” rule. Hence the change from 1790 to 1795 with regard to consideration and semantic use of “natural born”.
If subject to the jurisdiction included the territories then why are eligibility questions posed regarding PR, Guam, etc?
I think the dude was naturalized.”
Does something in that book say people born in the territories were naturalized and not natural born? Under English law that was clearly not the case and I am not aware of anyone saying that persons born in the western territories while the were part of United States were aliens that needed naturalization. Such territories were clearly “in the United States.” It is absolutely clear the framers of the 14th Amendment thought people born in our territories were citizens ar birth. As I just said, the Insular cases excluded unincorporated territories like PR, Guam, Phillipines etc from operation of the 14th Amendment. The logic of such cases is highly questionable but didn’t apply to our western territories. People born in our territories when they were owned by France or Mexico is a different story and generally were deemed to become a citizen by treaty and it was not clear what type of citizen they were. John Q. Adams thought persons born in the Louisiana Territory prior our purchase were natural born. Others in Congress thought them naturalized. The notion of citizenship by treaty isn’t in the Constitution.
“Ballantine, have you had a chance to read “the exchange” as cited in WKA?”
I think the holding of “The Exchange” related solely to a public ship of war from a friendly nation not being under our jurisdiction as a matter of pulbic law. So, much of the quoted provisions are probably dicta. However, some might be part of the Marshall’s rationale as Marshall’s opinion states the basic maxims of public law about national sovereignty and the rule that aliens are generally subject to the jurisdiction of the nation. But he explains why foreign sovereigns, ambassadors, invading enemies and public ships of war allowed to use one’s ports are except from this general rule of jurisdiction. This discussion might be part of Gray rationale as his argument was that the history of the times and the language of the Amendment made clear it was declaratory. Here, he was showing what persons were not subject to our jurisdicition under previous law at least in the view of Marshall.
ballantine, best I can figure that regardless of the WKA decision that someone born of two citizen parents in the territories was a naturalized citizen. Am I missing something?
VP Curtis is certainly an exception to the “birfer” rule of born in the jurisdiction etc. Personally, I lean with the Fuller WKA dissent and think the NbC consideration should ultimately rest with citizenship of the parents. I can see, though, how this might have been thought dangerous in the early 19th century. He was a naturalized citizen and defies the “birfer” rule. Hence the change from 1790 to 1795 with regard to consideration and semantic use of “natural born”.
If subject to the jurisdiction included the territories then why are eligibility questions posed regarding PR, Guam, etc?
I think the dude was naturalized.
http://books.google.com/books?id=90XbprybS-kC&printsec=frontcover&source=gbs_ge_summary_r&cad=0#v=onepage&q&f=false
“Ballantine said: “no, U.S. Territories are not considered “in the United States” as far as the Constitution is concerned.”
I disagree.”
I didn’t mean all US territories. Under the common law the 14th Amendment territories cleary should be included. Half the debates on the 14th Amendment were on whether indians in the territories became citizens. However, after Wong Kim Ark the Court excluded what they called unincorporated territories that we didn’t intend to make part of our nation and these included the Phillipines, Cuba and the Canal Zone. Hence persons born in these territories were not 14th Amendment citizens though they shold have been under the common law.
I got it wrong, sorry. It was not Balantine who said “no, U.S. Territories are not considered “in the United States” as far as the Constitution is concerned.” . it was dunstvangeet.
Ballantine said: “no, U.S. Territories are not considered “in the United States” as far as the Constitution is concerned.”
I disagree.
“Therefore every person born within the United States, its territories or districts, whether the parents are citizens or aliens, is a natural born citizen in the sense of the Constitution, and entitled to all the rights and privileges appertaining to that capacity.”—William Rawle, A VIEW OF THE CONSTITUTION OF THE UNITED STATES OF AMERICA. 2d ed. (1829)
And Rawle knew many of the writers of the Constitution personally.
Ballantine, have you had a chance to read “the exchange” as cited in WKA?
