-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.
Observer,
From Mr. Maskell’s new CRS report:
Squeeky,
Do you think the Vattle birthers will understand how badly they’ve been spanked or continue to revel in their stupidity and willful ignorance? I’m betting on the latter…
New CRS Report:
http://www.obamaconspiracy.org/2011/11/new-congressional-report-on-presidential-eligibility/
@ksdbYou’re still flailing away trying to salvage your common-law was adopted in all the states, no nearly all, no just a list of whatever you can come up with since they didn’t all adopt the common law. I showed how the SCOTUS stated that the common law was adopted in very limited ways and in differing ways in different states.
And I cited the Supreme Court saying the common law was in place in all ths states and cited the most influential treatise to point out most states actually said they adopted the English common law and that the common law in was still in place in the few states that did expressly adopt it. There is no dispute about this. Your citation does not say it was in place in limited ways. As Justice Iradell points out:
“and which I consider, so far as it is applicable to the peculiar circumstances of the country, and where no special act of legislation controls it, to be in force in each State as it existed in England (unaltered by any statute) at the time of the first settlement of the country. The statutes of England that are in force in America differ perhaps in all the States, and therefore it is probable the common law in each is in some respects different.”
Differs in some respect. Not all the English statutes were in place.
@ksdbI’ve also shown that interpreting the Constitution in “light of” common law does not mean that the Constitution is defined BY the common law.
Nonsense. You are just playing your word games. Saying undefined terms are interpreted and read in light of the common law means exactly that.
“The language of the Constitution and of many acts of Congress could not be understood without reference to the common law.”
In english that means you must go to the comon law to understood what the terms mean.
@ksdbIf the common law prevailed on citizenship, then why was the citizenship clause in the 14th amendment included?? Why would they go to the trouble to amend the Constitution for something that is supposedly part of the law in all the states??? Think, man, think!
Try studying history. Everyone in the citizenship debate of the 14th Amendment said they were simply restating pre-existing law priora to Dred Scott with the sole purpose of the 14th Amendment being to make clear Dred Scott was no longer the law. Pretty much everyone in such Congress said they were re-stating the common law rule. Such is why Justice Gray said the 14th Amendment was simply declaratory of pre-existing law the sole purpose of which was to remove the doubt created by Dred Scott.
@ksdbThe original principles had limited application and never said the common law should be used to literally define every term found in the Constitution.
Sorry, in real life the Court has looked to the common law over and over and over. No one has done this more than Justice Scalia who nearly always looks to the English common law. Doesn’t matter if they are citizenship cases or not, it has been the general principle of the Court.
@ksdb It’s a generalization that is specifically undermined because the Minor decision did NOT use English common law to define NBC.
Of course it did. There was no other common law of the founders. The dicta in Minor simply didn’t examine the common law with respect to children of aliens.
@ksdbSorry, but this is false. There was general rule that was applied. It’s called descent and I quoted it directly from the majority opinion.
Wrong again. The majority specificall6y said it was not talking about a general rule of citizenship. They created a rule of following the condition of the father with a right to election at majority for persons for during 3 months in 1776 and said such rule ended 9/15/1776. A right to election at majority was obviously not the rule after the war except for the limited right of election provided by treaty. The majority said nothing about what the rule was after 1776.
@ksdbThere’s no reason for Story to talk about this ordinance at all if simple birth within the soil is all that is necessary to become a citizen.
Wrong again. You don’t see that the rules about his citizenship differ depending upon who was in control of the soil he was born on. If born prior to 7/4/76, he was born on British soil and the status of his parents mattered as he only could become a citizen through their right of election. If born between 7/4/776 and 9/15/76 when the US Army controlled the city, it doesn’t matter if his parents elected to become US citizens or remained British subjects. Coke 101. Of born after 9/15/76 he was born on soil occupied by a foreign army and again the status of his parents matter. Again, Coke 101.
@ksdb“To constitute a citizen, the party must be born not only within the territory, but within the ligeance of the government. This is clear from the whole reasoning in Calvin’s Case, 7 Co. 6, a. 18, a. b.(k) Now in no just sense can the demandant be deemed born within the ligeance of the state of New York, if, at the time of his birth, his parents were in a territory then occupied by her enemies and adhering to them as subjects, de facto, in virtue of their original allegiance.”
Wrong. This whole section is about being born after 9/15/76 on territory under occupation by a foreign army. See “occupied by her enemies” in your quote and “if he was born after the British took possession of the City of New York in September, 1776.” Story earlier explain the rule for being born under foreign occupation and parentage did matter in such situation. Have to read more carefully.
