-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.
@portney Personally, I’ve believe that the authors’ of the 14th intended one to reflect the other and likely to the degree of synonymous. Though, regardless of their intent it could prevail that they are incapable of being the same due to the MvM decision. I just don’t have the legal competence to figure it out.
Not sure what Marbary has to do with this. I am not sure WKA explains the relationship between the clauses. I think it tries to avoid that by saying the first part of the 14th means the same thing as the NBC clause, at least with repect to the native born. The natural born subject needed to be born both in the dominions of the crown and in subjection to the crown. The 14th Amendment says one must be born both in the dominions and subject to the jurisdiciton of the sovereign. Different ways of saying the same thing.
Once you start saying the 14th and the NBC clause don’t mean the same thing, it starts to get difficult as contextually it is difficult to have a coherent reading. Whether anyone in the early republic thought the foreign born could be natural born is an open question. I think it is plausible but there is not much evidence. The framers of the 14th didn’t really talk about this and there language could have been clearer. No one in such Congress suggested the foreign born would be citizens without statute. No one talked about them at all. Most framers of the 14th thought the blacks were already citizens due to their native birth. Others thought Dred Scott neeeded to be over-ruled. No one thought they were changing the law other than to remove Dred Scott. They also thought they were clarifying who could be President even when enacting the Civil Rights Act clause. No one really explained how exactly that worked. They seemed to think any native born citizen, even one by the Civil Rights Act would be natural born. Some citations from the 39th Congress:
“The Constitution of the United States provides that no person but a native-born citizen of the United States, with other qualifications as to age and residence, shall be president of the United States…. Is the Congress of the United States prepared at this time to adopt a proposition that negroes and Indians and Chinese and all persons of that description shall be eligible to the office of President…” Senator Williams, Cong. Globe, 39th Cong., lst Sess. 573 (1866).
“Now if you pass this bill you will allow the negroes of this country to compete for the high office of President of the United States, because if they are citizens at all, they come within the meaning and letter of the constitution of the united states, which allows all natural born citizens to become candidates for the Persistency…” Rep. Rogers, Cong. Globe, 39th Cong. 1st Sess. 1122 (1866).
“I want to make another extract from the speech from the gentleman from New Jersey. He said ‘If you pass this bill you will allow negroes to compete for the high office of President of the United States.’ As for the fear which haunts the gentleman from New Jersey, if there is a negro in the country who is so far above all the white men of the country that only four million of his own race can elect him president of the United states over twenty six million of white people, I think we ought to encourage such talent in the country.” Rep. Windham, Cong. Globe, 39th Cong. 1st Sess. 1158 (1866)
“in order to be President of the United States, a person must be a native-born citizen. It is the common law of this country, and of all countries, and it was unnecessary to incorporate it in the Constitution, that a person is a citizen of the country in which he is born….I read from Paschal’s Annotated Constitution, note 274: “All persons born in the allegiance of the king are natural born subjects, and all persons born in the allegiance of the United States are natural born citizens. Birth and allegiance go together. Such is the rule of the common law, and it is the common law of this country as well as of England. There are two exceptions, and only two, to the universality of its application. The children of ambassadors are, in theory, born in the allegiance of the powers the ambassadors represent, and slaves, in legal contemplation, are property, and not persons.” Sen. Trumbull, Cong. Globe. 1st Session, 42nd Congress, pt. 1, pg. 575 (1872)
“This provision is simply declaratory of what the law now is…Blackstone says ‘The first and most obvious division of the people is into aliens and natural-born subjects. Natural-born subjects are such as are born within the dominions of the crown of England, that is, within the ligeance, or as it is generally called, the allegiance of the king; and aliens, such as are born out of it.’ The principle here laid down applies to this country as well as to England. It makes a man a subject in England, and a citizen here… The English Law made no distinction on account of race or color in declaring that all persons born within its jurisdiction are natural-born subjects. This law bound the colonies before the revolution, and was not changed afterward. The Constitution of the United States recognizes the division of the people into the two classes named by Blackstone – natural born and naturalized citizens.” Rep. Wilson. Cong. Globe, 39th Cong., lest Sess. 1115-16 (1866).