State Department v 1971 USSC
This is really confusing. I’m reading what the state department considers naturalized and it is hard to measure against what the court said in Rogers v. Bellei.
7 FAM 1131.6-3 Not Citizens by “Naturalization”
(CT:CON-349; 12-13-2010)
Section 201(g) NA and section 301(g) INA (8 U.S.C. 1401(g)) (formerly section 301(a)(7) INA) both specify that naturalization is “the conferring of nationality of a state upon a person after birth.” Clearly, then, Americans who acquired their citizenship by birth abroad to U.S. citizens are not considered naturalized citizens under either act.
http://www.state.gov/documents/organization/86757.pdf
As I was screwing around earlier, I discovered something the lawyers of the thread can make sense of- this portion of the Rogers v. Belle case that clearly indicates that those born abroad to American citizens are, in fact, naturalized due solely the WKA decision. This is mentioned to reinforce my confusion as to why it seemed reasonable to have the citizens of aliens eligible to the presidency where Americans born abroad to our citizens are not.
Rogers v. Bellei, 401 U.S. 815 (1971)
Apart from the passing reference to the “natural born Citizen” in the Constitution’s Art. II, § 1, cl. 5, we have, in the Civil Rights Act of April 9, 1866, 14 Stat. 27, the first statutory recognition and concomitant formal definition of the citizenship status of the native born:
“[A]ll persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States. . . .”
This, of course, found immediate expression in the Fourteenth Amendment, adopted in 1868, with expansion to “[a]ll persons born or naturalized in the United States. . . .” As has been noted above, the amendment’s “undeniable purpose” was “to make citizenship of Negroes permanent and secure,” and not subject to change by mere statute. Afroyim v. Rusk, 387 U.S. at 387 U. S. 263. See H. Flack, Adoption of the Fourteenth Amendment 88-94 (1908).
Mr. Justice Gray has observed that the first sentence of the Fourteenth Amendment was “declaratory of existing
Page 401 U. S. 830
rights, and affirmative of existing law,” so far as the qualifications of being born in the United States, being naturalized in the United States, and being subject to its jurisdiction are concerned. United States v. Wong Kim Ark, 169 U.S. at 169 U. S. 688. Then follows a most significant sentence:
“But it [the first sentence of the Fourteenth Amendment] has not touched the acquisition of citizenship by being born abroad of American parents; and has left that subject to be regulated, as it had always been, by Congress, in the exercise of the power conferred by the Constitution to establish an uniform rule of naturalization.”
Thus, at long last, there emerged an express constitutional definition of citizenship. But it was one restricted to the combination of three factors, each and all significant: birth in the United States, naturalization in the United States, and subjection to the jurisdiction of the United States. The definition obviously did not apply to any acquisition of citizenship by being born abroad of an American parent. That type, and any other not covered by the Fourteenth Amendment, was necessarily left to proper congressional action.
One more thing. My suggestion is that Congress pass a law stating that chldren of citizens born oversees are “natural born citizens” as I think a good argument can be made that Congress has the power to expand the class of persons who are natural born citizens if in fact the original intent was ever deemed to be narrower. Congress does not have the power to make the class smaller. I think the clause is silly as neither place of birth or parentage means very much about on’e actual allegiance to the United States. Madison agreed.
@portneyCommon law and natural law. I believe there is no doubt that the ECL was the premise of our own law. But in what sense? Civil and political? I think the latter is a hard sell what with our history of revolution, citizen sovereignty, renouncement of perpetual allegiance, the 1812 war regarding the right to expatriate,…
Both civil and political. England and United States both clearly thought jus soli of the rule of Public Law as well. Our state department and England’s foeign office were consitent in the jus sanguinis conferred citizenship for municipal purposes only and did no confer political allegiance. American writers in the early republic agreed. In the 14th Amendment Congress, by my count 9 members thought jus soli to be the universal rule. Anglo-centric view of the world. They didn’t cite Vattel on this isue. Perpetual allegiance was debated in this country and with England for 80 years before both nations abandoned in in 1688 and 1870 respectively.