@ksdb Gray ignored several parts of this decision that are inconvenient to his interpretation of common law
The citations to Vattel were not about people American citizens under the common law. The opinion is as clear as can be on such point.
@ksdbNo, I still can’t understand why you say repeat this phrase that was not used in the decision. You know full well that’s NOT was Gray wrote. Try being honest. A unanimous decision that says all children born of citizen parents are NBCs is one hell of a commitment. Gray was not going to overrule that definition. No way. So he didn’t.
Just try admitting you are wrong. There is no ambiguity as to what Gray said: “That neither Mr. Justice Miller nor any of the justices who took part in the decision of The Slaughterhouse 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 14th Amendment. You simply think denying what plain English says is legal argument. Gray didn’t overrule anything. Minor was dicta that expressly declined to address the status of children of aliens.
@ksdb Second, because the allegiance of the parents is consistent with natural law and the law of nations.
After the right to election through treaty expired, no early legal authority said a person born on US soil after the revolution was governed by the allegiance of his parents. What you think about natural law or the law of nations is irrelevant. The right to such election was not the general rule and no one had such right after 1795 and the 1794 treaty only applied to persons living in certain disputed areas. The treaty with China said nothing about native born Chinese. It related only to naturalization which by definition did not apply to the native born. In the debates in Congress in 1870 leading up to the treaty, there was a long debates about the status of Chinese and the anomaly of preventing Chinese immigrants from becoming citizens while making their children citizens under the Amendment was discusssed. The many members of 14th Amendment Congress a few years earlier clearly stated that children of the Chines would be citizens. This would include Senator Trumbull, Williams, Johnson and Conness off the top of my head. Time to do more research.
@ksdb Yes, and this completely undermines the idea that our country inherently adopted English common law. It was ALREADY part of the common law that children born abroad of English fathers were considered natural-born subjects. Why would this have to be written into a naturalization act if the common law was adopted??
The English followed the same rule as us. In fact, our naturalization debates make clear we were copying them. The common law controlled people born in England. The prevailing view in England was that persons born outside of England could only be made subjects by naturalization statutes. These statutes provided that persons born to English subjects outside of England were natural born subjects for all intents and purposes, but the English did not treat them as British subjects outside of England and didn’t claim their allegiance against their native nation if such native nation. There were essentially subjects for municipal purposes only and did not owe their political allegiance to England, at least unless they moved back to England. That was the state of public law. For example, during the Civil War, the English tried to protect British born aliens in the United States from the draft. They didn’t try to protect their children born on US soil recognizing that they were US citizens and owed their allegiance to the United States.
@ my funny ballantine: “king of sad you’re really not learning anything.”
“king of sad”??? I’ve learned that you’ve posted several dumbass comments and that it’s pretty easy to debunk nearly everything you come up with.
You’re still flailing away trying to salvage your common-law was adopted in all the states, no nearly all, no just a list of whatever you can come up with since they didn’t all adopt the common law. I showed how the SCOTUS stated that the common law was adopted in very limited ways and in differing ways in different states. I’ve also shown that interpreting the Constitution in “light of” common law does not mean that the Constitution is defined BY the common law.
You said: “With respect to citizenship, only Virginia changed the common law by statute which after 1783 expressly said anyone born in Virginia was a citizen. Sorry those are the facts.”
What facts?? You’re making a claim lacking factual support. If the common law prevailed on citizenship, then why was the citizenship clause in the 14th amendment included?? Why would they go to the trouble to amend the Constitution for something that is supposedly part of the law in all the states??? Think, man, think!
You said: “I was pointing out that the court has said over and over that the Constitution must be interpreted in light of the common law, including in Minor and WKA, as well as a multitude of other cases. Didn’t mean we adopted the common law as federal law, it meant we were to look to the English common law to define terms like Smight v. Alabama and WKA expressly stated.”
Did you not read my reply??? I went to the original case where this principle was introduced. It had nothing to do with citizenship. You objected to me quoting Marshall who quoted Vattel specifically about citizenship because YOU said, the decision itself wasn’t about citizenship. Now you want to apply something that is even further removed … which is you being a hypocrite with a double standard. The original principles had limited application and never said the common law should be used to literally define every term found in the Constitution. It doesn’t matter if Justice Taft quoted this again. It’s a generalization that is specifically undermined because the Minor decision did NOT use English common law to define NBC. They used the law of nations definition verbatim, minus credit for where it came from.
You said: “I guess that really means ignore the English common law.”
