-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.
“The court does not call his parents citizens. Leo is inferring that from the facts presented and from Wong Kim Ark.”
Ballantine, but the Court does acknowledge all the facts and the claims that the petitioner made about his father being born in the U.S. There was no claim from the petitioner’s side that his father was born in China.
“At the same time, the dissent’s argument in WKA was that Chinese natives could not become citizens of the US under chinese law, something the majority never disputed. So, just as one could infer his father was a citizen, one could infer his father was a Chinese national from WKA”
The petitioner never claimed that his father was a Chinese Native, at the contrary, the testimonies on his favor made his father a native born of the US. The WKA dissent that you are referring to does not apply to his father. It would apply to his father if his father was claimed to be a Chinese Native. In here the memo does not make an accurate representation by using the Chinese National inference of the petitioner’s parents. That does not go in line with the facts presented.
The memo before citing this case says:
“Despite this law and its extensions, commonly known as the Chinese Exclusion Acts, the federal courts continually and consistently held that children born “in” the United States of Chinese nationals were “natural born” citizens of the United States, even though the parents were not, and could never be, U.S. citizens themselves under the exclusion laws. In one case concerning the identity of a petitioner, the Supreme Court of the United States explained that “[i]t 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 ….”
The exclusion law did not apply to the petitioner’s father because the petitioner’s father was not claimed to be naturalized. That is not impeccable Ballantine.
Well, I already did my Donofrio debunking Internet Article:
http://birtherthinktank.wordpress.com/2011/12/01/the-paraclete-jumps-to-another-wrong-conclusion/
Here is what I said:
Sooo, the Kwock Jan Fat Court itself said:
[I]f he was born here, when [his parents] were permanently domiciled in the United States, he is a citizen, and that it was better to err on the side of a natural born citizen when they released him from imprisonment.
Maskell cited the Kwock Jan Fat Court as EXPLAINING:
the Supreme Court of the United States explained that “[i]t 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 ….
Sorry Paraclete, but I don’t see any big difference. The Court does not go into the citizenship of the parents. By noting they were permanently domiciled here, their citizenship is certainly left open to the implication they were indeed Chinese nationals. While the fact the father was native born would have made him a natural born citizen also, there is no other information provided to the court on that point. The Court does not go into it in their analysis.
That was an accurate summing up of the case.
Squeeky Fromm
Girl Reporter
Jordan,
How can “Birth on US soil” be prima facie evidence of anything? How does one tell that a person was born on the soil from “their face”? My position is that you are just another pathetic birther troll (or maybe you’re just a sock puppet…) that is incapable of making its point and doubly incapable of defending any of its arguments. But maybe that’s just me.
mrjr101,
You are conflating two different issues in order to make a straw man of my argument–how classy of you.
When you don’t refer to someone by their appropriate title (like President Obama) that is, in fact, impolite and disrespectful (apparently your mother failed to teach you about such matters). As it was a parenthetical comment (something endemic in my writing), I hardly feel I was making a big deal about it, but you seem to have no understanding of what it means to be polite and respectful while at the same time complaining that I’m being rude to you. That seems more than a bit hypocritical to me. Once again you illustrate that anything you write is just a waste of electrons…
Ballantine explained why the “question” of Leo’s that you were parroting was bullshit–apparently you weren’t paying attention, or you are incapable or unwilling to understand. Thus you are either being very impolite to Ballantine or you’re a moron–which is it?
Ballantine,
What I find to be pretty pathetic is the refusal to accept birth on U.S. soil to be prima facie evidence of citizenship while, at the same time, adhering to a belief that it makes one a natural-born citizen.
Is it your position that Kwock Jan Fat’s father belonged to one of the classes in which citizenship under the Fourteenth Amendment would not apply? If so, which one?
If I do not refer to someone as Mr. and question the accuracy of something it means I am not being polite or respecful? Someone needs to take a chill pill and learn about human behavior.
“The court does not acknowledge that the petitioner is the son of two Chinese national citizens; the court does acknowledge that he is the son born to an American father.”
The court does not call his parents citizens. Leo is inferring that from the facts presented and from Wong Kim Ark. At the same time, the dissent’s argument in WKA was that Chinese natives could not become citizens of the US under chinese law, something the majority never disputed. So, just as one could infer his father was a citizen, one could infer his father was a Chinese national from WKA. In addition, the fact that the court does not mention his father’s citizenship status implies such is not important to its determination of his status. If this is all you have to dismiss a 50 page memo, it is pretty pathetic. What is not legal scholarship is the typle of parsing and spinning of case law that Leo engages in.
mrjr101,
Yes, Mr. Maskell’s (for people so worried about politeness, you sure can’t seem to afford anyone you disagree with any titles of respect–which reminds me that I should add “hypocrite” to your list of epithets…) work is really an impeccable piece of legal scholarship (which is backed by the entire CRS, by the way). In addition, Leo aka “The Paraclete” is an incompetent, lying coward and you are doing nothing more than parroting the utter bullshit that he doesn’t have the courage to defend himself.
I started reading the CRS memo last night and after reading Leo’s latest post this morning I had to skip over to page 48 and read the SCOTUS case of Kwock Jan Fat v. White:
“He [the petitioner] 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….”