@potneyWhat is the common sense of believing that 14th born citizens are eligible for the presidency whereas those born abroad to citizens parents are not. This defies the reasoned inclusion of the phrase by John Jay and our own State Department’s view of dual citizens. No discussion of eligibility is far from the matter of allegiance at birth and the inherent truths found in the naturalization oath. On one hand we give no quarter to those who are born subject to another sovereign and insist that they renounce such to become an American and then, without apparent consideration, find no issue with those that just happen to be born beholden to a foreign power as well as the United States. What incredible nonsense.
Common sense is different than history. The Constitution was written by Englishmen taught the law of Coke and Blackstone. In thier world, foreign born citizens were citizens for municipal purposes only and couldn’t hold offices anywhere in England. That was their world and no one seemed to question it. In the Convention the only fear expressed was with respect to the foreign born. Jay spoke of not admitting “foreigners” but “foreigners” in those days meant “foreign born.” One can see that from the Convention where the foreign born were referred to as “foreigners.” You could look all day and not find anyone called a native born person a “foreigner.” A court has never ruled that the foreign born are ineligible. However, the Court has said over and over and over that the foreign born can only be made a citizen by statute:
“Persons not born in the United States acquire citizenship by birth only as provided by Acts of Congress.” Miller v. Allbright (1998)
If the statute was repealed such persons would not be citizens. Such is the law whether it makes sense or not.
RE VP Charles Curtis (31st VPOTUS 1929-1933). I cannot find, so far, the federal law that governs the then territories or court decisions that ruled. Thanks very much for the info.
30APR1803 – Louisiana Purchase; The United States concluded a “deal” when it signed an agreement to purchase the entire Louisiana Territory From France. This brought forth the exploration of a new American territory. Kansas became part of U.S. Territory.
30MAY1854, President Pierce signs bill, Kansas Nebraska Act, creating two Territories, divided on the 40th parallel of latitude, opens territory to settlers. Kansas is organized as a territory, including the eastern half of present-day Colorado. Fort Leavenworth is the first territorial capital.
FEB1859, Orren Arms (Captain Jack) Curtis and Ellen Pappan married (both American citizens).
25JAN1860, Charles Curtis was born in Eugene (today known as North Topeka) Kansas to Orren Arms (Captain Jack) Curtis and Ellen Pappan Curtis.
29JAN1861. Kansas statehood.
http://www.vlib.us/amdocs/texts/kanneb.html
Interesting.
dunstvangeet, good points I’m sure, thank you. I wasn’t making an argument but rather my point of view. that though fellow citizens, like yourself, are convinced it is a non-issue it was worth stating my qualms.
This thread has been incredibly interesting due the depth of knowledge from both sides (even Squeeky at times). Though the original purpose of whether the juicy parts of MvH are dicta fell to the wayside. Perhaps it will be revisited.
Per your comment on the parents and birthplace of previous officeholders, I’d be very interested if you had a link or would reply with the particulars. My earlier statement was honest in that I was tracking all except two were born to citizens, born or naturalized, subject to the jurisdiction.
Thanks for your response.
Pourtney…
1. You cite that there are many instances of Vattel being cited by the founders. If you take a look, you’ll notice that almost all of those cites did not have anything to do with municipal law (which is the area where citizenship would be defined) but in International Law. Nobody is arguing that Vattel was not influential in International Law. He simply wasn’t quoted on citizenship law by anybody. Furthermore, if you take a look at the number of quotes from the founders, you’ll find out the two top quoted things were the Bible and Blackstone. Vattel ranks about #30 or so. It is undoubtably that Blackstone, who wrote about English Common Law, and citizenship directly, was much more influential for citizenship than what Vattel was.
2. We’ve actually had multiple Presidents who don’t fit the Birther’s definition, and the birther definition changes depending upon who you ask, or what the time of day is. I’ve heard birther definitions ranking from “Born on U.S. Soil to Citizen Parents”, and I can name 2 Presidents (Arthur and Obama) and 1 Vice President (Charles Curtis) who do not fit this definition. Another main definition I’ve heard is no dual citizenship at birth. I can name about 8 different Presidents alone who do not fit this definition. Charles Curtis was born outside of one of the States of the United States, and no, U.S. Territories are not considered “in the United States” as far as the Constitution is concerned, or there would not need to be seperate codes to have citizenship for Puerto Rico, Guam, and the Virgin Islands.