Sorry, this is a ridiculous overreaction. I never said that English common law needs to be ignore. Instead I’ve pointed out that Minor’s definition of NBC is not from the English common law. I challenged Squeezy and I’ll challenge you. Find citations of English common law in the Minor decision and share them here. Let’s see them.
You said: “The majority didn’t discuss the topic of citizenship generally. Made a special rule that it made clear did not generally apply.”
Sorry, but this is false. There was general rule that was applied. It’s called descent and I quoted it directly from the majority opinion.
You said: “He said was relevant “if born a British subject.” Not otherwise. Whether one born a British subject swiches nationality in war is a matter of public law.”
Do you think before you post?? You’re arguing against yourself again. You’ve been claiming that the common law was the guide, now you’re saying it’s “public law.” Thanks for conceding another point.
You said: “It was prize case and you are citing a dissenting opinion, not the majority, that quotes Vattel solely on the issue of domicile.”
You’re not helping yourself. This still shows the court relying on Law of Nations, plus, the citation from the majority that speaks of domicile is related specifically to citizenship.
“Such a person, says this author, becomes a member of the new society, at least as a permanent inhabitant, and is a kind of citizen of an inferior order from the native citizens,” Marshall helps define what is meant by “native citizens” which is all persons born in the country to citizen parents.
You said: “His parent were either British subjects or American citizens at his birth depending upon whether they evidenced an intention of becoming permanently members of America.”
You’re making my point for me. The intention of permanent membership creates the allegiance to the political unit. If they didn’t express that intention, then they remained British subjects. The only thing that changed in September 1776 in this case was the parents joined the British troops in New York, and remained under the protection of the British arms during the war. Regardless, Story cites Vattel in helping to make his decision:
“Vattel considers the general doctrine to be, that children generally acquire the national character of their parents (Vattel, B. 1, ch. 19. sec. 212, 219); and it is certain, both by the common law and the statute law of England, that the demandant would be deemed a British subject.”
It makes no sense for Story to quote Vattel here unless he’s agreeing that children acquire the national character of the parents (which is regardless of the place of birth). The only way this doctrine can be established and make the child in Inglis an American citizen is a) if the parents elected to become U.S. citizens or b) if they became members of the state by expressing the intention of permanent residence.
Vattel says in section 219: “a man’s country is the place where, at the time of his birth, his parents had their settlement” … this jibes with Story’s mention of the New York and Massachusetts statutes on “abiding” as a permanent resident in become a member of the state.
Note too: We have a statute in this decision that does NOT incorporate English common law. That statute rejects those who were only temporarily in the state as being members of the state. Here’s the quote:
“such persons who were resident here without any intention of permanent residence, were not to be regarded as members of the state”
You wrote: “Again, in English, Story said it made no diffferenece whether his parent had manisfested ” an intention of becoming permanently members..”
Wrong. He said it made no difference whether they elected to become citizens, by manifesting an intention to become permanent residents. There’s no reason for Story to talk about this ordinance at all if simple birth within the soil is all that is necessary to become a citizen. He clearly says it is NOT sufficient:
“To constitute a citizen, the party must be born not only within the territory, but within the ligeance of the government. This is clear from the whole reasoning in Calvin’s Case, 7 Co. 6, a. 18, a. b.(k) Now in no just sense can the demandant be deemed born within the ligeance of the state of New York, if, at the time of his birth, his parents were in a territory then occupied by her enemies and adhering to them as subjects, de facto, in virtue of their original allegiance.”
These are combined critieria … within the territory AND within the ligeance of the government. Story has already said the family “joined the British troops.” This put them in the ligeance of the British government. Had they been captives of the British troops, they would have been enemies of the British and thus the child could NOT be born a British subject after September 1776. Story, however, says the child if born after that time is a British subject.
Gray ignored several parts of this decision that are inconvenient to his interpretation of common law. He ignores the majority opinion and he ignores that Story cited Vattel. It doesn’t matter, however, because Gray still cited and affirmed Minor’s definition of NBC.
You wrote: “Still can’t understand what it means to say no one on the court was committed.”
No, I still can’t understand why you say repeat this phrase that was not used in the decision. You know full well that’s NOT was Gray wrote. Try being honest. A unanimous decision that says all children born of citizen parents are NBCs is one hell of a commitment. Gray was not going to overrule that definition. No way. So he didn’t.
You wrote: “Any thoughts as to why the allegiance of the parents is an important consideration in one context and not in the other regarding NbC?”
