-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.
It seems like Squeeky, Ballantine, and gorefan are not unknown to each other.
Welcome. Hope you all stay around for some of the non-birther topics, such as the stereo melodies.
Portney,
Since the court in Minor refused to say anything about the children of aliens born in the US, the question of dicta v. holding is irrelevant to President Obama’s citizenship.
Portney
“Perhaps if it were admitted that it was a common citation in later cases regarding citizenship then the argument could move forward.”
Cite some of those cases.
The problem with those that consider the citizenship decision of MvH as dicta is that it appears an argument of convenience, if not expedience, If it is dicta than it can be summarily dismissed regardless of its later use. Perhaps if it were admitted that it was a common citation in later cases regarding citizenship then the argument could move forward.
Leo,
In citing Wong Kim Ark, you point to the statement by Binney, “The child of an alien, if born in the country, is as much a citizen as the natural-born child of a citizen, and by operation of the same principle.’”
But in fact, Justice Gray cites this passage twice. The second time he writes:
“His [foreigner] allegiance to the United States is direct and immediate, and, although but local and temporary, continuing only so long as he remains within our territory, is yet, in the words of Lord Coke in Calvin’s Case, 7 Coke, 6a, ‘strong enough to make a natural subject, for, if he hath issue here, that issue is a natural-born subject’; and his child, as said by Mr. Binney in his essay before quoted, ‘If born in the country, is as much a citizen as the natural-born child of a citizen, and by operation of the same principle.’ ”
So he starts the sentence saying that a foreigner has a direct and immediate allegiance to the United States and that allegiance is so strong that it makes a child born to the alien “natural born”. And such a child is as much a citizen as the “natural-born child of a citizen”.
Why is he quoting the Calvin’s Case? Isn’t that the basis for the English Common Law principle of jus soli?
“slcraignb
I have read your posts several times and must confess that I have no idea what you’re talking about.”
LOL. You should read the silly complaint he has filed based upon this nonsense. I gave up trying to understand his argument about 3 pages in as it made no sense.
Mike A:
As a veteran Vattle Birther fighter, let me try to translate what slcraignbc was trying to convey into English. He is referring to several early Naturalization Acts where the language basically said that children of naturalized foreigners would also become citizens. The laws did not specifically say it was referring only to those who were born overseas. The implication was made that these acts controlled citizenship of ALL children of foreigners, not the common law natural born citizen concept.
This claim was first made way back in 1844 in Lynch v. Clarke. That judge was not persuaded, but the two citizen-parent Birthers have a hard time taking “NO!” for an answer, even after 167 years:
The provisions of the naturalization laws enacted by Congress, are urged as decisive, that children born here of alien parents were not citizens. The act of 1802, § 4, declares that the children of persons duly naturalized under any of the laws of the United States, or who, previous to the passing of any law on that subject by the government of the United States, may have become citizens of any one of the states, under the laws thereof, being under the age of twenty-one years at the time of their parents being so naturalized or admitted to the rights of citizenship, shall, if dwelling in the United States, be considered as citizens of the United States. (2 Story’s Laws of U. S. 852, 3.) A similar provision was enacted in the acts of 1790 and 1795. And the second section of the Act of 1804, provided that when any alien who had declared his intention, &c., should die before he was actually naturalized, his widow and children should be considered as citizens, and entitled to all the rights and privileges as such, upon taking the oaths prescribed by law. (2 ib. 943.) This section was repealed in 1828, (ch. 106.)—The acts make no distinction between children born here, and those born abroad, and it is said, this shows that none existed. That if, in fact, there had been any difference, the statutes would have provided only for the latter class.
The general words used, do not prove that general words were necessary. The statutes were necessary, and every part of them is fulfilled, although children born here were already citizens. They operate on the much larger class of the children of aliens, viz : those who were born abroad. With a law which admits aliens to naturalization after five years residence, the children that are born to them in the five years, will usually bear but a small proportion, to the number who come with their parents from abroad. It was just as necessary in the act of 1804, to have ditinguished between widows who were already citizens, and those who came here with their alien husbands. For a great many adult aliens come here single men, and marry citizens. Probably as great a proportion of the widows who are provided for in the general words of the Act of 1804, are native citizens, as the proportion of the whole number of children embraced by both acts, who are born here; yet no distinction respecting widows who are citizens, is made in the Act of 1804. And on this omission, the same argument urged relative to the children, will prove that all the widows of aliens must of necessity be aliens.
