-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.
Slarti:
I would just ignore ED. Being hated by the Birthers is a GOOD thing to put on your C.V.
Plus, maybe you can do some research on the Birthers??? Permit me to inquire if these topics might suffice:
Birthers and Kooky Action At A Distance – A Study of Group Think On The Internet
The Schrodinger’s Monkey Paradox – If A Birther Were Placed in a Box, Would Anyone Ever Open it???
Low Rents Transformations – How Life In A Trailer Park Creates Constitutional Scholars
Squeeky Fromm
Girl Reporter
Portney,
You’ll have to excuse Kevin Kesseler (aka Slartibartfast).
He lacks the emotional maturity to engage in civil discourse. This is further exemplified by his repeated insistence that you agree with his position or suffer his ridicule.
He is the definition of a bigot. If you look at Webster’s, you’ll see his picture under “bigot” (painted blue head and all).
My best advice is to share his comments with every university you can email. ~~~Until Kevin admits that Obama is not a natural-born citizen.
Portney,
Regarding your “peace be with you” comment–you seem to be under the mistaken impression that I’m upset or emotional… I’m not. I’ve made a rational decision that the proper course of action is to publicly ridicule seditious birther fools (like you) and I’m embracing that decision with gusto. All you have to do to get me to stop is to engage in a discussion in good faith–something I believe you are incapable of… bet you can’t prove me wrong 😉
Dunst,
I’ve never found a birther who understood that they were advocating the surrender of US sovereignty–once again showing them to be either stupid or dishonest.
Portney,
I have been following the seditious scum that comprise the birther movement for more than 3 years now and have heard them tell lies about, use vile and frequently racist slurs regarding, and/or make baseless and fallacious allegations against:
President Obama–Some birthers can’t even bring themselves to say his name so they make up fake ones and no birther can bring themselves to show the respect due the office and use his title–talk about childish…
Michelle Obama–some truely disgusting and racist bile has been spewed at the First Lady by birther trash like Lame Cherry, drk(H)ate, and their ilk
Sasha and Malia–attacks against minor children of any POTUS show the attacker to be filth–birther scum are no exception…
Dr. Dunham–who I believe to be a truly extraordinary woman, but attacking anyone’s mother in the way that birthers have tried to smear this great woman is beyond the pale–obviously no birther had a mother with a fraction of Dr. Dunham’s quality or they would know to be ashamed of their behavior (or, more likely, not done it in the first place)
Madeline and Stanley Dunham–anyone who would stoop to attacking someone through his grandparents is a scumbag in my book…
Governor Lingle
Governor Abercrombie
Dr. Fukino
Dr. (name escapes me–Dr. Fukino’s successor)
Dr. Onaka
Hillary Clinton
John McCain
and many more. The number of lies the birthers have told is countless, but the next admission of an error by a birther that I see will be the first. Additionally, anyone arguing the birther Vattel fantasy (that means you) is implicitly supporting the majority in the Dred Scott decision–which uses the exact same completely fallacious reasoning–and you wonder why people call birthers racist…
Sorry, but the notion that any birther is capable of conducting a mature discussion is a load of horse crap and if you’re not aware of that then you’re an idiot (and if you are aware of that then you’re a liar). Why should someone who is tacitly supporting all of the above crap and more be given any benefit of the doubt whatsoever? Would you care to repudiate any of the above or explain which of the birther talking points you believe to be out-and-out lies? Your near-certain refusal to answer these questions is just further evidence (as if more was needed…) that you are a verminous slug who takes pride in the shameful behavior described above–in other words, you’re a birther.
Pourtney, let me give you a couple of examples, and then ask you one question…
SITUATION 1: A person is born to 2 parents who obtain their citizenship 1 day after they were born. They always lived in this country afterwords, and the person was raised in America, never left it.
SITUATION 2: A person is born to 2 parents who are citizens. 1 day after he is born, they move to a foreign country. He is raised there, and naturalized there. On his 21st birthday, he returns to the United States, and lives there for the next 14 years.