Yes, because the Constitution was established for “ourselves and our posterity” meaning that citizenship is a birthright of parentage, not location. The Constitution doesn’t say for “ourselves and the occasional foreigner who happens to visit and knock up a local girl.” Second, because the allegiance of the parents is consistent with natural law and the law of nations.
You wrote: “We made citizens of children born oversees by statute fully realizing they may owe their political allegiance to the nation of their birth, not us.”
Yes, and this completely undermines the idea that our country inherently adopted English common law. It was ALREADY part of the common law that children born abroad of English fathers were considered natural-born subjects. Why would this have to be written into a naturalization act if the common law was adopted??
You wrote: “At the same time, in the early republic we never acknowledged that a person born on our soil owed a foreign allegiance due to his or her parents.”
Nonsense. That’s exactly what the treaties of 1783 and 1794 did according to the SCOTUS. It’s what the treaty with China was presumed to have done up until Wong Kim Ark created the ancient and fundamental rule of “citizenship by birth” for those who had permanent residence and domicil.
@portneyMy point and query was that PRESENT law, to include the 1971 USSC, deems those born outside the United States and the 14th as clearly subject to congress’ naturalization laws.
Yes, under current law, McCain would not be a citizen except by statute. As I have stated, I don’t think that means he cannot be natural born.
@ksdbInteresting, if McCain considered WKA inapplicable he could fall back on notions that NbC was open to foreign born citizens of American parents in the vein of the dicta per the Fuller dissent. But if, and only if, he considered WKA inapplicable legal precedence for NbC.
Any thoughts as to why the allegiance of the parents is an important consideration in one context and not in the other regarding NbC?
Fuller was simply wrong that the allegiance of the parents were ever the rule of American law. We made citizens of children born oversees by statute fully realizing they may owe their political allegiance to the nation of their birth, not us. Such was the poisition of our early state department. At the same time, in the early republic we never acknowledged that a person born on our soil owed a foreign allegiance due to his or her parents. As far as I know, no nation even tried to make such claims. Certainly, England, the place where most of our immigrants cam from, did not.
@Ksdb king of sad you’re really not learning anything.
The common law was adopted in each state. Most enacted statutes specifically saying so:
“The constitution of New York, of 1777, declared that such parts of the common law of England, and of the statute law of England and Great Britain, as, together with the acts of the colonial legislature, formed the law of the colony on the 19th of April, 1775, should continue to be the law of .the state, subject, &c. So the common law and statute law of England were referred to in Missouri by the statute of 14th January, 1816, as part of the known and existing law of the territory, so far as the same was consistent with the law of the territory, and which, in a modified degree, was the Spanish law. The common and statute law of England, prior to the fourth year of James I., and of a general nature, were adopted by the convention of Virginia, in 1776, and in 1795 and 1805, by the government of Ohio ; and such is the substance of the statute law of Arkansas. 2 Ark. 206. But the Ohio statute was repealed in 1806. In the Revised Statutes of Illinois, published in 1829, it was declared that the common law of England, and the English statutes of a general nature made in aid of it, prior to the fourth year of James I., with the exception of those concerning usury, were to be rules of decision until repealed. In 1818, the common law was adopted by statute in the State of Indiana, and in 1835, in Missouri, under the same limitations ; and it is understood that the common law and the statute law of England, down to the year 1776, and applicable to their constitution and circumstances, are the law in the states of Mississippi and Georgia. In the latter state the same was declared to be in force by the statute of February 25, 1784. So the common law of England and the statute law of England, prior to 1760, were adopted by statute in Vermont, so far as they were not repugnant to the constitution or statute law of the state. James Kent, John Melville Gould, Oliver Wendell Holmes, Commentaries on Americican Law.
In the few states that did not expressly adopt it, it was sitll considered the law of the land:
“The common law of England, so far as it was applicable to our circumstances, was brought over by our ancestors, upon their emigration to this country. The Revolution did not involve in it any abolition of the common law. It has been adopted or declared in force by the constitutions of some of the states, and by statute in others; and where not explicitly adopted, it is yet considered as the law of the land, subject to modifications and express legislative repeal. The common law of England, applicable to our situation and government, is the law of this country, except where altered or rejected by statute, or varied by local usages, under the sanction of judicial decisions. James Kent, William Hardcastle Browne, Commentaries on American Law, pg. 212 (1894).