Upon the whole, the implication claimed from these statutes is not a necessary one, and cannot be raised to overturn an established legal principle.
http://nativeborncitizen.wordpress.com/2009/11/09/lynch-v-clarke-ruling/#more-7118
This same issue was discussed again in Wong Kim Ark 1898, with the holding that naturalization statutes do not trump natural born citizenship. I hope this helps.
Squeeky Fromm
Girl Reporter
slcraignbc:
I have read your posts several times and must confess that I have no idea what you’re talking about.
naturalborncitizen wrote:
“The entire basis of our system of jurisprudence is based upon people NOT agreeing with each other. Every case in every law book is based upon dissonance.”
It is true that all cases begin with disagreement. That does not imply there is any disagreement in how they were resolved, or why.
Ernesto Miranda and the State of Arizona, for example, disagreed whether the state’s interrogation of Miranda violated the U.S. Constitution. SCOTUS was closely divided on how to resolve this case. But there is no disagreement in the mainstream legal community about how SCOTUS did, in fact, resolve the case, and its rationale for doing so.
So, again: Why does mainstream legal community reject your perspective on the rationale employed by the Minor court to resolve the dispute between Minor and the Missouri’s registrar?
“I think Natural Born Citizen was referring to me when he used the words:
“Non-lawyers arguing on forums who have an agenda are hell bent on denying the truth of the case.”
Looks to me like Squeeky is doing just fine against the Vattellites who have some kind of law degree. This really isn’t rocket science.
I think Natural Born Citizen was referring to me when he used the words:
“Non-lawyers arguing on forums who have an agenda are hell bent on denying the truth of the case.”
Which canard, if it was true, would be worthy of discussion and condemnation of the guilty party. But the non-lawyer could at least plead ignorance as an excuse, or defense. Would that defense be available for a:
lawyer arguing on forums who has an agenda and is hell bent on denying the truth of the case.
Respectfully submitted,
Squeeky Fromm
Girl Reporter
pro se
A few further points on naturalizing children of our citizens born oversees and how such were treated only as citizens for municipal purposes and not treated as natural born citizens.
“The 4th section of the act of April 14, 1802 (Rev. Stat., § 2172) (making children of naturalized persons citizens, and extending citizenship to children born abroad to citizens), “is only a municipal law, and can have no effect beyond the jurisdiction of this country, and especially in Holland, if it should be in conflict with the local law of that country. If, therefore, Johannes (whose citizenship was contested) voluntarily placed himself within Dutch jurisdiction, his rights and his obligations must be measured by the laws of Holland and not by the laws of the United States.” Mr. Marcy, Sec. of State, to Mr. Wendell, Sept. 7,1854. MSS. Doni. Let.
“If, therefore, by the laws of the country of their birth, children of American citizens born in that country are subjects of its government, I do not think that it is competent to the United States, by any legislation, to interfere with that relation or, by undertaking to extend to them the rights of citizens of this country, to interfere with the allegiance which they may owe to the country of their birth while they continue within its territory, or to change the relation to other foreign nations which, by reason of their place of birth, may at any time exist. The rule of the common law I understand to be that a person “born in a strange country, under the obedience of a strange prince or country, is an alien” (Co.Lit. 128b), and that every person owes allegiance to the country of his birth.” Attorney General Hoar, 1869.
This follows the law of England:
“It is competent to any country to confer by general or special legislation the privileges of nationality upon those who are born out of its on territory; but it cannot confer such privileges upon such persons as against the country of their birth, when they voluntarily return to and reside therein. Those born in the territory of a nation are (as a general principle) liable when actually therein to the obligations incident to their status by birth. Great Britain considers and treats such persons as natural-born subjects, and cannot therefore deny the right of other nations to do the same. But Great Britain cannot permit the nationality of the children of foreign parents born within her territory to be questioned.” Royal Commission on Naturalization and Allegiance, pp. viii, 67 (1869)
Hence, in both England and the United States, jus sanguinis for the foreign born was a secondary citizenship that only applied for municipal purposes but could not confer such privileges against the nation of their birth. Hence, while England protested the drafting of unnaturalized British born subjects during the civil war, they told children of British subjects, born in the United States, that they were American citizens, that they owed allegiance to the United States and that they would only be treated as British subjects if they returned to England.