@portney On the latter; those that have handily won the ECL-WKA argument fail to answer as to the inherent differences of subjecthood and citizenship and the nature of where the granting of sovereignty should come.
While many simply conflated “citizen” and “subject” in the founding period, technically the terms meant something different. The leading treatise in the early republic explained:
“Subject and citizen are, in a degree, convertible terms as applied to natives, and though the term citizen seems to be appropriate to republican freemen, yet we are, equally with the inhabitants of all other countries, subjects, for we are equally bound by allegiance and subjection to the government and law of the land.”
Citizens and all other inhabitants including aliens are subjects as they are in subjection to the government and the law of the law. Subjection to the law of the land is another way of saying “subject to the jurisdicition” which would up in the 14th Amendment and just another way of saying one owed allegiance. Thus in England and the US, everyone on the soil, even aliens, were subjects as they were bound by at least a temporary subjection. In England, natural born subjects, or persons given the rights of natural born subjects, were granted additional rights under its municipal law. In the US, citizens were granted additional rights under our municipal law which just stop referring to all citizens as natural born like England did.
Squeeky,
I would note an interesting sequence of events here:
1. Mr. Maskell produced a 53-page report detailing the case that President Obama was a natural born citizen.
2. Leo (who has previously been proven to be full of shit) takes one sentence to task where Mr. Maskell (and possibly the historical record) are not very clear on a supporting point. Leo cites this as sufficient to disregard the entire report–very convenient as there is no rational standard by which Leo’s writings have a fraction of the credibility of Mr. Maskell’s.
3. Leo posts his pitiful attempt at rebuttal on his website–which is now moderated to the point of no one but Leo being allowed to post–eloquent testimony as to his cowardice.
4. Leo’s “Greek chorus” of birthers (both here and elsewhere) lap up the Paraclete’s shit like good lickspittles and attempt to parrot it far and wide.
5. Some of the birtherstani go so far as to demand Mr. Maskell’s arrest for writing a 50-page report that they could only refute one sentence of.
6. Portney uses said sentence to try to cast doubt on Mr. Maskell’s credibility and integrity.
7. Bob emails Mr. Maskell asking him to clarify the sentence in question.
8. Mr. Maskell responds to Bob clarifying the sentence (and explaining why he felt his interpretation was valid).
(9. You went Kwocking about in your article… having actually read the pertinent information and done additional research)
After this point (by which time it is easy to see who the good and bad actors are), it’s what doesn’t happen that’s interesting…
No substantive response to Mr. Maskell’s reply or the rest of the 50-page report from Leo, Portney, nor any other birther. What do you think this says about the credibility of Mr. Maskell, the Paraclete, and birthers in general?
Slarti and Ballantine:
I just did a new Internet Article on Donofrio’s feeble attempt to discredit the CRS Memo by Jack Maskell over the Kwock Jan Fat case. I call it:
With A Kwock Kwock Here And A Quack Quack There
http://birtherthinktank.wordpress.com/2011/12/03/with-a-kwock-kwock-here-and-there/
According to what I found out about The Geary Act, there was a legal presumption that a person of Chinese descent was Chinese.
Squeeky Fromm
Girl Report
ballantine, I would appreciate your feedback regarding something that has plagued my layman curiosity; is Marbury v. Madison applicable to the comparison of the 14th and A2S1 if it is understood that one reflects the other per born citizens? My question is if 14th born reflects the original natural born then does the addition verbiage of the amendment become superfluous (i.e. born implies within the United States and subject to the jurisdiction which renders the balance of the amendment without specific purpose)?
At one time A2 born could include those born beyond the jurisdiction, but with the acceptance of the WKA understanding of the 14th as a definitive reflection of A2, then such is no longer permissible unless revisited by the court. If WKA is a true reflection of A2, then 14th born has been qualified, perhaps unnecessarily, in light of MvM.