It was not exatly the same due to differences in statutes:
“The only principles of law, then, that can be regarded are those common to all the States. I know of none such which can affect this case but those that are derived from what is properly termed “the common law,” a law which I presume is the groundwork of the laws in every State in the Union, and which I consider, so far as it is applicable to the peculiar circumstances of the country, and where no special act of legislation controls it, to be in force in each State as it existed in England (unaltered by any statute) at the time of the first settlement of the country. The statutes of England that are in force in America differ perhaps in all the States, and therefore it is probable the common law in each is in some respects different. But it is certain that, in regard to any common law principle which can influence the question before us, no alteration has been made by any statute which could occasion the least material difference, or have any partial effect.” Chisholm v. Georgia, 2 U.S. (2 Dall.) 419, 435 (1793).
With respect to citizenship, only Virginia changed the common law by statute which after 1783 expressly said anyone born in Virginia was a citizen. Sorry those are the facts.
@ksdbThis passage is talking about evidentiary procedures for a court of claims. It’s not a case about citizenship, nor is it talking about citizenship. NOR was Smith v. Alabama, the case that was directly quoted.
How sad. You really don’t understand. I was pointing out that the court has said over and over that the Constitution must be interpreted in light of the common law, including in Minor and WKA, as well as a multitude of other cases. Didn’t mean we adopted the common law as federal law, it meant we were to look to the English common law to define terms like Smight v. Alabama and WKA expressly stated. Here is the same point by Chief Justice Taft:
“The language of the Constitution cannot be interpreted safely except by reference to the common law and to British institutions as they were when the instrument was framed and adopted. The statesmen and lawyers of the Convention who submitted it to the ratification of the Convention of the Thirteen States, were born and brought up in the atmosphere of the common law, and thought and spoke in its vocabulary. They were familiar with other forms of government, recent and ancient, and indicated in their discussions earnest study and consideration of many of them, but when they came to put their conclusions into the form of fundamental law in a compact draft, they expressed them in terms of the common law, confident that they could be shortly and easily understood.” Ex Parte Grossman, 267 U.S. 76, 108-09 (1925).
Understand why Gray says it must be interpreted in light of the English common law yet. I guess that really means ignore the English common law. Duh.
@ksdbI’ve already explained this to show the flaw in the Lynch v. Clarke decision, which is why Gray did NOT cite actual passages from that decision. Gray is fudging, but he never fudged to what you want to believe WKA says about NBC.
You are making no sense. Gray does not need to cite actual passages from a decision to cite it as support of his decision. He already cited plenty of authority defining natural born for those who can read.
@ksdbIt’s funny how you object to a citation of Marshall from the Venus not being a citizenship case, yet it actually and directly addresses the subject of citizenship unlike the quote you rely on to stretch a common law into defining NBC.
It was prize case and you are citing a dissenting opinion, not the majority, that quotes Vattel solely on the issue of domicile. Neither the quote nor the case has anything to do with who was born a citizen or who was natural born. My paralegal would know that.
@ksdbAs for Inglis v. Sailor’s Snug Harbor, you’re wrong in your citation of Story. His was a concurring opinion, but it was NOT the majority opinion.
The majority didn’t discuss the topic of citizenship generally. Made a special rule that it made clear did not generally apply.
@ksdb“still his national character was derivative from his parents”
He said was relevant “if born a British subject.” Not otherwise. Whether one born a British subject swiches nationality in war is a matter of public law.
“It appears to me that upon principles of public law as well as of the common law, he must if born a British subject, be deemed to adhere to, and retain the national allegiance of his parents at the time of the treaty.”
@ksdb“it makes no difference in this respect, whether or not parents had at the time of his birth, elected to become citizens of the state of New York, by manifesting an intention of becoming permanently members thereof …”
Again, you have trouble reading. It says if born on US soil it doesn’t matter if his parent manifested “an intention of becoming permanently members.” Sotry says if born before the Declaration or during British occupation, the election of the parents mattered as only then could he become an American citizen. His parent were either British subjects or American citizens at his birth depending upon whether they evidenced an intention of becoming permanently members of America. Such was the test. However, if born un US controlled territory, it did no matter if they were British subjects or citizens. It doesn’t matter what intent they manifested His father’s citizenship did not matter. Plain English. Do you know Story explains these rules is great detail earlier in the case?
@ksdbStory explains that the intention of becoming permanent members is part of an applicable ordinance”
Yes, and that is relevant only to determine if his father had elected to become a US citizen and hence whether his father was a British Subject or American citizen at birth. Not relevant if born on US controlled soil.
@ksdlFrom this we see a “common law” precedent for why Gray included the permanent residence and domicil criteria to make Wong Kim Ark a 14th amendment citizen.
