-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.
You are not following their analysis. To be holding, they say a proposition must be either a necessary or sufficient proposition to the disposition of the case or another supportive proposition to the disposition. Hence, you must find the disposition and work backwards to determine the status of previous legal propositions. Do you see the disposition in Minor? It is that nothing in the Constitution grants anyone the right to vote. There is no dispute that is the disposition and no dispute that the question of citizenship had nothing to do with it or any of its predicate holdings. The fact that it was pleaded is immaterial. They pleaded jurisdiction as well. But unless jurisdiction was the issue put before the Supreme Court by the court below or was relevant to the disposition of the case by the Court, any discussion of jurisdiction would be ducts. As I have pointed out many times, there are many cases that address whether citizens have certain rights that never address the issue of citizenship if such is unnecessary to dispose of the
Ballantine, i think citizenship was more integral then you let on;
“The argument is, that as a woman, born or naturalized in the United States and subject to the jurisdiction thereof, is a citizen of the United States and of the State in which she resides, she has the right of suffrage as one of the privileges and immunities of her citizenship, which the State cannot by its laws or constitution abridge.”
I realize that her citizenship was not challenged, but her pleading was contingent on her citizenship with relation to the new amendment. The court considered it immaterial as to her fount and resultant liberties afforded by the constitution. If I had throw a dart, I’d say it was clearly a necessary proposition if the court desired to take a tact other than the 14th.
Here is Abramowitz and Stearns’ analysis applied to Minor:
Here are 5 legal propositions following by the disposition in (6).
(1) A native born woman of citizen parents is a citizen
(2) There is doubt whether a native born child of aliens is a citizen
(3) The privileges and immunities clause does not grant citizens the right to vote
(4) The due process clause does not grant any person the write to vote
(5) The Republican form of government clause does not grant anyone the right to vote
(6) Nothing in the Constitution grants anyone the right to vote.
(3), (4) and (5) are necessary propositions for if any one is false, the (6) is false. (1) and (2) are not necessary propositions. The Court can make statements (3) – (6) even if (1) and (2) are false. (1) and (2) are not sufficient propositions. (1) and (2) being true does not mean that any of (3) – (6) must be true.
If the Court had ruled that citizenship did grant Minor the right to vote, then (1) would have been a necessary proposition since the Court could not have made such a ruling had Minor not been a citizen.
@portney Over 1200 comments and getting back to whether the juicy “birther” portion of MvH is dicta.
Here is the law review by Abramowitz and Stearns referenced above. It is quite good.
http://digitalcommons.law.umaryland.edu/cgi/viewcontent.cgi?article=1118&context=fac_pubs
In their analysis there are two types of legal propositions: supportive proposition and nonsupportive propositions. The former are presumptively holding, the latter are presumptively dicta. Supportive propositions are either necessary or sufficient. The difference is that a supportive proposition may not be necessary to a second proposition if there is another justification. For example, the proposition that someone is a natural born citizen is sufficient to the proposition that they are a citizen for there are other ways to be a citizen. Thus, Abramowitz and Stearns put forth these formal definitions:
Necessary Proposition: A proposition is necessary to another if the second cannot be true if the first is false.
Sufficient Proposition: A proposition is sufficient to another if the second cannot be false if the first is true.
Supportive Proposition (i.e., a presumptive holding): A proposition that is a necessary proposition or sufficient proposition to the disposition of the case or another supportive proposition of the case.
Non-Supportive Proposition (i.e., presumptive dicta): a proposition that is neither a necessary proposition or a sufficient proposition.
Abramowitz and Stearns apply this analysis to Bakke. they identify the disposition and 9 other propositions and analyze whether eash is Supportive or Non-Supportive or the disposition or another Supportive Proposition.
If the comments are turning to questions of criminality on the part of the President, I’m done. The constitutional question is interesting and has merit in its own right and doesn’t need provocation as to whether Mr. Obama is undeserving due his ideology or mischief.
On that note, I’ve always wondered if the birth certificate pursuance was an acknowledgement that NbC was understood to be a ruse or weak argument. Those that contend the 14th had no influence, outside of granting former slaves their citizenship in light of Dred Scott, are grasping now with MvH. MvH is clear but not conclusive and acknowledged as so by the court. I’m starting to think those who push the BC know this for a fact.
bob,
Birthers are just so completely incompetent that they end up helping the very people they despise…
Ray,
I assume that keeping a law license requires one to pay as well as maintain one’s expertise (although Orly would seem to be a counter-example…)–time and money a person might feel better spent elsewhere. Most members of Congress have legal degrees and I believe you will find very few of them that have law licenses. Suggesting the President Obama is acting suspiciously for behaving similarly to his colleagues and predecessors is a double standard and indicative of Obama Derangement Syndrome.
Birthers are really obots?
bob,
That’s okay, it just means that the birthers are making the right look more extreme…
Once it is determined that President Obama has used forged documents
As there is no competent evidence of that, birthers will continue to be the punchline of the late-night comedians. (Birthers will also continue to troll comment sections of blogs.)
