-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.
“Personally, I believe that Barack Obama Sr. was domiciled in Hawai’i”
Not relevant. WKA doesn’t say one needs domiciled parents. The facts of the case had domiciled parents but Gray’s definition of the 14th Amendment is part of the holding and is much broader:
“The foregoing considerations and authorities irresistibly lead us to these conclusions: 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.”
Includes, not limited to, children of resident aliens. Of course, children of temporary residents were natural born subjects and hence natural born citizens.
Slarti, folks state that the law is obvious with regard to WKA. If so, then the RvB decision should be held equally obvious that the impact of WKA conspicuously prohibited from consideration anyone not born in the United States. The senate had to create a non-binding bill for folks to be fooled that he was actually eligible. Everyone knew he was not a WKA NbC. The fact that it was understood McCain was not eligible per WKA reinforces the argument that the landmark case was pertinent to our understanding of NbC.
Portney,
John McCain didn’t need to seek the court’s opinion to be eligible–in fact the courts cannot give their opinion without having some controversy to rule on. The consensus of most lawyers seems to be that while McCain may not be eligible by the letter of the law, it is unlikely that he would be ruled ineligible by the courts. Combined with the fact that his presumptive opponents (Senators Clinton and Obama) sponsored a Senate resolution basically saying that they weren’t going to raise the issue against him effectively (if not legally) makes him natural born. Where do you get the idea that someone must “seek an opinion” to be eligible?
mrjr101,
You may feel it loses merit, however that doesn’t change the fact that it remains the law of the land.
Consul:
Consul said:
Ballantine,
Please provide us with the case in which women had been determined to be citizens? If you cannot provide such a case, the logical conclusion is that at the time of Minor v Happersett, the citizenship of women is a question that had not been resolved by the Court.
Uh, how about not just a citizen, but a natural born citizen. 1844 Clarke v. Lynch:
It is an indisputable proposition, that by the rule of the common law of England, if applied to these facts, Julia Lynch was a natural born citizen of the United States. And this rule was established and inflexible in the common law, long anterior to the first settlement of the United States, and indeed, before the discovery of America by Columbus.
6. Upon principle, therefore, I can entertain no doubt, but that by the law of the United States, every person born within the dominions and allegiance of the United States, whatever were the situation of his parents, is a natural born citizen. It is surprising that there has been no judicial decision upon this question. None was found by the counsel who argued this cause, and so far as I have been able to ascertain, it never has been expressly decided in any of the courts of the respective states, or of the United States. This circumstance itself, in regard to a point which must have occurred so often in the administration of justice, furnishes a strong inference that there has never been any doubt but that the common law rule was the law of the land. This inference is confirmed, and the position made morally certain, by such legislative, judicial and legal expositions as bear upon the question. Before referring to those, I am bound to say that the general understanding of the legal profession, and the universal impression of the public mind, so far as I have had the opportunity of knowing it, is that birth in this country, does of itself constitute citizenship. Thus when at an election, the inquiry is made whether a person offering to vote is a citizen or an alien, if he answers that he is a native of this country, it is received as conclusive that he is a citizen. No one inquires farther. No one asks whether his parents were citizens or were foreigners. It is enough that he was born here, whatever were the status of his parents. I know that common consent is sometimes only a common error, and that public opinion is not any authority on a point of law. But this is a question which is more important, and more deeply felt, in reference to political rights, than to rights of property. The universality of the public sentiment in this instance, is a part of the historical evidence of the state and progress of the law on the subject. It indicates the strength and depth of the common law principle, and confirms the position that the adoption of the Federal Constitution wrought no change in that principle.