Wrong Again. Gray never said permanent residence and domicile are required. Said the rule includes, is not limited to, a child of resident aliens and quotes Coke that temporary allegiance is all athat is required. Again, in English, Story said it made no diffferenece whether his parent had manisfested ” an intention of becoming permanently members..” if born on US controlled soil. Is there any quote you don’t screw up?
@ksdbHe could NOT because Gray was “abiding” by Minor’s definition of NBC: all children born in the country to parents who were its citizens.”
Still can’t understand what it means to say no one on the court was committed. Very sad indeed. Even sadder you think you are smacking anyone down when you can’t get a single thing right.
@my funny ballatine: You said: “Again, you get everything wrong You are citing the Virginia convention where Henry and Mason were arguing that we needed to adopt the English common law in the Constitution because if we didn’t, se had no common law of our own for federal purposes and hence they would not have all the protections of the common law. They pointed out Virgina had expressly adopted the english common law in 1776, as did nearly every state.”
You’re proving my point for me. You had claimed earlier that all states adopted the common law (now you say “nearly every state”) … the quote I provided show from 1788 (most of the original state Constitutions were adopted between 1776 and 1787) that the common law was NOT adopted by the states. If you don’t want to take my word for it, then you take it from the case that prompted your quote from WKA about being no common law in the sense of a national customary law. This originally came from Wheaton v. Peters in 1834 (before being cited in Smith v. Alabama and then WKA):
“No one will contend that the common law, as it existed in England, has ever been in force in all its provisions in any state in this Union. It was adopted only so far as its principles were suited to the condition of the colonies, and from this circumstance we see what is the common law in one state is not so considered in another.”
I’ve already explained this to show the flaw in the Lynch v. Clarke decision, which is why Gray did NOT cite actual passages from that decision. Gray is fudging, but he never fudged to what you want to believe WKA says about NBC. It just isn’t there.
As for the other part you quoted about reading the Constitution “in light of” English common law, here’s what the original Supreme Court case said on this issue (Moore v. United States, 1875):
‘The question is, by what law is the Court of Claims to be governed in this respect? May it adopt its own rules of evidence, or is it to be governed by some system of law? In our opinion, it must be governed by law, and we know of no system of law by which it should be governed other than the common law. That is the system from which our judicial ideas and legal definitions are derived. The language of the Constitution and of many acts of Congress could not be understood without reference to the common law. The great majority of contracts and transactions which come before the Court of Claims for adjudication are permeated and are to be adjudged by the principles of the common law. Cases involving the principles of the civil law are the exceptions.”
This passage is talking about evidentiary procedures for a court of claims. It’s not a case about citizenship, nor is it talking about citizenship. NOR was Smith v. Alabama, the case that was directly quoted. In fact, the exception that was brought up about common law in the dicta of that case was not even used. The court said:
“The statute of Alabama the validity of which is drawn in question in this case does not fall within this exception.”
It’s funny how you object to a citation of Marshall from the Venus not being a citizenship case, yet it actually and directly addresses the subject of citizenship unlike the quote you rely on to stretch a common law into defining NBC. What you want to believe requires the connecting of unrelated dots.
As for Inglis v. Sailor’s Snug Harbor, you’re wrong in your citation of Story. His was a concurring opinion, but it was NOT the majority opinion. That opinion was delivered by Smith Thompson, which I’ve cited. But, let’s look at Story who also said:
“still his national character was derivative from his parents”
In the scenarios Story uses, jus soli is NOT the deciding factor. Whomever controls the soil, thus controls the allegiance of the parents, which THEN determines the allegiance of the child. In the situation where the child becomes a U.S. citizen regardless of whether the parents are subjects or aliens, the determination is dependent on this deciding factor, which you quoted but apparently didn’t bother to read:
“it makes no difference in this respect, whether or not parents had at the time of his birth, elected to become citizens of the state of New York, by manifesting an intention of becoming permanently members thereof …”
Story explains that the intention of becoming permanent members is part of an applicable ordinance:
“We must then give a rational interpretation to the word, consistent with the rights of parties, and the accompanying language of the ordinance. By ‘abiding’ in the ordinance is meant not merely present inhabitants, but present inhabitancy coupled with an intention of permanent residence.”
From this we see a “common law” precedent for why Gray included the permanent residence and domicil criteria to make Wong Kim Ark a 14th amendment citizen. Gray did NOT declare Ark to be a Natural Born Citizen. He could NOT because Gray was “abiding” by Minor’s definition of NBC: all children born in the country to parents who were its citizens.”
