-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.
Gene,
I don’t think the birthers will stop tilting at windmills (or filing Quixotic and frivolous lawsuits) until President Obama actually leaves office, but I think Squeeky has a fine spinnaker as well…
Portney,
I highly doubt that I’m unhinged (available evidence tends to indicate otherwise) and I just want to make clear the utter loathsomeness of birthers like yourselves. There can be no conversation between gentlemen (or ladies) when birthers are involved as any gentleman would conduct themselves in good faith and no birther is able to meet that standard without admitting President Obama’s eligibility (and thus denying they are a birther). Do you think that willfully ignorant, idiotic liars deserve the same sort of treatment as gentlemen do? Grow the fuck up and admit that you are full of shit and I’ll treat you like an adult, otherwise I’ll continue to see you as both less endearing and less useful than a slime mold.
“Which makes you a pathetic birther fuckwit and nothing more.”
I beg your leave when I state humbly that you appear unhinged and unworthy of attention. Are you generally in the habit of expressing yourself in such a manner? I take it no one has ever confused you with a gentleman.
Squeeky Fromm Girl Reporter,
I must say I like the cut of your jib. I do hope you decide to hang around once the birther nonsense has passed – which should be shortly after the election given the current lot of ridiculous candidates running against Obama (not that I’m a fan, because I’m most decidedly not). I would hope that the 22nd Amendment would once and for all end their beating a dead horse.
mrjr101, I would ask that you read the RvB opinion; “That type, and any other not covered by the Fourteenth Amendment, was necessarily left to proper congressional action.” Constitutionally, naturalization is the province of the congress. RvB, if the 14th is applicable to NbC, prevents any consideration for eligibility to children born abroad to American citizens.
Those that hold the common law as the rule are failing to recognize the impact of WKA on those foreign born without further adjudication. The WKA decision holds that the only born citizens are those that occurred within the United States, those that acquire their citizenship at birth abroad are naturalized.
I understand and appreciate both points of view. It was just hoped that the scope and clear impact of the WKA decision was understood.
Portney:
I am not being unpleasant. I am simply pointing out simple observations on this stuff. This is a legal blog, and one expects a certain degree of HONEST DISCOURSE from people, and when they have been repeatedly provided backup from legal cases and repeatedly rebutted WITH EVIDENCE, then it is time for them to make some concessions. That is if they are truly seeking HONEST DISCOURSE.
I don’t see much of that going on, on your part and others, so I made my Heimlich remark. Slarti has put forth the Shibboleth Test, and I can see why a person might not want to speak certain words at another’s insistence.
So let me put it my way, as a question. Do you believe that Obama is a natural born citizen. If so, why. If not, why.
Squeeky Fromm
Girl Reporter
Portney,
Their entire argument revolves around the central point of who is a citizen at birth. That is their determining factor and the common denominator. McCain is not a citizen at birth by the 14th, that is clear, but he was declared a citizen at birth by statute. Do you find this simple, or rather, an ambiguous concept?
The 14th is not all inclusive of NBC,
No one can lie to you and say the WKA holding (if it is an Nbc holding) is all inclusive of NBC.
No one can lie to you and say that the Minor holding (if it is an NBC holding) is all inclusive of NBC.
Portnoy,
On the contrary, I clearly explained how any birther can get civility and substantive answers out of me (by saying shibboleth) and no one seems able to do it. I was even willing to be civil without that provided my comments were argued in good faith–I even offered mrjr101 another chance when he violated that with his stupid assertion that I was being dishonest by defining my terms (if you don’t understand why this is moronic then you have no place speaking in a discussion about logical reasoning). It’s not my fault that all of you are arguing points that have no merit whatsoever. Regarding your question about being rude to Squeeky–yes, you and your fellow hatrioits have been rude to her as well as the rest of us (and incredibly rude and disrespectful to Ballantine) by your unwillingness to engage in debate in good faith. Which makes you a pathetic birther fuckwit and nothing more.
Squeeky, why are you being unpleasant? Have I been rude to you and had not realized?