In conclusion, I entertain no doubt but that Julia Lynch was a citizen of the United States when Thomas Lynch died. She therefore inherited the property in controversy, if Thomas Lynch xhad any estate therein, to the entire exclusion of the complainant, who was then an alien, and incapable of taking by descent.
http://nativeborncitizen.wordpress.com/2009/11/09/lynch-v-clarke-ruling/#more-7118
Squeeky Fromm
Girl Reporter
ave you read
Portney,
The Common Law rule incorporated into the NBC clause with the notion that natural born subject=natural born citizen=born citizens in the 14th, inevitably looses its merit when we turn our heads to Americans born abroad or to illegal aliens born within.
Consul, are you tracking perhaps the most fascinating consequence of the WKA decision as later upheld in the 1971 USSC RvB;
That only those born within the United States can be considered NbC. All those born to American citizens in foreign nations, US territories and protectorates are, in fact, naturalized born citizens. The citizenship determination of these naturalized born Americans is beyond the present scope of the 14th and entirely the providence of the constitutional power given to the congress to naturalize. Furthermore, folks like McCain would have to seek the courts judgement to include his birth narrative in light of the impact of WKA. He didn’t seek such opinion and should have never been eligible. Ironically, Mr. Obama was eligible due his native birth by metric of WKA and yet had the most question by “birthers”.
“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 [p168] 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. It is sufficient for everything we have now to consider that all children born of citizen parents within the jurisdiction are themselves citizens.”
“Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their [p168] parents. As to this class there have been doubts,”
I’m not even remotely learned in the law, but it appears straight forward the Waite court recognized a preponderance of belief as to those merely jus soli were considered NbC. His decision (dicta?) did not go there due not having the necessity, but could not help but acknowledge the disparate opinions. Again, it seems reasonable that if a later court ruled that a child born without reference to the citizenship of the parents is, in fact, a born citizen then such should be included in the American NbC narrative. I don’t like it, but it seems settled law.
Consul,
That’s nice. Would you agree that the fact that the court in Wong Kim Ark could have made the same ruling without using the word “domiciled” and the same reasoning would still support it makes the point moot?
“Personally, I believe that Barack Obama Sr. was domiciled in Hawai’i”
Aliens such as those admitted as temporary visitors, students or workers may not lawfully form an intent to remain in the United States because they have visas that require that the holder have “a residence in a foreign country which he has no intention of abandoning.” 8 U.S.C. § 1101(a)(15). This excludes them as lawful “domiciliaries.” See Graham , 998 F.2d at 196; see also Melian v. INS , 987 F.2d 1521, 1525 (11th Cir. 1993)(alien on temporary visitor visa cannot lawfully establish intent to remain since maintenance of foreign domicile required); Brown v. INS , 856 F.2d 728, 731 (5th Cir. 1988)(alien on student visa cannot lawfully establish intent to remain since maintenance of foreign domicile required); Anwo v. INS , 607 F.2d 435, 437 (D.C. Cir. 1979)(same). Likewise, an alien who enters the country illegally cannot have a lawful intent to remain here. Castellon -Contreras , 45 F.3d at 153.
I thought that it might be instructive to formally break down Ballantine’s analysis of Wong Kim Ark and see how it compares to Leo’s interpretation of Minor…
Ballantine said:
This mentions a class (A=”natural born subjects” [presumably defined by the English common law]) as well as two conditions (B=”native born” [presumably defined as jus soli allegiance] and C=”child of aliens” [presumably not jus sanguinis]). Logically this becomes:
(1) If B and C then A
or in set theory:
(1) The set of all persons who satisfy B and C is contained in A
or:
(1) [ B (intersection) C ] (contained in) A
D = “Natural born citizen”–defined by (2) as used in the Constitution
(2) D = A (logically or set-theoretically)
E = “Prior to 1866”–things as defined by pre-1866 law
E** = “post-1866”–things as defined by post-1866 law
F = “born citizens”–self-explanatory
G = “white persons”–used as a control to determine the effects of the 14th amendment
(3) If E and A* and G then F
or
(3) [ E (int) A* (int) G ] (contained in) F
* this isn’t quite A, but the class of people who would hypothetically belong in A (under English common law) which is what is understood to be D
(4) if not B then not D
(5) E and E** are equivalent as applied to G and E** applies identically to not G as it does to G.
