-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.
Thanks Ballantine.
Consul,
If I say that a turkey sandwich is as much a sandwich as a ham sandwich, I clearly mean that they share the characteristics which make them sandwiches–not that they are identical. In other words, I would assume that they both consisted of the named meat (and potentially other items) between two slices of bread (although one or both could be an open-faced sandwich…). You’re trying to say that there are things that are as much a sandwich as a ham sandwich even though they don’t, for instance, involve slices of bread. In other words, you want to pretend that two classes which are equivalent to each other as far as citizenship goes nonetheless differ regarding an aspect of citizenship. Are you being intentionally dishonest or willfully ignorant or are you just not smart enough to understand how blatantly obvious your error is?
Portney,
Forgive me if I am reading something into your recent comments that was not intended. That is not my intent.
I am left to wonder what portion of the Court’s opinion in WKA leads you to believe that 14th Amendment citizenship is the same as natural-born citizenship. Please make sure to only rely on the Court’s opinion as stated, and not their acknowledgement of what was stated by someone else.
Having a pretty good idea of how you arrived at your conclusion, I would like to ask;
If I said that a turkey sandwich was as much a sandwich as a ham sandwich, would you be left to conclude that a turkey sandwich and a ham sandwich are the same thing? (I’m not trying to be snarky. I’m just trying to understand how one became the other.)
I’m a layman, of course I’m speculating. If I were you, I’m not sure what you’d call it, but it would be something other than speculating, I’m sure. I get your point being inferring on what the justice meant unless he specified either with specificity or precedence. It wasn’t or isn’t a deep point, but one of curiosity that has history in our government and courts. Vattel is part of our understanding, how significant is another matter entirely.
Ballantine, do you currently practice law or are you retired? What kind of law did or do? What favorite part of the law is it that drives your curiosity and interest?
Slartibartfast,
I think the writers on public law argued about the definition of domicile. Here is Justice Story in his Commentaries on the Conflicts of Law which is probably as good as source one can get in the early republic:
“Vattel has defined domicil to be a fixed residence in any place with an intention of always staying there.* But this is not an accurate statement. It would be more correct to say, that that place is properly the domicil of a person, in which his habitation is fixed, without any present intention of removing therefrom. Two things, then, must concur to constitute domicil; first, residence; and secondly, intention of making it the home of the party. There must be the fact, and the intent; for, as Pothier has truly observed, a person cannot establish a domicil in a place, except it be animo et facto.”
ballantine
1, December 10, 2011 at 8:24 am
I agree with you regarding WKA’s requirement of domiciled parents (and said that is what the formal logic indicated above), but in light of comments like the below, I would suggest that the definition of “domiciled” IS relevant to debunking birthers. If we were going to ignore things that birthers fixate on just because they are stupid and irrelevant then we would be forced to ignore the birthers completely.
Consul
1, December 10, 2011 at 8:53 am
“If you say that Waite was referring to NBC’s in that quote then have you think about why Justice Waite said that some “authorities go further”? How can some authorities go further in the Constitution?. How can you go further in the United States to include some people who can become Presidents and some people who cannot when referring to the same class of citizens? Regardless of what anyone thinks, the open question that Waite left open was who else can be Citizens of the US without reference to their parents in the language of the Constitution. Wether those people are later deemed NBC’s or not it was not relevant to the doubts in Minor.”
He means authorities interpreting the Constitution. Some authorities interpret different that other people. Seems pretty clear. And authorities can disagree on interpreting “natural born” like Justice Gray and Fuller did.
Again it is simply dishonest to say the doubts related to some other form of citizenship because Waite does not say that. This whoe part of the opinion was on the original Constitution where Waite tells us there are only two kinds of citizens, natural born and naturalized. Unless Waite tells us which one is he talking about, it is unethical to say he is. Of course, anyone who knows history knows it can’t be naturalzied citizen as a native born person could not be naturalized by definition and, of course, there had never been a naturalization statute prior to such time making a native child of aliens a citizen at birth
“Justice Waite is talking about NbCs. Look, being difficult is something I excel, you needn’t insinuate your personal hopes and fears into the opinion. Unfortunately, it is quite clear that the discussion starts with that which is undoubted regarding NbC and concludes with his admittance as to what is still unresolved.”
Portney, Justice Waite starts the discussion with what was always thought to be without any doubts who are the citizens in our society per our original constitution and concludes with his admittance as to what was still unresolved (the class that did not include parents). Thats the unbiased way of interpreting this quote.
If you say that Waite was referring to NBC’s in that quote then have you think about why Justice Waite said that some “authorities go further”? How can some authorities go further in the Constitution? How can you go further in the United States to include some people who can become Presidents and some people who cannot when referring to the same class of citizens? Regardless of what anyone thinks, the open question that Waite left open was who else can be Citizens of the US without reference to their parents in the language of the Constitution. Wether those people are later deemed NBC’s or not it was not relevant to the doubts in Minor.