On their 35th birthday (when they become eligible for the Presidency), which one has more foreign influence? The person who’s parents were foreigners, but naturalized and raised that person in America? Or the person who was raised outside of this country, but was born to 2 Citizen Parents? It seems to me that the latter would have more “foreign influence”. However, the birthers say that the first has an unreasonable amount of foreign influence, while they’re perfectly fine with the second.
Seems to me that having Jus Saguinus is a lousy way of getting rid of foreign influence. It seems to me that the requirement of having them live within the United States their entire life is a much better way, but obviously the Founding Fathers thought it was fine to have them live outside of the United States for all but 14 years…
As far as Dual Citizenship, the suggestion that merely having dual citizenship would be a disqualifier is basically suggesting that every country has a veto over who is eligible to be President and who is not eligible to be President. Do you really think that the founders would have allowed the United States to have this loss of National Sovereignity?
@portney ballantine, on the subject of the MvH “dicta” when Waite spoke of what was without doubt and that which had…how is this reconciled with the certitude of courts before and after? What doubts did he still think unresolved in 1875 that were worth noting.
A good question as I am aware of no one who had doubts about children of aliens under the common law. There were a few people by that time arguing that the common law should not be the rule, but no one questioned what the common law rule was. My guess would be he was talking about members of his court. For example, we know Justice Miller was not on board with defining the 14th Amendment by the common law rule. Perhaps he viewed the NBC clause similarly. We know Justice Swayne did define natural born by the common law and Justice Field also appeared to endorse the common law rule at least with respect to the 14th Amendment. So, on an issue that was not briefed or argued, I would guess there was some disagreement or doubts expressed in chambers that the Justices had no need to resolve.
@portney I think our appreciation of Vattel and natural law philosophy is worthy of note, though the courts for 100 years afterwards were of varying opinions as to the significance of such.
The memo does an excellent job of dismissing Vattel. The birthers have greatly exaggerated his influence and no cite cited him on who was natural born. And everyone wrote on natural law back then including Coke and Blackstone and there is no evidence that anyone thought jus soli was not the rule of natural law like Coke said. A number of members of the 14th Amendment Congress including the author of hte citizenship clause saw ju soli as the law of nature.
@portney Caveats were applied in most cases that disallowed mere sojourning aliens from giving birth to a citizen. This is, of course, particularly true for the period after the revolution.
Don’t think that is true. The states all followed the common law in their early citizenship cases. One state adopted such a rule much later.
@portney ballantine, do you believe that the children of those illegally in our country should be afforded greater claim to the presidency than those born abroad to American parents?
What I think should be the law and what the law are two separate things. Our founders never thought about illegal aliens. Madison didn’t think we had the authority to deport aliens from nations were not at war with.
@portney I find it hard to accept that Justice Gray would have considered that fair or a desired consequence of his decision. Rogers v. Bellei is an interesting reflection on the scope of NbC, the 14th is limited, perhaps more than we admit (i.e. children of illegal immigrants).
Again, read Maskell’s memo as he doesn’t think WKA or Rogers preclude the foreign born from being President and cites numerous scholars saying the same thing.
@portney we live, though, in a day when persons born here are, at times, of two allegiances. My understanding is that at the time of the framing such was unheard of and still is not accepted in our statute (State Department and naturalization laws).
At the time of the framing dual citizenship was common. The naturalization law of both England and the United States clearly reconized they were making dual citizens of people. Nations fought all the time over claims of allegiance to their citizens and we had one war over it. We argued with England over the status of British born American citizens and domiciled aliens living in the United States for years. In theory, public law was to solve these disputes, but they rarely did. By the Civil War the position of the United States was that we would protect both our native born and naturalized citizens from any claims of foreign allegiance both inside and outside of the United States. However, our position had always been that we would not recognize any claims of foreign allegiance on our native born citizens which was a position England never challenged.
bob, I will but have to print it to read properly and make notes. My laptop is not terribly helpful. The cursory comments are not fair to the depth of the CRS and are only said in passing of what was not noted. It appears well thought and documented.
What I look forward to is examining how broad a consideration is made by the author and on what grounds he considered some considerations minor or inconsequential.