H = “citizens under the 14th Amendment”
(6) If A* and [ G U (not G)] then H
C’ = children of domiciled aliens (whatever that means…)
(7) If B and C’ then F
or
(7) [ B (intersection) C’ ] (contained in) F
and it also seems clear that nothing is disturbed in the rationale if C’ is replaced with C in the conclusion.
What do you know–when you take a sound legal analysis and analyze the logic formally, it all makes sense. Who would have thought?
Consul,
So you have now shown your colors to be someone uneducated in law.
“Being that you claim to share the opinion of the overwhelming majority, the only reason for you to maintain your anonymity is to avoid repercussions of the Bar.”
And why do you claim your anonymity? It is not in dispute what the opinion of the overwhelming majority is. Look at CRS report or any legal dictionary or treatise. Do you not own a legal dictionary? We retain our anonymity because Corsi, Orly and other idiot birthers have harrassed people who have challenged them. If you want to know, I work for one of the biggest law firms in the world and clerked for a federal appeals court one level below the Supreme Court. What are your credentials? I suppose reading wingnut sites.
“Minor, even at the state level asserted that the 14th Amendment conferred voting rights upon citizens.”
Making no sense. At the state level, they made such claim, but the court didn’t need to determine if she was a citizen to resolve such claim. You see, when a court determines that citizenship is irrelvant to the right to vote, it does not need to determine citizenship. Hence, the state court never stated whether Minor was a citizen. Another example, in Ex Parte Lockewood, the issue was whether a citizen had the right to be a member of the bar. The Court never said Lockwood was a citizen. Didn’t matter since even if she was, it wouldn’t give her the right to vote. Law school 101.
“It’s no wonder you avoided discussing what sua sponte means.”
Whether the Court addresssed the issue on its own does not mean it is not obiter dicta. What point are you trying to make? Seems you do not know.
“It wasn’t until Obama came along that anyone considered the citizenship portion of Minor to be dicta. Maybe you should read Justice Daniel’s concurrence in Dred Scott to see why the Court was intimately familiar with Vattel.”
Now you are showing your ignorance. No one discussing natural born in Wong Kim Ark suggested Minor was precedent at all and no one has ever suggested it is precedent for the definition of “natural born citizen.” Citing Justice Daniel shows you are not a lawyer as no lawyer would cite Justice Daniel. Daniel cited Vattel on a point unrelated to natrual born citizenship and hence cannot be cited on that point. Daniel said that the writers on public law agreed that a citizen must have equal rights and privileges and cited Vattel on such point, emphasizing the part of Vattel’s writing on such point in the sentence before the NBC statement:
“The citizens are the members of the civil society, bound to this society by certain duties, and subject to its authority; they equally participate in its advantages.”
After citing this passage from Vattel, Daniel concludes:
“From the views here expressed, and they seem to be unexceptionable, it must follow that, with the slave, with one devoid of rights or capacities, civil or political, there could be no pact that one thus situated could be no party to or actor in, the association of those possessing free will, power, discretion.”
Simply, saying Daniel defined “natrual born” by Vattel is dishonest or ignorant as that is not the purpose of the citation. Hard to believe that people don’t understand that one needs to look at the context of a citation to understand its relevance to a case.
Wow, still going.
I believe that all WKA needed to confirm citizenship was the language from “The Exchange” and the language of the 14th. The rest is dicta.
Consul,
You are an idiot. I haven’t called anyone a name that they haven’t earned by their statements. I didn’t say that I didn’t understand domicile, just that I hadn’t found a clear legal definition of the term. Personally, I believe that Barack Obama Sr. was domiciled in Hawai’i (and subject to its jurisdiction) at the time of the president’s birth and I am certain that Dr. Dunham was. However, I doubt that a mother who illegally entered the country immediately before giving birth is considered domiciled in the US, yet her child is still considered a natural born citizen. In order to understand the nuances of the law we need to have accurate definitions of terms–meaning something better that “this definition I found on the internet (which has neither clarity or authority)”. I don’t think you or your fellow birthers even understand how to have a discussion in good faith.