Is this something that is considered acceptable in your circle of “friends”? Well, I would suggest to remind that you are not amongst them and should hold yourself to a higher standard than you are familiar. It would be appreciated if you would make the effort. I am not asking that you agree with anything I have stated, only that your response be civil and toned to the blog you have joined.
mrjr101,
In light of RvB, my point was supposedly simple…if the 14th is the definition of NbC then those born outside the US are naturalized and thus ineligible;
“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.
***
If you are subject to the congress for your citizenship, you are ineligible if, and only if, the 14th is the litmus. The only other option is denying the 14th is the NbC definition for folks born abroad to American parents and hoping that the thoughts expressed in the WKA Fuller dissent are applicable.
“a request for good manners and honest discourse.”
OMG, I had to Heimlich myself. This statement is coming from people who supposedly can not string two sentences together or bring themselves to even read the cases they are discussing. At which point there would be no question.
What frigging part of understanding natural born citizenship is hard??? It’s being born here, and not the kid of an invader or diplomat.
It’s being born outside the country to American parent or parents as legislated by Congress as sufficient to constitute natural born citizenship.
“honest discourse”would have grasped this simple concept a thousand comments earlier.
What some people are here to do, is the opposite of “honest discourse” – – -they are here to obfuscate and play stupidly ignorant word games and be
“willfully ignorant.”
I am with Slarti on this one. The discussion got to the point of being ludicrous a long long time ago.
Sooo, Portney: Quit pretending you have questions.
Squeeky Fromm
Girl Reporter
Slarti, you failed to recognize a request for good manners and honest discourse. You insist on being unpleasant and rudely condescending. As to to the request for your thoughts on RvB, please disregard. I don’t see the point of your commentary other than to incite and inflame. You do understand that this is a law blog and not Fogbow?
Portney,
Actually, their general consent is that any person that is considered to be a U.S. citizen at birth, whether this interpretation is made in light of the English common law, or statutory British law, or both. subject to the jurisdiction, or not, with no citizen parents, or with, with dual allegiance, or single ones, with strong ckecks (whatever that means), in statutes, or in naturalization definitions of the 18th century that would make a person a U.S. citizen at birth, or perhaps a future naturalization amendement that would make one a U.S. citizen at birth, born in the limits, or outside of the limits, born to illegal immigrants in the territory, are also considered to be a Natural Born Citizen under Article II Section I.
Portnoy,
What do I get out of being pleasant to someone who admits to being willfully ignorant? Should I fail to note that birthers, in general*, are stupid and dishonest as well? Or that every single birther is a bigot? Sorry, but the birthers all left reasonable behind way back and have no claim on my civility now. Why don’t you just admit President Obama is a natural born citizen? We all know it. And for all you like to bring up children of citizens born abroad, no court is ever going to rule against the eligibility of such a child (which would explain why Senators Clinton and Obama sponsored a Senate resolution which made it clear they wouldn’t be taking the matter to court). Say the shibboleth and I’ll treat you with courtesy and respect, but until then you deserve nothing but contempt.
* Everyone can decide for themselves whether or not these labels apply to you. I certainly think they do.
p.s. You said, “folks like McCain are ineligible unless they have sought the court’s opinion”. As I understand it, the courts cannot give an opinion absent a case and controversy–therefore your entire statement is an impossibility. Yet another shining example of your substandard intelligence–or is it just your dishonesty?
Slarti, I see no reason for any of us to be unpleasant. I wanted your opinion of the USSC case relevant to my point involving the 14th as a NbC litmus. If accepted, naturalized folks like McCain are ineligible unless they have sought the court’s opinion. Ballantine admitted that some sort of reconciliation is required by the court in light of WKA and RvB.
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.
Squeeky,
The Birther Bible is great–I left a comment over there, too… and ksdb is unquestionably stupid and willfully ignorant.