slcraigbc,
The “overuse” of “quotes” or their “incorrect” use as some “sort” of “indication” of “empahsis” makes your “posts” appear “juvenile”–just my “opinion”…
I would also note that there is only one living person whom I am aware of who has judicial precedent saying that they are a natural born citizen–President Obama. The holding of the Indiana Court of Appeals in Ankeny v. Daniels is quite clear on that point…
Ballantine,
Thanks for the additional info!
“Oh ya, to all of those who think they understand the Minor case please go back and read the Minor assertion within the briefs that she was a citizen by virtue of the 14th Amendment and because of that she should have the Right of Suffrage.”
The defendant did not even argue the case on appeal. No one asserted that Minor was not a citizen. The Missouri Supreme Court didn’t address the citizenshhip issue below because it was not raised. The Court, like it did in Slaughterhouse, decided to speak abour citizenship even though such issue was not raised before the court. The Court does this all the time but it doesn’t turn such discussion into the holding of the case. It is simply a fact that the court held that citizenship was irrelvant to the question presented to the court. One can spin all day, but such makes such discussion dicta.
Furthermore, even if the Minor court said that children of aliens were not natural born citizens, since Minor was not a child of aliens, there was no way one can argue such statement would not be dicta as there is no way the status of aliens was before the court or relevanat to the decision. Of course, the court did not say children of aliens were not natural born citizens for those who can read English.
What is with the “idiom” nonsense? Do you really think anyone understands you?
“Those who would suggest that “native born citizen” is wholly synonymous with “natural born Citizen” are those who are unaware of the FACT that the Federal Guv’mnt, at this time, refuses to “certify and/or acknowledge’ that ANY ONE is a “natural born Citizen”, preferring the turn of words of “native born U.S. Citizen”, (of which I have been acknowledged as being).”
The Supreme Court has made clear over and over that they meant he same thing.
“Under our Constitution, a naturalized citizen stands on an equal footing with the native citizen in all respects, save that of eligibility to the Presidency.” Luria v. United States, 231 US 9, 22 (1913)
“Except for eligibility to the Presidency, naturalized citizens stand on the same footing as do native born citizens.” United States v. Schwimmer, 279 US 644, 649 (1929)
“Under our Constitution, a naturalized citizen stands on an equal footing with the native citizen in all respects, save that of eligibility to the Presidency” Baumgartner v. United States, 322 US 665, 673 (1944)(quoting Luria v. United States”).
“The Constitution of the United States provides as a qualification for the offices of President and Vice-President that the person elected must be a native-born citizen.” Ex Parte Garland, 71 US 333, 395 (1866)(Justice Miller Dissenting).
“The alien, when he becomes a naturalized citizen, acquires, with one exception, every right possessed under the Constitution by those citizens who are native born (Luria v. United States, 231 U.S. 9, 22); but he acquires no more.” United States v. Macintosh, 283 US 605, 624 (1931).
“Citizenship obtained through natuvalization is not a second-class citizenship. It has been said that citizenship carries with it all of the rights and prerogatives of citizenship obtained by birth in this country “save that of eligibility to the Presidency.” Knauer v. United States, 328 US 654, 658 (1946).
“That circumstance proves the the Federal Guv’mnt refuses to acknowledge the apparent and obvious distinction made in the Constitution between “Citizen” and “natural born Citizen” and the lack of intellectual curiosity exerted by many who fail to thoroughly research the history of U.S. Citizenship under the Rule of Constitutional Law.”
No confusion. The Minor court itself tells us that there are two types of citizens, i.e., natual born and naturalized. Not really that difficult. “Natural born” is a subset fo “citizen.”
“The proof of that fact can be demonstrated by the fact that the ONLY persons NOW benefiting from the 14th Amendment Declaratory Collective Naturalization Born provision are those persons born to alien foreign nationals within the Jurisdiction, whether present legally or not.”
No. Wong Kim Ark says the NBC clause and the 14th Amendment are defined by the same rule and mean the same thing. No legal authority other than the sovereign citizens nuts have ever argued the 14th Amendment confers a different type of citizenship.
