Courts, Lawyering, Supreme Court

Holdings, Dicta, And Stare Decisis

-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.

1,351 thoughts on “Holdings, <i>Dicta</i>, And <i>Stare Decisis</i>”

  1. ksdb,

    I take it there are multiple aspects of born citizenship to include NbC? Please illustrate the hierarchy and who says. I’ve gone to the dark side and am pretty convinced that WKA established the jus soli foundation of our natural born citizenship understanding. I don’t argue that it was pretty much up in the air prior to 1898.

  2. @Portney:

    1. Is the WKA decision significant to A2 presidential eligibility (does an opinion on who are considered 14th born have an impact on natural born presidential eligibility)?

    The answer is No. This decision EXCLUDED natural-born citizens from the birth clause of the 14th amendment.

    2. The controversy ends with Justice Gray until another court decision on the matter or an amendment comes along that specifies otherwise.

    The controversy ended when Gray used Minor’s definition of NBC. Gray excluded NBCs from the 14th amendment. He affirmed the Minor definition of NBC by quoting and affirming a holding that was based on someone having citizen parents. If Gray was making a conclusion that all birth citizenship was only by virtue of jus soli only, he wouldn’t have included this criteria. He was bound to do because this WAS part of the holding and part of the court’s definition of NBC …. and bcaused it was a unanimous decision he could not justifiably override.

    3. 3. Reality for those that wish to deal with it regards not the acceptance of dual citizenship presidents but who is NOT eligible in light of the WKA opinion and the language of the 14th (WKA Fuller dissent and RvB).

    Fuller’s lament on NBC in the dissent wasn’t based on anything stated in the majority. Even if was, speculation in a dissenting opinion does not form the basis for establishing a legal precedent. Either there’s a tangible precedent stated in the majority opinion or there’s not. There’s certainly nothing in RvB that undermines the Minor definition of NBC.

    The legal precedence in WKA precludes Obama from being either a natural-born citizen OR a 14th amendment citizen. … and that’s IF he could legally prove he was born in Hawaii. To date, he has not. These are the undeniable facts. The only way to arrive at any other conclusion is by connecting dots that were never connected by the Supreme Court.

  3. President Obama was a natural born citizen at the time of his birth in Hawaii.

    I would like to thank everyone (especially ballantine) for sharing their thoughts on what constitutes natural born citizenship. It is important to note where the differences are considerable;

    1. Is the WKA decision significant to A2 presidential eligibility (does an opinion on who are considered 14th born have an impact on natural born presidential eligibility)? Yes. The first time a declaratory portion of our constitution states what constitutes a citizen results in affirmation of jus soli natural born citizenship by our highest court 30 years afterward. If you believe that there is a another kind of born citizen that is not natural born, I will listen patiently for that problematic truth. As of 1898, all those born, regardless of the nationality of the parents, in the United States and subject to the jurisdiction are inarguably natural born citizens. Additionally the 14th provides those that are born outside the United States to Americans, or foreigners that come to our country seeking our citizenship, are naturalized. Ask yourselves what naturalization means and you will come to the answer of what a born citizen actually means. It should be fully apparent that those naturalized are, through the criteria and processes established by statute, granted the same responsibilities and privileges of citizenship as those natural born, save one.

    “BIRTHER” BURDEN OF PROOF: THERE IS ANOTHER KIND OF BORN CITIZEN OTHER THAN NATURAL BORN IN OUR UNITED STATES CITIZENSHIP UNDERSTANDING.

    The MvH doubts were answered. The “birthers” are absolutely right that many influences and perspectives are part of the historical national dialogue as to what constitutes natural born citizenship. The 1875 court recognized such and shied away from the 14th in thankfully not having necessity to either conclude what it fully entailed or having to bother with the question of alien parents. The court rightfully acknowledged that which was without doubt and left the door open for a later court to settle that which there still was.

    2. Whatever your personal opinion may be is trumped by the Wong Kim Ark decision. The controversy ends with Justice Gray until another court decision on the matter or an amendment comes along that specifies otherwise. There are plenty of folk that in their dislike of Justice Gray’s opinion insist that the court did not weigh in on NbC per se. I think this is splitting hairs and ignores both MvH and WKA reflecting on the two understood aspects of our citizenship found both in the original and the later 14th, born and naturalized. MvH may be more than dicta and an important inarguable definition of NbC, but it did not affirm if this nation was or was not a purely jus soli natural born Republic. Turns out, by later court opinion, we were.