Personally, I’ve believe that the authors’ of the 14th intended one to reflect the other and likely to the degree of synonymous. Though, regardless of their intent it could prevail that they are incapable of being the same due to the MvM decision. I just don’t have the legal competence to figure it out.
The fact that I don’t agree with the WKA opinion has no effect on that said intent if they are not subject to MvM. The court has spoken.
Thanks, I’m looking forward to your response..
A HOUSE DIVIDED
The controversy of NbC is fascinating and illuminating in my humble opinion. One faction unwilling to admit the preponderance of impact of WKA on the reality of born citizenship and the other unmoved on its detrimental and anti-American principles.
On the latter; those that have handily won the ECL-WKA argument fail to answer as to the inherent differences of subjecthood and citizenship and the nature of where the granting of sovereignty should come. It is inarguable the inertia of citizenship understanding our republic had after the revolution, but it is important to recognize the fundamental change that occurred in our new self identity, we were the fount of political power. I think WKA missed an opportunity to establish a truth that set us apart and rather picked the low fruit of what we renounced a century earlier. The notion of perpetual allegiance and expatriation have had adherents on both sides similar to NbC and generally with the same ECL argument. We are a house divided and have been for the life of our republic.
The 14th achieved the goal of citizenship for former slaves, but the unintended consequences are clear. The narrow language of the amendment removed American foreign natural-born citizenship from our lexicon in a single court decision.
Regardless, WKA is precedent. And if affirmed by consensus, Mr. Obama is clearly eligible for his office.
I think an important dynamic that is lost in the conversation is what can be permissible before and after WKA. ballantine has made clear the ECL understanding of birth citizenship, what isn’t matter of fact is the ACL impact of the 1898 landmark case. I’ve come around to the fact that both propositions are true, common law and natural law, with the former granted more significance in the courts.
RvB echoes the WKA Fuller dissent and shows that under present court understanding those born abroad to American parents are not eligible for office. But, the case can be made that those merely born, irrespective of alien or domicile status, are. Oddly, the WKA case stipulated caveats that have been ignored since the decision such as registered aliens that are permanently domiciled. How we got to anchor babies I cannot understand.
Yet, here we are. Birth on our soil, irrespective of the parents nationality, is sufficient for granting of American *ahem* natural-born citizenship per our courts. The overwhelming consensus is that WKA answered the doubts of MvH.
The “birthers” holler for the courts to determine whether parents are important…really the question begs if they are important ENOUGH for those born outside the United States. McCain was ineligible unless he sought leave from the courts if WKA is applicable per the RvB criteria. He didn’t so he wasn’t.
It should be heard for the sole fact that under present court opinion those born of illegals in the United States are eligible where those born abroad to American citizens are ruled otherwise.
I voted, too!!!
Squeeky Fromm
Girl Reporter
Already done Nal. I see we’ve got a 50-39 lead over the Volokh Conspiracy…
Don’t forget to vote, here.
I wrote to Maskell about Kwock; his response:
“I agree that case cite needs clarification to emphasize that Kwock and one witness did aver that his father was born in the United States. It is important, I think, that the Court only mentioned that the parents were permanently “domiciled” in the United States, and thus did not appear to rely on citizenship status, when they accepted the characterization of the Commissioner of Immigration that he was a natural born citizen.”
Are there folks …
Still going at it I see. Are their folks here actually arguing that Leo Donofrio is a more learned source on Constitutional law than Jack Maskell and the many other fine attorneys and assistants who contributed to or reviewed the C. R. S. report? What’s next? Quoting Mr. frivolous appeal himself, Mario Apuzzo?
Portney,
I will gladly admit that Mr. Maskell was not completely clear and correct in this instance as soon as you admit that the other 52+ pages provide irrefutable evidence that President Obama is a natural born citizen. Since you can’t seem to do anything more than nitpick this trivial point, it is clear that neither you (nor Donofrio who you do little more than parrot) can even begin to refute Mr. Maskell’s argument. What kind of petulant child wont acknowledge the validity of an argument that neither he nor anyone else can debunk?