“…Ernest Michaelis, for twenty-six years a Justice of the Peace and for many years the official collector of fish licenses, testified, making reference, for purpose of identification, to a photograph of the petitioner. He said he had known the parents of the boy since shortly after he himself went to live at Monterey in 1879; that there were two boys and three girls in the family; that he had seen the petitioner frequently as a little fellow when he went to collect fish licenses (the boy’s father was a fisherman); and had known him ever since; and, referring to the photograph, he declared positively that he was sure of his identity and that he was born in Monterey. He added that the father of the boy was native born and was a voter in that community….”
“…He [the Government Inspector] concluded with the statement that in his mind there was no doubt that the Chinaman named Kwock Tuck Lee (claimed by applicant to be his father) had lived in Pacific Grove (the Chinatown of Monterey), and was a registered voter there; that he was married and had several children and that the testimony seemed to prove that the petitioner was a member of his family….”
None of the above claims were rejected by SCOTUS by reversing the judgment that the petitioner was not who he is. Those claims clearly established that the petitioner’s father was born in the U.S and accepted as such by SCOTUS.
The Court concludes:
“It is better that many Chinese immigrants should be improperly admitted than that one natural born citizen of the United States should be permanently excluded from his country”
From Leo’s Blog:
He calls this a “Frankenstein inspired patchwork” in reference to page 48 of Maskell’s memo…
“Put it all together and you get the following monstrosity:
…the Supreme Court of the United States explained that ‘[i]t 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 ….’
But the Supreme Court never said that. Here’s what they actually said:
‘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, 169 U.S. 649 , 18 Sup. Ct. 456.” Kwok Jan Fat v. White, 253 U.S. 454, 457 (1920).”
The court does not acknowledge that the petitioner is the son of two Chinese national citizens; the court does acknowledge that he is the son born to an American father.
So, I reflect on the following: Is Maskell’s work really an impeccable piece of legal scholarship?
bob,
Birth on U.S. soil is prima facie evidence of U.S. citizenship.
Do you understand what that means?
He is the one claiming that anyone domiciled in the U.S. must be an alien.
*sigh*
I never made such a claim. That SCOTUS later described other petitioners as “native-born citizens of the United States permanently domiciled therein” does not imply that Kwock Jan Fat’s father was a citizen.
If anything, the absence of a mention of citizenship further implies he was not. E.g,, SCOTUS described Wong Kim Ark’s parents as “domiciled residents of the United States, and had established and enjoyed a permanent domicile and residence therein…” They, obviously, were not citizens.
Wong Kim Ark had to take a case to SCOTUS to establish he was U.S. citizen, despite being born in the United States. Kwock Jan Fat — and his father — did not enjoy that presumption at the time of their births.
Ballantine,
“This makes no sense at all. You really don’t understand that citizenship and domicile are two separate things? A US citizen can establish their domicile oversees and an alien can establish their domicile here.”
You should be directing your analysis to bob. He is the one claiming that anyone domiciled in the U.S. must be an alien. I don’t agree with him and he has not provided any support for the proposition.
bob,
The Chinese Exclusion Act prevented Chinamen from becoming naturalized U.S. citizens It said nothing about those who were native born (as it was established by testimony that Kwock Jan Fat’s father was).
Birth on U.S. soil is prima facie evidence of citizenship.
question: Where did you come up with the word “domiciles”? It does not exist in the Court’s opinion. Yet, you have used it repeatedly.
“Can a U.S. Citizen not be domiciled in the U.S.?
Wouldn’t your position be easily defeated by citing a case in which the Court referred to a U.S. Citizen as having been domiciled somewhere in the U.S.?”
This makes no sense at all. You really don’t understand that citizenship and domicile are two separate things? A US citizen can establish their domicile oversees and an alien can establish their domicile here. Public law 101.
Jordan,
Since you seem to see some significance to this, could you please explain what it is–or if you can’t do that, could you please explain why you want to waste people’s time with your meaningless minutia? I ask because an obsessive focus on “anomalies” which, upon closer inspection, are unremarkable is a hallmark of birther “research”.
Of course Kwock Jan Fat (and Kwock Tuck Lee, if he weren’t already dead) would benefit from Wong Kim Ark.
SCOTUS is simply making the point that, at the time of Kwock Jan Fat’s birth, his parents weren’t citizens (because Wong Kim Ark had not yet been decided; the Chinese Exclusion Act was still in force). “Domiciles” in the context SCOTUS is using it, refers to people who are not citizens.
““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.”
Sorry, don’t get your point. Maskell didn’t say his father was not US citizens. So why do you have a problem with what he said? Being a US citizen does not preclude one from being a Chinese national.
“Petitioners, Chang Chan and three others, claiming to be native born citizens of the United States permanently domiciled therein”
Chang Chan v. Nagle (1925)
bob,
I think Jordan’s inference* here is correct. After the WKA ruling, it would be applicable to anyone’s birth–after all, it applied to Mr. Wong himself (who was clearly born before the decision).
* Jordan–if you have a point, why don’t you make it?
bob,
Can a U.S. Citizen not be domiciled in the U.S.?
Wouldn’t your position be easily defeated by citing a case in which the Court referred to a U.S. Citizen as having been domiciled somewhere in the U.S.?