    THE RUB FOR “BIRTHERS” IS THAT OUR CONGRESS (STATUTE) IS NOT IN AGREEMENT WITH THE COURTS. A CITIZEN WHO STATUTORILY NATURALIZED, AS AN ADULT, RENOUNCED AND ABJURED THEIR FORMER ALLEGIANCE TO A FOREIGN POWER WHEREAS THOSE BORN IN THE UNITED STATES WITH COURT RECOGNIZED DUAL HAVE NO SUCH REQUIREMENT. THIS IS AN ENTIRELY SEPARATE CONUNDRUM THAN WHAT CONSTITUTES NATURAL BORN CITIZENSHIP.

    3. Reality for those that wish to deal with it regards not the acceptance of dual citizenship presidents but who is NOT eligible in light of the WKA opinion and the language of the 14th (WKA Fuller dissent and RvB). Unfortunately, the present crisis is that naturalized foreign born children of American citizens are not eligible for the presidency whereas those natural born in the United States of illegal aliens are. This will not be rectified unless someone like McCain seeks the court’s judgment. I hope that it is understood that the congress, with the power to naturalize, governs who born abroad are citizens at birth.

    The following quotes from a 1904 lawyer’s legal reference helped me wrap my mind around what we affirmed, all admitted and documented controversy aside, as a nation of our “born” understanding in light of various states and countries obeying other natural born criteria. We chose to recognize and obey that which was affirmed in 1898. You don’t have to agree with it for this simple fact to be true. That was my intellectual challenge. I think I’m done.

    CITIZENSHIP OF THE UNITED STATES
    BY FREDERICK VAN DYNE, LL. M.,
    Assistant Solicitor of the Department of State of the United States.

    THE LAWYERS’ CO-OPERATIVE PUBLISHING CO.
    ROCHESTER, NEW YORK, 1904

    PREFACE

    Within the past five years the question whether, under our law, children born in the United States to alien parents are citizens of the United States, — a question productive of much discussion, and on which, at an earlier period, considerable difference of opinion existed, — has been authoritatively settled by a decision of the Supreme Court of the United States. United States v. Wong Kim Ark, 169 U. S. 649

    Pg 43-44

    The children (born in Mexico) of Henry S. Schreck, a naturalized citizen of the United States, claimed before the United States and Mexican claims commission, convention of 1868 (15 Stat, at L. 679), as his heirs, damages from Mexico for the seizure and sale in that country of certain goods belonging to the estate of their father. The umpire decided: “As children of a naturalized citizen of the United States, they may be considered to be citizens of the United States in the United States and in every other country except the country of their birth; but the fact of their being born in Mexico gives to the government of that country the right to claim them in Mexico as citizens of that Republic. The umpire is, therefore, of opinion that, as against Mexico, the heirs of Henry S. Schreck, being born in that Republic, have no standing before the mixed commission, and cannot claim, as citizens of the United States, against the government of their birth.” Upon motion for rehearing, however, Mr. Ashton, agent and counsel of the United States, showed that by the Mexican law persons born in Mexico are not natural-born Mexicans unless their fathers before them were Mexicans; that the heirs of Schreck, therefore, not being claimed by the municipal law of Mexico as Mexican citizens, must be deemed to possess in that country the national character attributed to them by the law of the United States. The umpire adopted this view, and made an award in favor of the heirs of Schreck. Moore, International Arbitrations, 2450-2453.

  5. @Carrol You can continue to ignore the stipulated facts of the case, and the repeated inclusion of “domicile” contained in the Court’s opinion, all you want. That doesn’t change the fact that it was part of the Court’s holding.

    You clearly are not a lawyer. The stipulated facts and the reference to “domicile” may be relevant to the holding but that does not mean they are part of the ratio decidendi of the case which is the real precedent. I know this is way over your head.

    @Carrol I have read the case. Nowhere in the case does it say “There are only two types of citizens, natural born and naturalized”. That is something you made up. The Court also DOES NOT say “that natural born and a citizen by birth under the 14th Amendment mean the same thing”.

    Well, perhaps you need to take a class in reading case law as you clearly can’t understand what the Court says. You point to Binney’s quote but don’t understand that Binney said there were two types of citizens, natural born and naturalized. If you can’t understand that the Court defined “natural born” and the 14th Amendment by the same definition, well, you should not be posting on this subject.

    The Court’s definiiton of NBC:

    “all persons born in the allegiance of the United States are natural-born citizens”

    This definition is analogous to the British rule:

    “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.”

    The Court, of course, tells us what “Born in the allegiance” means.” In England:

    “The fundamental principle of the common law with regard to English nationality was birth within the allegiance, also called “ligealty,” “obedience,” “faith,” or “power” of the King. The principle embraced all persons born within the King’s allegiance and subject to his protection. Such allegiance and protection were mutual — as expressed in the maxim protectio trahit subjectionem, et subjectio protectionem — and were not restricted to natural-born subjects and naturalized subjects, or to those who had taken an oath of allegiance, but were predicable of aliens in amity so long as they were within the kingdom. Children, born in England, of such aliens were therefore natural-born subjects.”