Sorry to smack you down again, but this is what the Supreme Court said. At best, if we’re to call a 14th amendment birth citizen an NBC, it requires that the parents had expressed an intention to become permanent members of the United States and had present inhabitancy. This STILL excludes Obama, the son of a foreign national who was sent back to Kenya. The only reason Obama did not go back is because his white mother (who also had NO intention of being a permanent resident) divorced his deadbeat dad.
“A future court could say Minor and WKA were correct to look to the common law but that foreign born children of citizens were understood to be natural born under the common law of 1787.”
My point and query was that PRESENT law, to include the 1971 USSC, deems those born outside the United States and the 14th as clearly subject to congress’ naturalization laws. I think it is safe to say that McCain was a naturalized citizen (if the Gray decision is applicable to NbC) and would have to seek the court’s opinion to be eligible. He didn’t so he isn’t.
Interesting, if McCain considered WKA inapplicable he could fall back on notions that NbC was open to foreign born citizens of American parents in the vein of the dicta per the Fuller dissent. But if, and only if, he considered WKA inapplicable legal precedence for NbC.
Any thoughts as to why the allegiance of the parents is an important consideration in one context and not in the other regarding NbC?
“If WKA is NbC precedent and only those born in the US are natural born, regardless of the citizenship of the parents..”
I don’t think you have to read it to say only persons born in the US are natural born. A case can be NBC precedent for one class of persons without being precedent for other classes. Minor could say look to the common law and conclude native children of citizens are natural born under the common law. WKA could look to the common law and say native children of aliens are included. A future court could say Minor and WKA were correct to look to the common law but that foreign born children of citizens were understood to be natural born under the common law of 1787. Dicta in WKA throws doubt on such conclusion but did not address all the arguments that such persons would have been understood to be natural born without throwing doubt on the common law being the basis of the law. Of course, one might also argue the common law was not the basis but that is a much more difficult argument considering the mountain of authority supporting the common law. Whatever is precedent in WKA, the discussion of foreign born children is clearly dicta as their status was not before the court and addressing their status was in no way necessary to address the status of the native born. There is no way the court would have found McCain ineligible, just not clear how they would have gotten there. .
ballantine, here’s another odd thought;
Why is the allegiance of the parents an important consideration in one context and not in the other? This seems an important question and, as an American, at the heart of why sovereign citizens is bantered about.
The WKA court put the eggs in one basket with ECL natural born jus soli. I think it very odd that the consideration can change in light of our 14th. WKA was clear according to some that those born outside the US are citizens at the naturalization determination of the congress.
I think we’ve beaten this particular thought to death.
ballantine, thanks for humoring my layman’s painful ignorance of the law. Probably on the level of teaching a child to tie his shoes or read an analog clock.
Is my logic sound regarding present law as understood by you?
If WKA is NbC precedent and only those born in the US are natural born, regardless of the citizenship of the parents..
Then McCain, and those of his circumstance of American parents, born outside the US are naturalized and ineligible for office.
Is that not the present paradigm of WKA notwithstanding another case before the court using ECL Coke as the premise? What would be the impact of that case on WKA or the 14th? In other words, how does the language of the 14th reconciled with jus soli natural born with those born beyond the limits of the United States?
Hope your holiday was pleasant.
“ballantine, I suppose you can see why WKA as the final word on NbC rubs folks wrong. On one hand you have someone that is born abroad to an Admiral and his wife on official business of the government and on the other the product of an alien and American Marxists, but albeit born in the United States.”
Cases and history may rub people the wrong way but such brings us back to whether we should interpret the Constitution solely by history defining words by their meaning in a world that no longer exists. I don’t think WKA is precedent that says McCain is ineligible but its dicta doesn’t help him a great deal and subsequent courts seem to generally agree with it.
If I was deciding the case of McCain, I would have said McCain was eligible following the logic of Calvin’s Case which simply required one to be born in the allegiance of England. The court today does not necessarily need to limit the exceptions from jus soli to Coke’s 16th century exceptions. They were exceptions then because such persons, though born outstide England, were still understood to be born in the allegiance of England and not the nation of their birth. While limiting the exception for solders in foreign lands to territory occupied by the English army made sense in the 16th century, such makes little sense today. Ovbiously our solders oversees today owe no foreign allegiance and are under the protection of the United States and hence seem to clearly fall under the English concept of being born in allegiance. There may be additional circumstances today of persons being born in the Allegiance of the United States under circumstances that didn’t exist in the 16th century but exist today. Such persons could be deemed “natural born” in accordance with the logic of Calvin’s Case without changing the fundamental law..
“No court has directly addressed the issue.”
