-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.
bob,
Is it your position that the Court’s holding in Ark only applies to those born after Ark?
@Jordon
SCOTUS never described Kwock Tuck Lee as a U.S. citizen. The inference that he was one is wrong because (1) SCOTUS specifically referred to him as a domicile (which means he was not a citizen); and (2) Kwock Tuck Lee was born before Wong Kim Ark had been decided.
Ballantine,
“Maskell said they were Chinese national citizens.”
I don’t care what Maskell said they were. The Court went out of their way to note that his father “then deceased, who was born in America”. That would make his father a citizen.
Birth on American soil is prima facie evidence of citizenship.
Either way, the Court described Kwock Jan Fat’s father as “then deceased, who was born in America of Chinese parents and had resided at Monterey for many years”. That is not the description of an alien, but one who, though born of Chinese parents, was a U.S. citizen due to being born in America.
@Jordan
Now that you clarified that your source reported Kwock Tuck Lee as “Ah Tuck Lee,” that still does not make a difference, as Kwock Jan Fat was born before Wong Kim Ark was decided; as SCOTUS noted, his parents were domiciles at the time of his birth.
“In other words, Kwock Tuck Fat was not alleged to be born of permanently domiciled aliens, but of permanently domiciled citizens.”
The Court didn’t say that. It never mentioned the citizenship status of his parents at all. Regardless, Maskell said they were Chinese national citizens. He didn’t say they were not American citizens in that case. Read the WKA dissent, as one of his primary arguments was that the Chinese born on US soil would be Chinese nationals. Focusing on one line in a 50 page memo is a little silly.
bob,
I think I found the source of confusion. Here is a link to the SCOTUS opinion that I was reading.
http://scholar.google.com/scholar_case?case=1401629321922330337&q=Kwock+Jan+Fat&hl=en&as_sdt=2,26
Look at the second paragraph of Justice Clarke’s opinion.
Jordan,
A cookie does wonders…
bob,
Do you know how to read? If so, I suggest you read the second paragraph of Justice Clarke’s opinion and get back to us.
I cannot understand how someone with a working knowledge of the English language could read “He claimed that he was eighteen years of age, was born at Monterey, California, was the son of Ah Tuck Lee, then deceased, who was born in America of Chinese parents and had resided at Monterey for many years…” and then have the audacity to say “SCOTUS never mentions ‘Ah Tuck Lee'”.
Kwock Jan Fat claimed he was the son of Kwock Tuck Lee. SCOTUS never mentions “Ah Tuck Lee” (or “Kwock Tuck Fat”).
Kwock Jan Fat (and, therefore, Kwock Tuck Lee) were born before SCOTUS decided Wong Kim Ark. Kwock Jan Fat was born while the Chinese Exclusion Act was valid and in force.
SCOTUS at no point mentions where (or when) Kwock Tuck Lee was born, other than to refer to him as “Chinese” and a “Chinaman.”
@bob,
“It took me all of two minutes to figure out how Donofrio misread Kwock Jan Fat. Maskell accurately quoted SCOTUS because Kwock Jan Fat’s parents were domiciles (and not U.S. citizens) at the time of his birth.”
wow, ok, cookie
Should be Kwock Jan Fat not Kwock Tuck Fat. It’s easy to see how the Court screwed up Ah Tuck Lee; accidentally referring to him as Kwock Tuck Lee.
Other than Bob and Slartibartfast, does anyone else here think that Ah Tuck Lee and Kwock Tuck Lee were not the same person?
I ask this because the Court stated that “[Kwock Tuck Fat] claimed that he was eighteen years of age, was born at Monterey, California, was the son of Ah Tuck Lee, then deceased, who was born in America of Chinese parents and had resided at Monterey for many years; that his mother at the time was living at Monterey; and that there were five children in the family — three girls and two boys.”
If Ah Tuck Lee was born in America, he was an American citizen per the 14th Amendment. IAW the Court’s holding in Ark. (Everyone agree?)