“In other words, the 1st Congress’ “Act to make an uniform Rule on naturalization” established Jus Sanguinis as the “uniform Rule” that would inform them as to the grant of Citizenship to Citizen parents” traveling anywhere in the world. All others seeking citizenship were/are required to conform to a multitude of Rules and Regulations with the prospect of ‘expatriation for cause’ ever present.”
Completely wrong. Such Congress said they were copying English law applying to foreign born children of citizens just like Parliament did for foreign born children of British subjects. Such statute had nothing to do with persons born in the United States and just like the English statutes they were copying conferred a secondary type of citizenship that was only recognized for municipal purposes as Secretary of State Marcy would claim. Hence, just like the English, persons made citizens under such statute were only regarded as citizens when they returned to the United States while natural born citizens born on our soil were treated as our citizens no matter where they were. Have you actually done any research at all on this?
Oh ya, to all of those who think they understand the Minor case please go back and read the Minor assertion within the briefs that she was a citizen by virtue of the 14th Amendment and because of that she should have the Right of Suffrage.
The FACT is, there was doubts whether “women” were citizens independently of a “husband” prior to the 14th.
A “woman’s” rights were greatly curtailed in “ancient times” to the extent that when a woman married a “Foreigner” her ‘citizenship’ was assumed as being that of her husbands.
Not trying to “change” minds, I’m fully aware there is little “hope” of that, just like the record to be accurate.
The Minor “precedent” on the Citizenship “class” which they found Minor to belong based on their determination of the circumstances requisite to be in conformity to the needs of A2S1C5 notwithstanding;
“There is NO acknowledged “legal” definition of the Constitutional idiom of natural born Citizen which is “enforceable” independent of adjudication within a Court of Competent Jurisdiction;
a circumstance upon which the Courts REFUSE to accept Jurisdiction or acknowledge standing since there has been no promulgated laws by the Congress to address the issue, therefore the ONLY means to seek the “legal” Constitutional definition in order to have an uniformly acknowledged “legal” definition is to challenge the status of a POTUS / V-POTUS or candidate for the Offices under the various State Election Laws.
Nevertheless, the question of the definition of the Constitutional idiom is in the 1st instant a Citizenship Question, with the transient Political aspects being of incidental import to the National Security interests which prompted the usage of the turn of words within the Clause.
In the totality of the Clauses Statutory Construction it is found to be an “exclusionary provision” constructed as a “Prerequisite imperative requirement” with no apparent discretionary language that would suggest that a “person” that was not could be made one by the office.
Those who would suggest that “native born citizen” is wholly synonymous with “natural born Citizen” are those who are unaware of the FACT that the Federal Guv’mnt, at this time, refuses to “certify and/or acknowledge’ that ANY ONE is a “natural born Citizen”, preferring the turn of words of “native born U.S. Citizen”, (of which I have been acknowledged as being).
That circumstance proves the the Federal Guv’mnt refuses to acknowledge the apparent and obvious distinction made in the Constitution between “Citizen” and “natural born Citizen” and the lack of intellectual curiosity exerted by many who fail to thoroughly research the history of U.S. Citizenship under the Rule of Constitutional Law.
In conclusion and with full disclosure, I too considered the Minor v. definition as “dicta”, but have been persuaded that it stands as unenforceable “precedent” on the question of the ONLY form of Constitutional Citizenship surviving the Founding Generation and not a function of naturalization Acts.
The proof of that fact can be demonstrated by the fact that the ONLY persons NOW benefiting from the 14th Amendment Declaratory Collective Naturalization Born provision are those persons born to alien foreign nationals within the Jurisdiction, whether present legally or not.
In other words, the 1st Congress’ “Act to make an uniform Rule on naturalization” established Jus Sanguinis as the “uniform Rule” that would inform them as to the grant of Citizenship to Citizen parents” traveling anywhere in the world. All others seeking citizenship were/are required to conform to a multitude of Rules and Regulations with the prospect of ‘expatriation for cause’ ever present.
The “Repeal” and then rewording of the 1795 Act establishes that Jus Soli is a circumstance requisite along with Jus Sanguinis in the determination of a who is or is not a natural born U.S. Citizen (sic).