It will be a significant challenge to state all those that hit our shores and pop a child were considered subjects-citizens from mere birth on our soil after the revolution. i believe there had to be leave on our part and intent on theirs as far as social compact.
ballantine, on the subject of the MvH “dicta” when Waite spoke of what was without doubt and that which had…how is this reconciled with the certitude of courts before and after? What doubts did he still think unresolved in 1875 that were worth noting? I think WKA landmark if indeed it resolved NbC, yet the ruling on the 14th would prove binding in ways that left little wiggle for those born outside the United States.
You really should try reading the CRS memo in depth. Vattel is expressly discussed — and rejected — as being a significant influence on the framer’s beliefs regarding citizenship.
It also discusses Rogers v. Bellei.
“Ambitious foreigners”
ballantine, no doubt you appreciate the depth of the CRS memo as a lawyer whereas I do more readily in the matter of its history. I think it interesting that it reads much in the way the WKA opinion does, harking on that which is undeniable in that our history is undeniably interjoined with English law. Where my skim of the memo discovered odd is the lapse of mentioning other influences that may have had effect on the framers. I think our appreciation of Vattel and natural law philosophy is worthy of note, though the courts for 100 years afterwards were of varying opinions as to the significance of such.
I think one interesting path of interest might be what the WKA court actually decided and what we have as citizenship law. The court recognized lawful immigrants who were not citizens as being able to give birth to American children in the United States. I can see the courts understanding that this was acceptable and in line with our history. But our history was not one of merely showing within a particular state, though the laws varied, and give birth to a citizen of that state. Caveats were applied in most cases that disallowed mere sojourning aliens from giving birth to a citizen. This is, of course, particularly true for the period after the revolution.
Perhaps one perspective to hold important is the immigrant’s intent and purpose within our jurisdiction. Someone that displayed aptitude for new allegiance and want to become a member of the civil society was granted the benefit of the doubt, to include the citizenship of their children.
ballantine, do you believe that the children of those illegally in our country should be afforded greater claim to the presidency than those born abroad to American parents? I find it hard to accept that Justice Gray would have considered that fair or a desired consequence of his decision. Rogers v. Bellei is an interesting reflection on the scope of NbC, the 14th is limited, perhaps more than we admit (i.e. children of illegal immigrants). It is worth discussing in what light we see those that come to our shores and their submission to our way of life, both civil and political, by respecting our laws and constitution. To come and not be a part is antithetical, in my estimation, of those that should be considered eligible.
John Jay may have only thought of “ambitious foreigners” when recommending the phrase…we live, though, in a day when persons born here are, at times, of two allegiances. My understanding is that at the time of the framing such was unheard of and still is not accepted in our statute (State Department and naturalization laws). And if the infants two allegiances is a poor argument, then what of those born Americans and yet raised by the trespassing foreigner in our midst?
Portney,
Did you read the Maskell Congessional Research Service opinion linked to above? It is the best paper I have seen on the subject. Here it the link again:
http://www.scribd.com/doc/74176180/Qualifications-for-President-and-the-%E2%80%9CNatural-Born%E2%80%9D-Citizenship-Eligibility-Requirement?secret_password=&autodown=pdf
Maskell gets WKA and Minor right. He also makes the case starting on page 14 that foreign born children of citizens are generally viewed to be natural born depsite the dicta in and concludes they should be considered natural born as well.
On John Jay, I don’t know why you think his quote means very much. He doesn’t define “natural born,” doesn’t say what a storng check would be or who he considered foreigners. Why would you think that a native birth requirement would not be considereed a strong enough check? It was the only check in the laws of England and the only check discussed in the Convention? If anyone wanted a stronger check, they didn’t say so. And why would you think anyone born on US soil was a “foreigner.” Again in the Convention, the term “foreigner” was used to differentiate from “natives.” You could look all day and would not find any legal authority in such period calling a “native” a “foreigner.”
Slarti, from your recent comments the only thing that others may take as a given is your lack of good character. Though you consider others the object of deserved malice, it is you who is pathetic and awful. As Leo has mentioned earlier, “Peace be with you.” You are in desperate need of such and should seek it without pause.
I’ll check back later to see if ballantine or someone of his maturity is interested in conversation.