CRS pg48;
“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 ….”221 Similarly, in 1919, the United States Court of Appeals for the 5th Circuit ruled that the appellee, based solely on the fact that he was born in San Francisco, without any reference to the nationality of his parents, “is a natural-born citizen of the United States.”222
221 Kwok Jan Fat v. White, 253 U.S. 454, 457 (1920). The Supreme Court also noted there: “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.” 253 U.S. at 464.
222 U.S. v. Low Hong, 261 F. 73, 74 (5th Cir. 1919).
***An interesting note found in the Low Hong decision which appears to reaffirm those merely born in the US as natural born per WKA; “The averments of the amended petition show that the appellee is a natural-born citizen of the United States.”
CRS;
“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.”
From the case;
“For failure to preserve such a record for the information not less of the Commissioner of Immigration and of the Secretary of Labor than for the courts, the judgment in this case must be reversed. 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.”
This is a poor translation of the decision in light of the facts presented to the court for consideration.
“It is the province of the courts, in proceedings for review, within the limits amply defined in the cases cited, to prevent abuse of this extraordinary power, and this is possible only when a full record is preserved of the essentials on which the executive officers proceed to judgment. For failure to preserve such a record for the information not less of the Commissioner of Immigration and of the Secretary of Labor than for the courts, the judgment in this case must be reversed. 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.”
“For failure to preserve such a record for the information not less of the Commissioner of Immigration and of the Secretary of Labor than for the courts ”
http://supreme.justia.com/us/253/454/case.html
It would appear the CRS memo authored by Maskell does appear disingenuous in this particular instance. The court decision is about positive identity and in the specific instance of Fat, he is a born American citizen, of citizen parents, within the United States. The court comments that if there is to be error it should side with to admittance of those questionable in identity rather than chance of disavowing a NbC. But, in this case it is affirmed that there is sufficient proof of his citizenship.
I agree that one poor reference does NOT bring the entire CRS memo down. Unfortunately, if there is one there may be others.
Mr101:
My GUESS is that he read the “permanently domiciled stuff” along with the fact of The Chinese Exclusion Act and thought that was the best way to describe them.
I would not have said it that way. But, the case is defintiey focusing on the PLACE of Kwock’s birth, sooo I see this a minor bo-bo if even a bo-bo at all.
What is more interesting to me is how Donofrio, Inventor of The Donofrio Shuffle, gets all incensed about this, while ignoring his own bad acts. Plus, like I said above about PERSPECTIVE:
It is important to keep in mind where we are in this discussion. A 53 page memo was written which devastates the two citizen-parent theory. In response, Leo Donofrio picks out one sentence of that memo to try to destroy its credibility. That in itself is a silly enterprise, but entirely predictable. The Birthers have a history of ignoring Reality to maintain their theory. It is not surprising that they would attempt to ignore 52+ pages of well documented legal memo to keep up their delusions.
Squeeky Fromm
Girl Reporter
@Squeeky,
“the Kwock Jan Fat Court didn’t engage in an analysis of the parent’s citizenship’
Then why did the author of the memo engage in that analysis by infering his parent’s status as “Chinese nationals’ to make this point?
“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 ….”
Ballantine
What a coincidence. I just updated my Internet Article to add the Chinese Exclusion Act stuff, and dress it up some, but not the same stuff as from the memo.
“That was an accurate summing up of the case. I would not have phrased it the same way as Maskell, but his statement is far from being deceptive. Unless of course one doesn’t like the natural born citizen language. Maybe this is just proof of what I have said all along. Two citizen-parent Birthers are reading comprehension challenged.
Now, let us deal with Donofrio’s second major error, his analysis of Kwock Jan Fat’s parents’ citizenship status. Donofrio waxes pompously:
Having been born in the US of parents who were citizens, petitioner was indeed a natural-born citizen. But Maskell’s frightening quotation surgery makes it appear as if the petitioner was born of alien parents. The Supreme Court rejected that contention. And Maskell’s ruse highlights the depravity of lies being shoved down the nation’s throat on this issue. I can imagine Mini-Me sitting on his lap while this was being prepared.