Over 1200 comments and getting back to whether the juicy “birther” portion of MvH is dicta…would folks agree that it is largely immaterial in light of WKA? Perhaps it is more than dicta, but it is inarguable that Waite left the door open that a later court could resolve whether the parents’ nationality was pertinent to the US understanding of NbC.
Portney,
I am pretty much of the mind that at this point this issue does not matter. Once it is determined that President Obama has used forged documents to enter the highest office, when the dust settles, the people of this country will do whatever it takes to insure that it never happens again.
Our economic situation in this country will at some point determine who we allow to be citizens.
Oahu
Ray,
Why would someone who had no intention of practicing law keep their license up-to-date? How many Congressmen have legal degrees and how many of them have law licenses?
Sterngard Friegen,
This just in:
“Orly, you never cease to amaze me! If only every American would be as dedicated to freedom as you are, what a GREAT nation we could be once more.
You now definitely have STANDING as Ms. Lax would be harmed as a candidate on the Dem ticket if any votes were to go to an illegitimate Obama.
Obama is surely going down. Just don’t let him slip off to a country where we cannot extradite him and put him in prison for life. I would love to see him living in Tent City in AZ wearing pink undies and jumpsuit, doing community service the rest of his life ( he loves community service, and could organize all the other prisoners) on one of Sheriff Joe Arpaio’s chain gangs.
I shall continue to pray for your success in all endeavors”.
Florence
Slartibartfast,
Good question and you tell me. My wife went to Georgetown and NYU and fits into one of those groups.
Oh, and she thinks MvH citizenship is dicta. And I don’t know who the heck Florance is.
Peace be upon you.
And there are those whom graduated Harvard and are “smart enough” to “rethink” things and decide it best to give up their law license. ???
Portney’s conversion, while both arduous and satisfying, demonstrates that there is a rigor to legal reasoning that law schools strive to teach.
Generally law schools are successful in teaching people to “think like lawyers” (to quote Prof. Kingsfield). Sometimes not. And sometimes people become lawyers without bothering to go to a real la school. Leo Donofrio and Mario Apuzzo are examples of law school failures. Orly Taitz is an example of someone who became a lawyer without bothering to learn anything about the law, or to think.
“I think Gray missed an opportunity to provide a better check on who is entitled to citizenship.”
Was it Gray’s job to provide a better check on citizenship? I guess that depends upon what one thinks the role of the Court is. Gray was seen as an historian who looked to historical understanding for interpretation. This is obviously not the sole approach. His philosophy seems similar to Scalia as they both discounted legislative history but rather looked to the historical understanding of terms at the relevant time. Hence, both put emphasis on the English common law and early American authorities when looking at the original Constitution. Such logic dictates interpretation the 14th amendment by what “citizenship,” “allegiance” and “jurisdiction” were understood to mean in 1866, as Gray attempts to do.
That being said, personally, I don’t necessarily agree with this approach as the world is very different today than it was in 1787 or 1866. They didn’t have illegal aliens or vacation babies back then and they never gave such topics any thought. Should we be bound by the limited common law exceptions to the jus soli rule that the framers recognized, or should the Court update them to account for the modern world? Many conservative scholars would call such updating judicial activism. But is it really? This is what scholars argue about and there are no easy answers.
ballantine, I appreciate the additional info but it should be noted that the WKA perspective of NbC is not the only one (i.e. the Mexican version which incorporates the nationality of the father). I think Gray missed an opportunity to provide a better check on who is entitled to citizenship. In fact, due the evident discord I’m not alone in that opinion. I think it sad, though, that many have followed the path I was on and confused their abhorrence of the impact on presidential eligibility with the decision itself. Truly a wasted effort of shock and disbelief that could have been better spent rectifying rather than making tinfoil hats.
@Portney I don’t believe PA Madison makes a convincing argument, or any one for that matter, that states WKA is not settled law for born citizenship and hence NbC. Having disagreement with the decision per “subject to the jurisdiction” does not invalidate the court opinion. Maybe I’m wrong, but I don’t think so.
Madison’s arguments here are not original. He is regurgitating much of fuller’s dissent and later works by people like Schuck, Smith and Eastman. Their case is simply not supported by history. Their case is mostly based upon cherry picking a few ambiguous quotes from the 39th Congress out of context while ignoring 99% of the legislative history that supports birthright citizenship. For example, saying Howard referred to “national law, or rather of natural law” rather than the common law. Rather Howard was one of 9 people in such Congress arguing that jus soli was the universal rule.
“They became such in virtue of national law, or rather of natural law which recognizes persons born within the jurisdiction of every country as being subjects or citizens of that country.”
Howard also tells us what the pre-existing law was he was claimed to be codifying:
“A citizen of the United States is held by the courts to be a person who was born within the limits of the United States and subject to their laws…”
“Subject to their laws.” “Subject to the jurisdiction.” Gee, “jurisdiction” literally means “legal authority.” Not much mystery here.