Useful information and discussion:
http://www.scribd.com/doc/74176180/Qualifications-for-President-and-the-%E2%80%9CNatural-Born%E2%80%9D-Citizenship-Eligibility-Requirement
Portney,
Lying and willful ignorance are much more flagrant violations of decorum than, for example, calling you a worthless asshat and while your stupidity isn’t your fault, neither is it something to be proud of. My ranting isn’t bizzare–I’ve explained exactly what is behind it: to be a birther is to admit to bigotry and some combination of willful ignorance, stupidity, and dishonesty (usually liberal helpings of all three). Who raised you to believe such behavior to be acceptable? Whoever it was did you a grave disservice. I don’t care about whatever opinions you may hold (although I’m guessing that they are of the same low quality that is clearly endemic to your mental landscape), but you demand your own facts and that invites ridicule and contempt. Known liars don’t get the benefit of the doubt–if you don’t like it, tough shit. You should have thought of that before you started lying so poorly and obviously. People like you try to engender false equivalences through faux civility (being polite while acting in bad faith) and you’re not even self-aware enough to feel shame for your despicable actions. You seem to think that I’m mad or upset–in fact, just the opposite is true, I find people like you to be amusing and useful idiots. By your very existence you eloquently argue that the wingnuts on the lunatic fringe have too much influence with the right in American politics these days, so feel free to keep spewing your lies, but don’t expect me to stop pointing out that your credibility is nearly zero, your integrity is lower, and your intelligence is an infinitesimal fraction of that…
Gene:
Thank you!!! I will hang around. This blog has a lot of interesting Internet Articles, some of which I have posted on.
But I don’t see the Birthers ever going away. They get too many psychological rewards from all this. Plus, I think there is an independent cause for much of this, that being the Sovereign Citizen Movement.
Squeeky Fromm
Girl Reporter
Slarti, it is evident that you have issues far afield from that of whether “birthers” are being reasonable. Seek help from a behavioral health practitioner before you find yourself in a bell tower, high powered rifle in hand. Do you not have any idea as to your apparent utter lack of the minimum decorum as witnessed by those that suffer the bizarre ranting?
ballantine holds the vast majority of what I consider interesting as nonsense, yet I have never heard him use such coarse abusive epithets. Perhaps you should take his example and try to be civil.
“I take it no one has ever confused you with a gentleman.”
I take it no one has ever confused your birther nonsense with relevance either. The issue has been reviewed and decided: Obama is an NbC jus sanguinus and jus soli with evidence sufficient to satisfy any court in the land under local rules or the FRE. Personally I have no issue with your lot wasting your time improperly arguing irrelevant arcana over a matter that is res judicata, but if your goal is to be rid of Obama? Your tactic is about as effective as a dog chasing its own tail. There was once a poster on here who referred to birthers as the political and legal equivalent of a superfluous nipple: mildly entertaining, sometimes annoying and ultimately useless. Given that the issue of Obama’s citizenship and hence his eligibility are legally and factually moot at this point in time, the birther movement is at best useless and at worst dishonest and a thin cover for less politic reasons for disliking the man than the actually legitimate concerns over his Constitutional abuses while in office that might also draw attention to the high crimes and treason of the previous administration. Is the birther motivation solely racism? No, there is undoubtedly a certain percentage of you fighting this futile battle out of other political motivation although a great many of you are simply racists just marginally smart enough to realize saying “get rid of the nigger” is an ajax of impolitic speech that would get you discounted and dismissed by serious people immediately. However, you all are a bunch of useless nitwits nonetheless who take up bandwidth that could be used for discussing legitimate legal criticisms of Obama and other politicians. A circus sideshow distraction devoid of meaningful content. One ongoing example of the fallacies of argumentum verbosium, contextomy, and argumentum ad nauseam. An admonishment of “unhinged and unworthy of attention” coming from a birther is simply and ironically funny.
Portney,
I will read the RvB opinion.
As far as this goes “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.”
Do you really think you will get treated as an adult if you admit that you are full of shit? Hmm…
@Bob,
Have you read pages 36-38 and found the answers that Portney is looking for?
@ Portney:
Have you read Maskell’s new report? Pages 36-38 may be of particular interest to you.