It’s the illogical fallacious arguments of ignorant birthers that deserve nothing but ridicule. I showed how your failure to understand what Ballantine was saying invalidated your point. If I were wrong, then you would be able to demonstrate your understanding of Ballantine’s comments and explain the fallacy in my argument. Your failure to do so argues eloquently that you are unable to show that you understand the analysis Ballantine described and are incapable of finding a flaw in any of my reasoning. That must really suck for you.
Ballantine,
You are a sophist the likes of the Lesser Hippias. You clearly have a limited understanding of our federal courts. You have no idea as to what tools are made available to our federal courts. This is a fact demonstrated by your reliance on English common law.
Being that you claim to share the opinion of the overwhelming majority, the only reason for you to maintain your anonymity is to avoid repercussions of the Bar.
Minor, even at the state level asserted that the 14th Amendment conferred voting rights upon citizens.
It’s no wonder you avoided discussing what sua sponte means.
It wasn’t until Obama came along that anyone considered the citizenship portion of Minor to be dicta. Maybe you should read Justice Daniel’s concurrence in Dred Scott to see why the Court was intimately familiar with Vattel.
Slartibartfast,
You ignorant fuck! You come in here calling people names, yet at this late date you admittedly don’t understand domicile? You deserve nothing but ridicule.
Ballantine,
Can you give us the legal definition of “domiciled”? In order to try to refute the birther “doG of the Gaps”-type argument that Barack Obama Sr. wasn’t domiciled in Hawai’i (like any argument could be made that Dr. Dunham wasn’t…) I’ve tried to find out for myself and the results weren’t very satisfactory (although I did figure out which states I’ve been domiciled in and when…).
Here is my thoughts on how Abramowitz and Stearns’ analysis applies to WKA. Much more complicated than Minor. May need to think about some points some more, but here is how see it initially:
Legal Propositions:
(1) A native born child of aliens is a natural born subject.
(2) “Natural born citizen” in the original Constitution is defined by reference to natural born subject.
(3) Prior to 1866, at least all white persons who would have been natural born subjects were born citizens.
(4) Persons born outside of the United States can only be made citizens by statute.
(5) The first clause in the 14th Amendment was declaratory of pre-1866 law other than to clarify the law was color blind.
(6) Persons who would have been natural born subjects of any color were citizens under the 14the Amendment.
(7) Native born children of aliens domiciled in the US were born citizens.
(7) is the disposition. Notice the Court simply said “citizen” without mentioning the 14th Amendment or type of citizen. Hence, (6) is a “Sufficient Proposition” to (7) as if (6) is true, (7) cannot be false. (6) is not a Necessary Proposition as (7) could be true is (6) was false if WKA was a citizen by something other than the 14th Amendment.
(5) seems to be a “Sufficient Proposition” to (6). It is not necessary, as there may be some other argument why the 14th Amendment is defined by the common law. It is sufficient, for if the Amendment was declaratory of the pre-existing English common law rule, then (6) cannot be false as it simply re-states the pre-existing rule.
(4) is neither a Sufficient or Necessary Proposition and hence is dicta.
(3) seems a Sufficient Proposition to (6) for if the Amendment was declaratory of the pre-existing common law rule, then (6) cannot be false. It arguable is a “Sufficient Proposition” for (7) depending upon what one makes of the “at least all white” language.
(2) should be a Sufficient Proposition to (3) since if “natural born citizen” is defined by reference to “natural born subject” (3) must be true as a natural born citizen is clearly a citizen. Also, it might be a Sufficient Proposition for (7) for if he would be a natural born citizen, he would be a citizen. Remember, Minor siad they did not need to address the 14th since Minor was a citizen under the original Constituion by being natural born.