    In the US:

    “and allegiance by birth is that which arises from being born within the dominions and under the protection of a particular sovereign. Two things usually concur to create citizenship: first, birth locally within the dominions of the sovereign, and secondly, birth within the protection and obedience, or, in other words, within the allegiance of the sovereign.”

    Of course, the Court goes on to define the 14th Amendment by the same rule:

    “the Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes.

    Unless you are an idiot, you would understand that these are all the same definition. Hence, the Court’s conculsion that the Amendment was simply declaratory of the law under the original Constitutution. I am pretty sure a child could understand this. Honestly, why do people with no understnading of law pretent to be experts on the internet?

    I suggest you go back and read WKA. I suggest you read where it says that “natural born citizenship” should be deinfed by the English common law, how the English common law definition prevailed under our Constitutiton and how “natural born subject” and “natural born citizen” meant the same thing. I then suggest you think about what the court meant by saying such Amenment was declaratory and affirmative of exisitng law under the original Constitution. It really isn’t that hard if one is not a committed birther.

  6. Ed,

    So you are claiming that by pointing out that someone was either intentionally dishonest or didn’t know what they were talking about I was being impolite? That we should let falsehood pass unchallenged and let ignorance fester unabated? Sorry, I don’t feel that way, but you sound very much like a typical birther. Was Carol correct to claim that a naturalized citizen is as much a citizen as a natural born child of citizens”? No, she wasn’t–the two are different in that only one is eligible for POTUS. Ergo either she knew she was incorrect–meaning she intentionally lied–or she didn’t–meaning that she was commenting about something she was ignorant* about. I suppose that it is also possible that she does not understand the concept of equality, but it’s hard for me to believe someone can fail to understand something so basic. How is pointing out an obvious error and using reason regarding its cause not civil? It may be impolite to suggest that someone is lying, but not nearly as impolite as lying (and doing so blatantly) in the first place. Or do you believe that people should be protected from the consequences of their falsehoods?

    * There’s nothing wrong with being ignorant, but anyone who has been a birther for any length of time is willfully ignorant, which is another matter altogether…

    p.s. I would hope that anyone considering an association with me would consider my actual words and give a pathetic strawman constructed by an anonymous birther troll all of the credence it deserves.

  7. @ Carol:

    Can you name a case that reads Wong Kim Ark in the manner in which you do, i.e., with the inclusion of “domicile”? Any law review article or other such peer-reviewed scholarly writing?

  8. Ballantine,

    You can continue to ignore the stipulated facts of the case, and the repeated inclusion of “domicile” contained in the Court’s opinion, all you want. That doesn’t change the fact that it was part of the Court’s holding.

    I have read the case. Nowhere in the case does it say “There are only two types of citizens, natural born and naturalized”. That is something you made up. The Court also DOES NOT say “that natural born and a citizen by birth under the 14th Amendment mean the same thing”.

    If the truth is on your side, why make up what the Court said instead of quoting the Court? Could it be that the actual quote of the Court doesn’t comply with your conclusions?

  9. @Carol The domicile of the child is that of the father. The domicile of the wife is that of her husband. What was the permanent domicile of Obama II’s father? What was the permanent domicile of Wong Kim Ark’s parents at the time of his birth?

    Sigh, again no court has ever said domicile was a requirement. WKA does not say that. The rule includes, is not limited, to comiciled aliens.

    @Carol Wong Kim Ark was determined to be a citizen of the United States due to his birth within the territory of the United States, to parents who were permanently domiciled here. He was not a member of some subset of citizens. He was as much a citizen as the natural born child of a citizen. Just as a naturalized citizen is as much a citizen as the natural-born child of a citizen.

    Time you actually read the case. There are only two types of citizens, natural born and naturalized. The court says that natural born and a citizen by birth under the 14th Amendment mean the same thing. If one is a citizen by birth under the 14th, one is natural born as again they are both defined by reference to natural born subject. Binney’s language you are referring to has been explained over and over on this thread. Binney clearly defined what natural born meant in accordance with English law. He was not saying children of aliens were a different kind of citizen, but the same type. Amatuer hour continues.

  10. “Please don’t misunderstand me, I’ve just shown that you are either ignorant or a liar–which is it?”

    Is that how Kevin Kesseler of Bespoke Modeling, Roscommon, Michigan has learned to address those with whom he disagrees?