If Ah Tuck Lee and Kwock Tuck Lee are the same person (which is the only logical conclusion -unless Kwock Tuck Fat had two fathers that he was born to) the Courts statement “It is not disputed that if petitioner is the son of Kwock Tuck Lee and his wife, Tom Ying Shee, he was born to them when they were permanently domiciled in the United States, is a citizen thereof, and is entitled to admission to the country” is not one that is contrary to the established citizenship of his father.
In other words, Kwock Tuck Fat was not alleged to be born of permanently domiciled aliens, but of permanently domiciled citizens.
I left this comment on Donofrio’s site:
“Where did SCOTUS say that Kwock Jan Fat’s father was born in the United States?”
Donofrio deleted that comment.
If Donofrio is unwilling to answer that simple question, then perhaps mrjr101 can do so on his behalf.
bob,
You’re absolutely right–it does, however, sound pretty Paraclete-y to me… I wonder if any of the birthers here have the integrity to claim the tinfoil hat of shame that is Leo’s destiny (he, of course, is far too big a coward to actually follow through on his words–just my opinion). The birthers here (and everywhere) just want to try and lend support to the ravings of racists and whackjobs by hoping people will mistake politeness for substance and arguing about the minutia to distract from the absurdity of the overall argument.
mrjr101 omits how Donofrio ends his article:
The timing of the memo’s appearance is alarming. I have been saying for quite awhile now that Obama doesn’t really have to worry about the natural-born issue coming back to haunt him in court unless he attempts to suspend the Constitution. I know that sounds paranoid. And nothing would please me more than to be wrong on that prophecy. If my fears don’t come to pass, I will gladly wear the tin foil hat of shame. But the appearance of the updated CRS memo at this particular moment portends a Constitutional disaster.
If Obama attempts to suspend the US Constitution and/or declare martial law and/or suspend the 2012 election… chances of the natural-born citizen issue finding its way to the Supreme Court on the merits increase exponentially.
…that is not the writing of a serious scholar.
Here’s what SCOTUS wrote:
It is not disputed that if petitioner is the son of Kwock Tuck Lee and his wife, Tom Ying Shee, he was born to them when they were permanently domiciled in the United States, is a citizen thereof, and is entitled to admission to the country. United States v. Wong Kim Ark[]. But while it is conceded that he is certainly the same person who, upon full investigation was found, in March, 1915, by the then Commissioner of Immigration, to be a natural born American citizen, the calim is that that Commissioner was deceived and that petitioner is really Lew Suey Chong, who was admitted to this country in 1909, as a son of a Chinese merchant, Lew Wing Tong, of Oakland, Cal.
Here’s Maskell’s accurate paraphrase:
In one case concerning the identity of a petitioner, the Supreme Court of the United States explained that “[it] is not disputed that if petitioner is the son” of two Chinese national citizens who were physically in the United States when petitioner was born, then he is “a natural born American citizen ….”
Bob,
I think that “average time to debunk” is a good metric on the frivolity of birther arguments.
@mrjr101
It took me all of two minutes to figure out how Donofrio misread Kwock Jan Fat. Maskell accurately quoted SCOTUS because Kwock Jan Fat’s parents were domiciles (and not U.S. citizens) at the time of his birth.
@portney I am at a loss as to why there are such histrionics on both sides of the debate, or worse, insistence that due solely in the fact they believe something so it absolutely must be.
Part of it is partisan politics. Most of it on the anti-birther side is outrage at people mischaractorizing settled law with bs arguments. I don’t think you understand the mountain of authority over the past 220 years that supports the jus soli interpretation. Maskell could have cited 100 more auathorities had he wanted to. There are few issues under the Constitution that are more settled.
@portney On another note, I did see the above comment regarding Leo’s find. Any thoughts? Have you considered visiting his den and converse with him on his blog? I would certainly love to witness such a discussion.
Leo was here and ran away to his moderated blog when challenged. I don’t argue on moderated blogs. He can come here or to Fobow or Doc C’s site where there is no moderation. As I said on his big point, he is quibbling about a minor point. The case was about the determination of whether Kwok Jan Fat was natural orn and clearly was referring to him when talking about excluding a natural born citizen from the country as that was why they were remanding. However, Maskell could have explained that better. A minor point in a 50 page decision citing a ton of authority.