Portney,
I’m interested in birther delusions and the lengths they will go to in order to protect those delusions, not abstruse points of settled law. In other words, I’m studying the behavior of you and your fellow birtherstani, not Ballantine’s legal tutorials. There is no indication that the Founders ever thought about your “unintended consequence” or would have been in any way concerned about it if they did. I would also note that the only reason to be willfully obtuse is if your arguments cannot withstand logical scrutiny. Something all birthers prove beyond all doubt every time they make a comment…
Slarti, admittedly I’m ignorant hence the discourse with the hope of understanding. What is your opinion of the discussion ballantine and I have had regarding the impact of Rogers v. Bellei, 401 U.S. 815? Do you not find it interesting that if 14th born is applicable to NbC then it is required to acknowledge all those born outside the United States as naturalized? The legal dynamic is clearly that children born to illegal immigrants are eligible and those born to American citizens abroad are not if the 14th is the metric for NbC. My comment to ballantine was that some of us were willing to be willfully obtuse regarding WKA as a NbC definition if such unintended consequences were the result.
ksdb:
You stupid twit! Are you still trying to act like you don’t know this???:
“@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!”
I have given you the explanation for this over and over. Plus, if you would get off your lazy hind end, and read Wong Kim Ark you would have found it for yourself, right in the first few paragraphs of Section V:
“The same Congress, shortly afterwards, evidently thinking it unwise, and perhaps unsafe, to leave so important a declaration of rights to depend upon an ordinary act of legislation, which might be repealed by any subsequent Congress, framed the Fourteenth Amendment of the Constitution, and, on June 16, 1866, by joint resolution, proposed it to the legislatures of the several States, and on July 28, 1868, the Secretary of State issued a proclamation showing it to have been ratified by the legislatures of the requisite number of States. 14 Stat. 358; 1 Stat. 708.”
Take my advice, and quit trying to practice law without a license. You can’t even manage to read the cases. Do you have short term memory loss or are you just really very dumb???
Geeesh.
Squeeky Fromm
Girl Reporter
Hi Slarti:
I was surprised to see this thread was still going on. You asked:
“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…”
I think they will continue on, for LO, it is written in The Birther Bible. The Book of Rhetorics, Chapter 2, Verses 1-8:
Chapter 2
1. But if thou canst not hold thy tongue, then it is better to contend with words than to stew in silence, for such will busteth thy gut and cause fits.
2. And yea, here is the manner in which thou shouldst confront the Anti-Vattelites, if thou art feeling lucky.
3. Avoideth all talk of the Wong Kim Ark legal case, for here there be many dragons. Sayeth simply that Wong Kim Ark was not running for the Presidency, and prayeth earnestly that the Anti-Vattelite knoweth not the case well.
4. If however, the Anti-Vattelite knoweth well the case, then shouldst thou falsely remember thou hast an appointment with a physician, or some other pressing errand, and promise to return on the morrow. But, returneth not.
5. Doeth likewise with the case of Ankeny v. Governor, although thou mayst also calleth these judges by foul names, they being but judges of the state.
6. Some Birthers doth meet with success by copying and pasting large numbers of words from previous arguments without care that these words pertaineth not to the argument at hand.
7. Likewise mayst thou distracteth from the argument by the calling of names, limning the Anti-Vattelites as Minions of the Usurper.
8. All such artfulness mayst be avoided if thou simply stays among the chambers of like-minded Birthers, where thou canst be comforted with the sound of echos.
http://birtherthinktank.wordpress.com/2011/11/27/the-birther-bible/
Squeeky Fromm
Girl Reporter
Portnoy,
Since you cannot provide any instance where John Jay (or any other Founding Father) considered a person born in the United States* a foreigner, all your comment demonstrates is your own ignorance.
*diplomat, enemy, yada yada yada…
“Permit me to hint, whether it would be wise and seasonable to provide a strong check to the admission of Foreigners into the administration of our national Government; and to declare expressly that the Commander in Chief of the American army shall not be given to nor devolve on, any but a natural born Citizen.” –John Jay (July 25, 1787)
I’m not exactly certain how fuzzy the interpretation of “to provide a strong check to the admission of Foreigners” can possibly be in light of those that insist 14th born citizens, that are dual citizens at birth, can be considered eligible. I think in light of admitting that current legal opinion (Rogers v. Bellei, 401 U.S. 815) prevents naturalized citizens from holding presidential office, especially those born to American citizens abroad, is telling if the 14th is applicable to NbC.
I think an important point to reconcile is the injustice incurred by accepting 14th NbC as acceptable also directly impacts those Americans not born in the United States and subject to the jurisdiction are, in fact, naturalized at the discretion of the congress. This is true until the court deems otherwise.