But that doesn’t mean that there aren’t more. And I can come up with dozens if I just look at the major party nominees. For instance, the first Republican to run for President was a U.S. Senator by the name of John Charles Fremont. He was born to an indentured servent and the lady of the house who fell in love and ran away together. There are tons of other people who were born to U.S. immigrants.
3. I’m not suggesting it. Most poeple actually believe that a “Natural Born Citizen” means anybody who is born a citizen. Even the Ankeny Decision acknowledged this fact by putting that their decision should not be construed as to say that people born abroad do not fit the definition of Natural Born Citizen. In fact, I’d say that if this ever hit the Supreme Court, it would be a 9-0 decision for the fact that Natural Born means the same as Citizen by birth. I do know for a fact that it would be a 9-0 decision to incorporate anybody born within one of the 50 states and DC as part of this definition, even if born to 2 foreigners.
But to turn it around on you, here are two people…
PERSON 1. Parents get their citizenship 1 day after they have child. They raise child within the United States, and teach them to love the adopted country.
PERSON 2: Parents take child away from United States 1 day after they have child and raise within foreign land. They give up their U.S. Citizenship, and gain foreign citizenship for themselves and the child. The child returns to the United States on their 21st birthday, and then on their 35th birthday runs for the Presidency.
According to the birthers, PERSON 1 has too much foreign influence, but PERSON 2 is completely okay. Do you really believe that this is what John Jay meant?
Squeeky,
Hardly ever? You’re too kind… 😉
I want thank the lawyers on this site for discussing in depth the matter of natural born citizenship. As a layman and fellow citizen, I find it fascinating the points of view those that are learned in the law have regarding the reasonableness of the question. It is with reluctance that I admit that both parties are suspect in their motivation to prove the relevant case law and it is hoped that someday a higher body weighs in.
My take is that it nears the level of quantum mechanics, that theory states one proposition but is never truly known until observed. So what is observed?
1. Common law and natural law. I believe there is no doubt that the ECL was the premise of our own law. But in what sense? Civil and political? I think the latter is a hard sell what with our history of revolution, citizen sovereignty, renouncement of perpetual allegiance, the 1812 war regarding the right to expatriate, and the numerous instances of natural law philosopher Vattel cited by the courts. The significant difference between subjects and citizens is clear and mentionable. How is common law that speaks of subject birthright (born subject to the sovereign crown due the king‘s land) in any way remotely related to those persons sovereign in themselves and passing on to their progeny that birthright so stated in our Declaration of Independence?
2. Elected Presidents who were born after 1787. Is it not odd that our history of VPs and Presidents is IAW “born within the jurisdiction to citizen parents” save for two? Some argue that those born statutory citizens are undoubtedly natural born. I think the evidence of continued controversy speaks otherwise.
3. What is the common sense of believing that 14th born citizens are eligible for the presidency whereas those born abroad to citizens parents are not. This defies the reasoned inclusion of the phrase by John Jay and our own State Department’s view of dual citizens. No discussion of eligibility is far from the matter of allegiance at birth and the inherent truths found in the naturalization oath. On one hand we give no quarter to those who are born subject to another sovereign and insist that they renounce such to become an American and then, without apparent consideration, find no issue with those that just happen to be born beholden to a foreign power as well as the United States. What incredible nonsense.
Thanks, again, for the benefit of your discussions. I think in some regards that this is not solely a matter of the law but of the philosophical foundation of our constitutional republic. I look forward to your continued debate.
Slarti:
Thank you!!! Does this part here describe the Vattle Birthers or what:
“a world in which conversation is hardly ever serving a purpose other than distortion and confusion.”
Squeeky Fromm
Girl Reporter