    Above, the readers will see that Kevin adopts a position in which his civility is not subject to blog rules, but instead, based on agreeing with his position.

    This person should be considered to be very dangerous to any research.efforts.

  11. Carol,

    A naturalized child is not as much a citizen as a natural born one–a naturalized child cannot run for POTUS (that’s what we call a “difference”). Furthermore, the opposition in Wong Kim Ark argued that if the lower court’s ruling were upheld, Mr. Wong would be eligible for the presidency. The SCOTUS agreed and upheld the ruling.

    Please don’t misunderstand me, I’ve just shown that you are either ignorant or a liar–which is it?

    Hypothetical: A person graduates high school and goes out-of-state to college. For their first year they live in a dorm and pay out-of-state tuition and return to their parent’s house for the summer. Their sophomore year they get a place off campus to establish residency–they still go home for the summer, but they keep the dwelling and at the beginning of their Junior year they start paying in-state tuition. They live there continuously until graduation at which time they move back in with their parents (not a good job market…) until they eventually get a job in another state and move to their own place there.

    Where was this person domiciled, when, and why? If your definition of “domiciled” cannot parse this hypothetical, then I assert that it cannot be the accurate legal one (which must routinely parse much more complicated hypotheticals). I admit that I don’t know the answer myself (although I suspect that any of the learned lawyers reading this could answer quite easily if they wished), but I’m not proposing a non-standard interpretation of the term “domiciled”…

  12. @Sterngard Friegen

    The domicile of the child is that of the father. The domicile of the wife is that of her husband.

    What was the permanent domicile of Obama II’s father? What was the permanent domicile of Wong Kim Ark’s parents at the time of his birth?

    Please don’t misunderstand me. I am not of the opinion that Wong Kim Ark was a natural-born citizen. Wong Kim Ark was determined to be a citizen of the United States due to his birth within the territory of the United States, to parents who were permanently domiciled here. He was not a member of some subset of citizens. He was as much a citizen as the natural born child of a citizen. Just as a naturalized citizen is as much a citizen as the natural-born child of a citizen.

  13. President Obama has a stronger claim to natural born Citizen status than did Wong Kim Ark under birther rationale. Mr. Obama’s mother was a citizen when he was born. Neither of Mr., Wong’s parents was.

    In response to this the birthers generally mount a gutter attack on Mrs. Obama’s reputation.

    It’s hard for the birthers to keep their animosity for the politics of the current POTUS out of their conversation relating to eligibility. Indeed, they contend President Obama’s politics is an additional reason why he should be disqualified.

  14. @mrjr101 Ballantine, are you saing that Justice Marshall delivered this opinion in dicta? What do you mean by generic statement?

    The holding of Marbury was that the Court did not have the authority to issue a writ of mandamous since the Judiciary Act was unconstitutional. What you are referring to is a basic canon of statutory construction. There are many such canons. These canon are interpretive tools used to help understand the intent of the legislature or Convention. For example, when something is omitted it is presumed that it omitted on purposes. When something is included, it is presumed it included for a purpose. These canons often conflict with each other. It is often said that for every canon that leads to some conclusion, there is another canon that leads to the opposite conclusion. In addition, the canons may say the opposite of the clear legislative history. The use of one canon in one case does not mean it is precedent that such canon must be used in any future case. At the same time, a case that ignores the canons and looks solely to the legislative history is not precedent that one must always look to the legislative history. Again, these are all just interpretive tools.

    “Isn’t this statement precedent on the effect of the clauses regardless of the 14th?”

    Such clause is not binding precedent at all. At most it is precedent that such canon can be used. What I don’t understand what such has to do with the NBC clause or the 14th Amendment. Exactly what provision is not supposed to have effect under WKA’s interpretation? It says the NBC cause meant one thing. He said the 14th Amendment reaffrimed the same rule after Dred Scott mischaractorized this. The purpose and effect of the 14th thus being to re-affirm the original meaning by abrogating a bad court decision. Since they mean the same thing, one does not have to say the 14th controls Presidential eligiblity, rather it restates the same rule in the NBC clause. Of course, since Dred Scott said blacks could not be natural born citizens, one has to ask how blacks can be President if the 14th did not affect the NBC clause in some way.

  15. “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”

    “No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.”

    Comparing the semantic values of the two is interesting. It is inarguable that the 14th is intentionally declaratory of that which is stated in the original constitution, but can they mean the same per MvM? I think so. It is not unreasonable for those born in the United States and subject to the jurisdiction to be considered natural born citizens. In fact, if anything, the problem that most folks have with WKA is the poor understanding of the jurisdiction clause.