I thought you said that WKA defined NbC. Last I checked he was not born per the 14th in the United States and cannot, in light of the decision, ever be considered eligible.
The court doesn’t have to address the McCain issue if WKA is the litmus. He’s clearly ineligible according to Gray. Am I correct?”
I don’t think so. The status of children of aliens was not before the court.
The Court could still look to the common law to define the status of the native born without addressing whether foreign born children of citizens are natural born under the common law or the common law modified by statute as some English and American authorities asserted. WKA address the class of such persons in cursory fashion, but it didn’t need to talk about them at all. Seems to me such discussion is dicta.
ballantine, I suppose you can see why WKA as the final word on NbC rubs folks wrong. On one hand you have someone that is born abroad to an Admiral and his wife on official business of the government and on the other the product of an alien and American Marxists, but albeit born in the United States. Of course the politics are irrelevant in the eyes of the court, But some wonder if MvH would have kept both children from consideration for the office. I wish we had discussed this as a nation previously without the baggage of race or ideology. I think it important, maybe you do too.
“No court has directly addressed the issue.”
I thought you said that WKA defined NbC. Last I checked he was not born per the 14th in the United States and cannot, in light of the decision, ever be considered eligible.
The court doesn’t have to address the McCain issue if WKA is the litmus. He’s clearly ineligible according to Gray. Am I correct?
@portney Some, like yourself, contend that WKA affirmed rightly ECL over natural law and as such defined NbC for all intents and purposes.
Who in the United States said jus soli was not the principle of natural law. Coke said it was. Coke was a bigger influence on the framers that Vattel. They learned law from reading Coke as most predated Blackstone becoming popular. Numerous members of the 39th Amendment Congress, including the author of the citizenship clause, said jus soli was natural law.
@portney Has something changed and those naturalized become eligible for POTUS?
No court has directly addressed the issue. However, I think you see the difficulty and why some law professors raised McCain’s eligibility as an academic issue. Professor Chin’s argument was stronger than most gave him credit for. He pointed out that McCain was not even a citizen at birth, much less a natural born citizen, under the controlling precedents at the time. However, his article was countered by numerous professors who make the counter case better than I can. I predict the Court would find an argument to make such persons eligible probably pointing out that under English law in 1787 being “natural born” and “naturalized” were not mutually exclusive as Parliament had the ability to make one “natural born” pursuant to a naturalization statute. Such is why I suggested Congress pass a clear statute to such effect.
ballantine, please don’t take too much offense at my ranting. Your opinion is valuable and appreciated. With our discussion I find my footing less than solid but my urge to be willfully wrong if need be warranted. The matter is clear, insist beyond reason that MvH has purpose and precedent or suffer the consequences of WKA. I think the doubtless criteria of 1875 suits our republican purposes without upsetting the later landmark decision. Perhaps we can suggest that born a citizen and natural born are similar yet not enough to be the same. Let the two courts state something profound without one overruling the other regarding NbC. I think it in our national interest to push the perhaps lesser truth as supreme.
Thanks, ballantine, for your intellect, historical understanding, patience, and knowledge of our law.
Happy Thanksgiving to all of you, also. Cheers and blessings.
Portney and Ballantine,
Thanks for bringing substance to these discussions. Happy Thanksgiving everyone.
ballantine, I appreciate your patience but this is odd;
1. Some, like yourself, contend that WKA affirmed rightly ECL over natural law and as such defined NbC for all intents and purposes.
2. Then we become acquainted with the unintended consequences stated in Rogers v. Bellei as that which was originally noted in the WKA dissent; “If the conclusion of the majority opinion is correct, then the children of citizens of the United States, who have been born abroad since July 28, 1868, when the amendment was declared ratified, were and are aliens, unless they have or shall, on attaining majority, become citizens by naturalization in the United States; and no statutory provision to the contrary is of any force or effect. And children who are aliens by descent, but born on our soil, are exempted from the exercise of the power to exclude or to expel aliens, or any class of aliens, so often maintained by this court[,]”
3. Regardless of the ECL understanding prior to WKA, those not meeting the three criteria noted by the Rogers v. Bellei court are subject to the naturalization statutes of the congress and hence considered naturalized citizens (despite what the state department thinks). Has something changed and those naturalized become eligible for POTUS?
4. Children born in the United States to aliens are eligible to the office of the presidency, children born abroad to citizen parents are not.
Of course, this is only true if WKA is the actual arbiter of NbC (such as you believe). Perhaps its better to live in a world where kids born to Americans are eligible and those born to foreigners are not.
This is a law blog. So what does the law currently state regarding this issue?