(1) should a Sufficient Proposition to (7), for given the other holdings, if (1) is true, then (7) must be true.
Seems to me that you can’t get to (7) without each of (1), (2), (3), (5), and (6). Hence, they are all part of the holding. Without the common law being incorporated into the original Constitution, there is no basis in the Court’s opinion as to why the common law defined pre-1866 citizenship and hence would be the basis for the 14th Amendment
Consul said:
This shows that Consul did not understand Ballantine’s previous posts on logic (which were great–thanks Ballantine!).
The Minor court asked (and answered) the questions: “are citizens entitled to vote?” and “is Ms. Minor a citizen?”. Because the answer to the first question was “no”, the answer to the question at bar (“is Ms. Minor entitled to vote?” is “no” regardless of the answer to the latter question. This makes the question of Ms. Minor’s citizenship unnecessary to the ruling and thus dicta. As a result of your inability or unwillingness to understand this point, your question is ill-formed and your conclusion is not at all logical.
“Please provide us with the case in which women had been determined to be citizens? If you cannot provide such a case, the logical conclusion is that at the time of Minor v Happersett, the citizenship of women is a question that had not been resolved by the Court.”
Not relevant to whether the discussion is dicta or holding.
“Have you read the SCOTUS brief of Virginia Minor?”
Defendant conceded citizenship in the initial pleadings. The state did not contested the case at the Missouri Supreme Court or in the US Supreme Court and hence never contested citizenship at any level. The Missouri Supreme Court never mentioned her citizenship and hence such issue was not before the court on appeal. If you have any other evidence, let me know. However, even if such issue was raised, it doesn’t mean it isn’t dicta if unrelated to the disposition of the case as pointed out above.
“Please explain to the rest what Sua Sponte review is, and then explain the difference between obiter dictum and judicial dictum…along with the precedential value of both.”
Now, you are moving the goalposts. The discussion was holding vs. dicta. Judicial dicta is dicta on a subject thoroughly argued and examined by the court. Judicial dicta is not binding but is persausive authority. The dicta in Minor is clearly obiter dictum. First, there is no evidence the issue was ever argued. Second, the court’s analysis was not thorough, but superficial. The Court never told us what was the status of Minor’s parents, we had to infer that. The Court made a few assertions citing no authority at all. It said to look to the common law, but didn’t state the well-known common law rule. It mentioned some unknow persons having some unknown doubts, but it declined to elaborate. This is the poster child of obiter dicta. Compare to Wong Kim Ark’s 22 pages examining the common law rule citing every significant authority in england and the US, as well as the history and basis of the rule. Of course, WKA’s analysis is not dicta and supercedes anything in Minor.
“I am interested in how you arrived at that conclusion. Could you please provide the quote in which you consider Justice Waite to have left the door open?”
Perhaps when it declined to opine on the citizneship status of children of aliens simply noting that some unknown person had some unknown doubts. Didn’t say such doubts had merit. Didn’t say they were talking about a type of citizen other than natural born. Don’t tell me you think calling someone a citizen mean they are not a natural born citizen as the court only calls Virginia Minor a “citizen” and makes clear that there are two types of “citizens,” (i) natural born and (ii) naturalized. Now go read Wong Kim Ark which spend the entire case dealing with the status of children of aliens under the original and Amended Constitution.
“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”
Unfinished thought?
Ballantine,
Please provide us with the case in which women had been determined to be citizens? If you cannot provide such a case, the logical conclusion is that at the time of Minor v Happersett, the citizenship of women is a question that had not been resolved by the Court.
Have you read the SCOTUS brief of Virginia Minor?
Please explain to the rest what Sua Sponte review is, and then explain the difference between obiter dictum and judicial dictum…along with the precedential value of both.
Portney,
I see above that your stated belief is that Justice Waite left the door open for others to be added to the list of natural-born citizens.
I am interested in how you arrived at that conclusion. Could you please provide the quote in which you consider Justice Waite to have left the door open?
Thanks