Leo,
Peace be with you.
Nal
“Maybe you don’t recall, but the Founding Fathers fought a war so that they didn’t have to follow British law–why do you and Professor Skidmore want to cede US sovereignty by letting every other country in the world decide who can and can’t be president? Besides, we’ve already had French and Greek citizens as President and Vice-President (respectively) and, if I am not mistaken, President Obama never actually had British citizenship.. he was just legally entitled to it if he elected to obtain it–which he never did (and at or around the age of majority this option expired). Why is President Obama different from his dual-nationality predecessors? (Aside from having a better claim to eligibility?)”
Skidmore does not understand the issue. Perhaps he should go to law school England did not consider persons made subjects under the British Nationality Act of 1772 to owe allegiance to England or to be British subjects unless they moved back to England. Such statute merely conferred municipal rights to such persons when in England and did not confer rights that could not be claimed against their native country. From the Royal Commission on Natualization and Allegiance:
“no attempt has ever been made on the part of the British Government, (unless in Eastern countries where special jurisdiction is conceded by treaty) to enforce claims upon, or to assert rights in respect of, persons born abroad, as against the country of their birth whilst they were resident therein, and when by its law they were invested with its nationality.”
If England didn’t think children of British subjects born in the United States were to be treated as British subject while in America, why would anyone think the United States would? Indeed, there is no early authority at all that claims that dual citizenship or allegiance was relevant to American citizenship. Rather, our executive branch declared that we did not recognized foreign claims of allegiance on our native or naturalized citizens. In fact, in 1868, a report to Congress stated that a majority of our native born and naturalized citizens owed a foreign allegiance under the laws of Europe. Congress reacted by proclaiming that our native born and naturalized citizens only owed allegiance to us and that we would protect our citizens against all such foreign claims. The notion that we let foreign nations determine who are our citizens is absurd and has no basis in history. Foreign nations could make all Americans citizens if they wanted. To claim such is relevant to our municipal law is just silly.
“Until the emergence of Lockwood from the shadows, people argued that Minor was not a citizenship precedent. Now since Lockwood went mainstream, there’s no doubt in the “mainstream legal community”, including the Supreme Court Justices who have cited it, that it is a citizenship precedent. Non-lawyers arguing on forums who have an agenda are hell bent on denying the truth of the case. But there’s no genuine debate that Lockwood cites Minor as precedent on citizenship.”
Fuller citing Minor doesn’t change dicta to the holding. Unless the question of Minor’s citizenship was put before the court, the discussion of citizenship is not the holding. Really no argument on this point. In addition, Ex Parte Lockwood did not cite Minor on whether Lockwood was a citizen, an issue not before such court, but on whether suffrage was a privileges and immunity, the argument Lockwood was making before the court. And Fuller’s description of the holding does include the actual holding which was, in Fuller’s words:
“but that the right of suffrage was not necessarily one of the privileges or immunities of citizenship before the adoption of the fourteenth amendment, and that amendment did not add to these privileges and immunities. Hence, that a provision in a state constitution which confined the right of voting to male citizens of the United States was no violation of the federal constitution.”
It is not clear from Fuller’s citiation whether he thought citizenship was part of the holding, but law school 101 analysis makes clear it was not. Of course, nothing in Fuller’s citation asserts or recognizes that children of aliens were not citizens or natural born citizens as nothing in the Minor court says that.
I really don’t understand the argument that speaking of just “citizens” when referring to children of aliens means they were not referring to “natural born citizenship” when the Court only calls Virginia Minor a “citizen,” not a “natural born citizen,” and repeatedly makes clear that “natural born citizen” is a type of citizen. Can birtherdom really not understand the Minor court’s explanation that there were 2 types of citizens under the original Constitution. Natural born and naturalized. And saying it is unclear whether someone was a “citizen” meant it was unclear whether they were a “natural born” or naturalized citizen. It in no way means they are not “natural born citizens.” Accordingly, to claim Minor says that children of aliens cannot be natural born is simply being dishonest. It never specifies what type of citizenship it is talking about though, as I explain above, the context makes clear it is natural born citizenship. Such is the problem of citing dicta that doesn’t cite authority or detail the doubts it is mentioning.