    Natural born citizens are citizens. Not all citizens are natural born citizens. The 14th does not make the A2 natural born without meaning for it never semantically or logically purports to do so. The WKA had leeway which they fully took to illustrate that ECL natural born is relevant to born citizenship.

  16. “First, that is not the holding of Marbury, just a generic statement that obviously does not over-ride the clear intent, history and specific interpretation of the clause. Law school 101.”

    Ballantine, are you saing that Justice Marshall delivered this opinion in dicta? What do you mean by generic statement?

    “It cannot be presumed that any clause in the constitution is intended to be without effect; and therefore such construction is inadmissible, unless the words require it.”

    Isn’t this statement precedent on the effect of the clauses regardless of the 14th?

  17. “Good grief. Will amatuer hour never end. Donofrio’s post is utter gibberish, something one would expect from a pro se litigant. First, that is not the holding of Marbury, just a generic statement that obviously does not over-ride the clear intent, history and specific interpretation of the clause. Law school 101. I suppose someone should tell the members of the 39th Congress that their Amendment would be without effect.”

    ballantine, It is my understanding that that constitution and jurist opinion can be of divergent truths. This situation is similar to the “birther” originalism argument that Vattel and natural law is premise of NbC meaning, maybe it was but the courts really decided the meaning in MvH and WKA. In that vein, the humble question was whether MvM had any relation to the language of the two references to born citizenship. I’m suggesting that perhaps the 14th as interpreted by WKA put the two references at odds in light of the language used in both.

    “It cannot be presumed that any clause in the Constitution is intended to be without effect, and therefore such construction is inadmissible unless the words require it. [p175]”

    I agree that this is minor point, I was just curious as to your learned perspective. It wasn’t meant to annoy.

    MvM;

    “If it had been intended to leave it in the discretion of the Legislature to apportion the judicial power between the Supreme and inferior courts according to the will of that body, it would certainly have been useless to have proceeded further than to have defined the judicial power and the tribunals in which it should be vested. The subsequent part of the section is mere surplusage — is entirely without meaning — if such is to be the construction. If Congress remains at liberty to give this court appellate jurisdiction where the Constitution has declared their jurisdiction shall be original, and original jurisdiction where the Constitution has declared it shall be appellate, the distribution of jurisdiction made in the Constitution, is form without substance.

    Affirmative words are often, in their operation, negative of other objects than those affirmed, and, in this case, a negative or exclusive sense must be given to them or they have no operation at all.

    It cannot be presumed that any clause in the Constitution is intended to be without effect, and therefore such construction is inadmissible unless the words require it. [p175]

    If the solicitude of the Convention respecting our peace with foreign powers induced a provision that the Supreme Court should take original jurisdiction in cases which might be supposed to affect them, yet the clause would have proceeded no further than to provide for such cases if no further restriction on the powers of Congress had been intended. That they should have appellate jurisdiction in all other cases, with such exceptions as Congress might make, is no restriction unless the words be deemed exclusive of original jurisdiction.”

    http://www.law.cornell.edu/supct/html/historics/USSC_CR_0005_0137_ZO.html

  18. “I think Portney must be referring to the SCOTUS holding “It cannot be presumed that any clause in the constitution is intended to be without effect; and therefore such construction is inadmissible, unless the words require it.”

    The argument is that the construction of citizens in the 14th A cannot have the same effect as the construction of NBC in A2S1C5(cannot say the same thing), such construction would be ‘inadmissible’ per SCOTUS.”

    Good grief. Will amatuer hour never end. Donofrio’s post is utter gibberish, something one would expect from a pro se litigant. First, that is not the holding of Marbury, just a generic statement that obviously does not over-ride the clear intent, history and specific interpretation of the clause. Law school 101. I suppose someone should tell the members of the 39th Congress that their Amendment would be without effect. I guess over-ruling Dred Scott and clarifying that the law was color blind meant nothing. I guess they were lying when they said such was their purpose. I guess the Supreme Court was deluded when it said the Amendment had the same effect. If only there was a poker player/lawyer around to tell them their law had no effect. Why do you people think he knows what he is talking about. Why not look at how actual courts have treated his nonsense:

    “As to the merits of Appellants’ claims, they are utterly frivolous. We reject these claims on the merits for substantially the same reasons set forth by the district court below.”

  19. “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.”

    I think Portney must be referring to the SCOTUS holding “It cannot be presumed that any clause in the constitution is intended to be without effect; and therefore such construction is inadmissible, unless the words require it.”

    The argument is that the construction of citizens in the 14th A cannot have the same effect as the construction of NBC in A2S1C5(cannot say the same thing), such construction would be ‘inadmissible’ per SCOTUS.

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