Citing Trumbull is pretty silly. He was talking about indians born to tribes that were on land we didn’t control when he talked about complete jurisdicition or “not owing allegiance to anyone else.” Trumbull said all the indians had to do to have their children be born citizens was leave their tribes and make themselves subject to our laws, i.e., put themselves in the same position as children of aliens. Trumbull said one owed allegaince to his place of birth, repeatedly said that children of aliens were citizens and would say the rule of native birth was the common law of all nations. Some statements of Trumbull:
“How is it that every person born in these United States owes allegiance to the Government? Every thing that he is or has, his property and his life, may be taken by the Government of the United States in its defense, or to maintain the honor of the nation. And can it be that our ancestors struggled through a long war and set up this Government, and that the people of our day have struggled through another war, with all its sacrifices and all its desolation, to maintain it, and at last that we have got a Government which is all-powerful to command the obedience of the citizen, but has no power to afford him protection?” Senator Trumbull, William Horatio Barnes, History of the Thirty-ninth Congress of the United States, pg. 255 (1868)
“birth entitles a person to citizenship, that every free-born person in this land is, by virtue of being born here, a citizen of the United States.” Senator Trumbull, Cong. Globe, 39th Cong. 1st session. 600 (1866)
“And, as is suggested by a Senator-behind me, even the infant child of a foreigner born in this land is a citizen of the United States long before his father.” Senator Trumbull (reply to President Johnsons’s Veto), William Horatio Barnes, History of the Thirty-ninth Congress of the United States, pg. 254 (1868).
“I understand that under the naturalization laws the children who are born here of parents who have not been naturalized are citizens. Is not the child born in this country of German parents a citizen?” Senator Trumbull, CONG. GLOBE, 39th Cong., 1st Sess. 497 (1866).
“I am afraid that we have got very few citizens in some of the counties of good old Pennsylvania if the children born of German parents are not citizens.”‘ Sen. Trumbull, Cong. Globe, 39th Cong. 1st Sess. 498 (1866)
“Undoubably.” Sen. Trumbull, Cong. Globe, 39th Cong. 1st Sess. 498 (1866)(in reply to Sen. Cowen’s question whether [the Civil Rights Act] will not have the effect of naturalizing the children of Chinese and Gypsies born in this country).
“It is competent for Congress to declare, under the Constitution of the United States, who are citizens. If there were any question about it, it would be settled by the passage of a law declaring all persons born in the United States to be citizens thereof. That this bill proposes to do.” Senator Trumbull, Cong. Globe, 1st Sess. 39th Congress, pt. 1, p. 475 (1866).
“whenever they [indians] are separated from their tribes, and come within the jurisdiction of the United States so as to be counted, they are citizens of the United States.” Senator Trumbull, Cong. Globe, 39th Cong., lst Sess. 572 (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)
@majestic The most relevant court case on the the 14A’s citizenship clause was, and still is, Elk, because the question before the court was the extent of the Fourteenth’s “subject to the jurisdiction thereof.”
That is clearly wrong. Elk involved an indian born in an indian nation that later left such nation. the case had nothing to do with children of aliens and says nothing about them. Gray tells us that such indians tribes are quasi foreign nations and he equated persons born to such tribes to alines born in a foreign land:
“Indians born within the territorial limits of the United States, members of and owing immediate allegiance to one of the Indiana tribes (an alien though dependent power), although in a geographical sense born in the United States, are no more “born in the United States and subject to the jurisdiction thereof,” within the meaning of the first section of the Fourteenth Amendment, than the children of subjects of any foreign government born within the domain of that government,”
There is no evidence that the language “but completely subject to their political jurisdiction and owing them direct and immediate allegiance” was meant to exclude aliens as no one said children of aliens were no subject to the political jurisdiction of the US or didn’t owe their direct allegiance to the US. I am not aware of anyone ever using the term “poltical jurisdiction” but suspect he meant the political obligations of a subjection such a being liabile for treason or military duty. I am not aware that anyone ever questioned that native children of aliens owed such obligations. For example, no one questioned the right to draft children of aliens during the Civil War.
I don’t believe PA Madison makes a convincing argument, or any one for that matter, that states WKA is not settled law for born citizenship and hence NbC. Having disagreement with the decision per “subject to the jurisdiction” does not invalidate the court opinion. Maybe I’m wrong, but I don’t think so.
Ray:
Your “P.A. Madison” reminds me of the “Dead Doctors Don’t Lie” person and the Trudeau(???) dude on infomercials selling vitamins and herb books. They spend 90% of their time running down doctors and other straw men and a few more minutes avoiding “proving” their snake oil really works.
Sooo, when you are through listening to them you kinda sorta have the feeling that they have been running you around in circles and not really saying much in any substantive way.
Chief Soaring Eagle didn’t convince me and neither did P.A. Madison, who didn’t say much beyond, “Gee golly that Wong Kim Ark court was sure naughty!” And, just in case somebody convinced you to buy a bunch of supplements. . .
http://www.quackwatch.org/01QuackeryRelatedTopics/DSH/colloidalminerals.html
Portney: Yes, on this issue, there is a goodness and light side.
Squeeky Fromm
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