Well first, from above, the Kwock Jan Fat Court characterized the parents simply as permanently domiciled in the United States. The Court does not go into any kind of analysis of their citizenship status. Several statements were made by white citizens prior to Kwock’s year long trip to China. None expressly called Kwock’s father a citizen, although they did note he was born in America and registered to vote. No documents were presented, and this would have simply been hearsay evidence. But this was offered simply to prove that Kwock had been born in America, not to prove the citizenship of his father. As a legal matter, no one on the Court knew or cared what citizenship the father adhered to. No evidence was submitted that the Father was either a diplomat or invading soldier. And that is additional evidence that the two citizen-parent stuff is nonsense.
Further, at the time of Kwock Jan Fat case, the Chinese Exclusion Act was in effect. Wiki says:
[skip some stuff]
Between 1882 and 1905, about 10,000 Chinese appealed against negative immigration decisions to federal court, usually via a petition for habeas corpus. In most of these cases, the courts ruled in favor of the petitioner.Except in cases of bias or negligence, these petitions were barred by an act that passed Congress in 1894 and was upheld by the U.S. Supreme Court in U.S. vs Lem Moon Sing (1895). In U.S. vs Ju Toy (1905), the U.S. Supreme Court reaffirmed that the port inspectors and the Secretary of Commerce had final authority on who could be admitted. Ju Toy’s petition was thus barred despite the fact that the district court found that he was an American citizen. The Supreme Court determined that refusing entry at a port does not require due process and is legally equivalent to refusing entry at a land crossing. This ruling triggered a brief boycott of U.S. goods in China.
The Chinese Exclusion Act was repealed by the 1943 Magnuson Act, which permitted Chinese nationals already residing in the country to become naturalized citizens and stop hiding from the threat of deportation. It also allowed a national quota of 105 Chinese immigrants per year. Large scale Chinese immigration did not occur until the passage of the Immigration Act of 1965. Despite the fact that the exclusion act was repealed in 1943, the law in California that Chinese people were not allowed to marry whites was not repealed until 1948.
Even today, although all its constituent sections have long been repealed, Chapter 7 of Title 8 of the United States Code is headed, “Exclusion of Chinese.” It is the only chapter of the 15 chapters in Title 8 (Aliens and Nationality) that is completely focused on a specific nationality or ethnic group.
In 2011, the US Senate passed a resolution apologising for past discriminatory actions such as this act.
http://en.wikipedia.org/wiki/Chinese_Exclusion_Act
The is no evidence that Kwock’s father ever applied for certification for re-entry, something required for Chinese born here even 22 years after Wong Kim Ark. And after reference to the Chinese Exclusion Act above, it was far from certain that Kwock’s father would have automatically been presumed to be a citizen without proof of his birth place, which would default him being deemed a Chinese national a reasonable characterization.
And, another thing that Donofrio misses, is that the dog didn’t bark. Similarly, the Kwock Jan Fat Court didn’t engage in an analysis of the parent’s citizenship. The Court’s characterization is simply that they were permanently domiciled in the United States. And it stopped there. Because the two citizen-parent stuff is just imaginary Birther law. Looking back at the facts, we can engage in that analysis, but that court didn’t. Real courts don’t do imaginary law very well. There was no reason to inquire into their citizenship status anymore than there was to in Wong Kim Ark.
It is important to keep in mind where we are in this discussion. A 53 page memo was written which devastates the two citizen-parent theory. In response, Leo Donofrio picks out one sentence of that memo to try to destroy its credibility. That in itself is a silly enterprise, but entirely predictable. The Birthers have a history of ignoring Reality to maintain their theory. It is not surprising that they would attempt to ignore 52+ pages of well documented legal memo to keep up their delusions.
Squeeky Fromm
Girl Reporter