“MvH, if it did establish any precedence for the meaning, expired nearly a quarter of a century later by the answering of certain doubts by Justice Gray.”
And how dumb were the government and Chief Justice Fuller who both argued for the Vattel definition and, of course, didn’t claim that Minor was precedent or that Minor had endorsed Vattel’s definition. If only birthers were around to set them straight.
“Sure, it’s not a quote…but it does echo.”
Again, you are merely speculating. You can only cite Waite to the extent he actually said something. Is it not true that there was no doubt about native children of citizens under the English common law? Is not Waite’s statement completely consistent with that.? The fact that someone had doubts about children of aliens under the common law doesn’t mean they were talking about the law of nations rather than the common law or some common law other than the English common law. Such again is rank speculation. When a court says it is not examining an issue, it means the court did no examine the issue and we should not be citing it as authority.
“If he would have said that some authorities go further and include as natural-born citizens, I think I would understand your reading. As written, it is clear that the “some authorities” who went further only included them “as citizens”.
Nonsense. Again, if Waite said they were talking about another type of citizen, one can say he was talking about another type of citizen. Waite doesn’t say what type of citizen and trying to claim he did is dishonest. Again, he only called Virginia Minor a “citizen.” That does not mean she was not also a “natural born citizen.’ From Minor:
“It is sufficient for everything we have now to consider that all children born of citizen parents within the jurisdiction are themselves citizens.”
Is that not your definition of “natural born?” Calling someone a citizen does not mean they are not natural born. Waite tells us “citizen” means either “natural born citizen” or “naturalized citizen.”
“Additions might always be made to the citizenship of the United States in two ways: first, by birth, and second, by naturalization. This is apparent from the Constitution itself, for it provides that “no person except a natural-born citizen, or a citizen of the United States at the time of the adoption of the Constitution, shall be eligible to the office of President,” and that Congress shall have power “to establish a uniform rule of naturalization.”
Consul,
Prepare yourself for absolute crazy talk.
Imagine, if you will, the possibility that A2 NbC meant exactly what Waite considered doubtless in the vein of Vattel in 1787 and then CHANGED in 1898.
You don’t have to imagine, it is likely what occurred or so I believe. And if indeed Vattel was never in the scope of possibility when the constitution was written, doesn’t matter. MvH, if it did establish any precedence for the meaning, expired nearly a quarter of a century later by the answering of certain doubts by Justice Gray.
Sucks, but there it is. Unfortunately, it is settled law until another amendment or revisited by the court.
“The natives, or indigenes, are those born in the country, of parents who are citizens.” – Vattel (1759)
“The natives, or natural born citizens, are those born in the country, of parents who are citizens.” – Vattel (1797)
“[I]t 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,” – Waite (1875)
Sure, it’s not a quote…but it does echo.
The Europeans have a long history of recognizing fathers as important consideration for the child’s citizenship (i.e. Jean Bodin). All of which is immaterial due to WKA recognition of mere jus soli for our American understanding of NbC.
Portney,
“Some authorities go further and include as citizens”
If he would have said that some authorities go further and include as natural-born citizens, I think I would understand your reading. As written, it is clear that the “some authorities” who went further only included them “as citizens”.
“ballantine, I would beg to differ and state that Waite did echo Vattel. I’m not sure why you would find this difficult to see or admit. I think it has no legal impact on WKA or our history of ECL. The understanding of the world by our founders included Swiss philosophers as well as English barristers.”
If Waite said he was looking to Vattel, one could say he was looking to Vattel. To say otherwise is mere speculation. He said the common law which is not Vattel. This is the problem with trying to parse and read between the lines of ambiguous obiter dicta and why real lawyers generally ignore such. A real lawyer will only cite what a court actually says and nothing more. Trying to go further is unethical.
“I guess he pulled it out of his ass! Just because he didn’t attribute it to Vattel, that doesn’t mean that he wasn’t quoting Vattel. (or the accepted English translation thereof)/”
Waite said he was looking “at common law.” Sorry, that is not Vattel. It is true that was nodoubt about native children of citizens at common law. Saying he was citing Vattel is just making stuff up which seems to be all you do. Of course, you don’t have to try to figure out what Waite dicta meant as you have a whole later case spending 20 plus pages telling us the law “at common law.”
“Not only did the Eighth Circuit recognize that Justice Waite’s words came from Vattel; the court was nice enough to point out that those words specifically came from Page 101 of the English translation of Vattel’s Law of Nations.”
You have to provide a cite if you want a comment. The 8th circuit would have no idea where Waite got the quote. Again, no court has ever said “at common law” had anything to do with Vattel.
“This time make sure to identify exactly what Justice Waite is saying could be added to. I think you will see that it is to the role of citizens [not natural-born citizens] where the doubts were concerned.”
what? I think you should reread it.
“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.”
Justice Waite is talking about NbCs. Look, being difficult is something I excel, you needn’t insinuate your personal hopes and fears into the opinion. Unfortunately, it is quite clear that the discussion starts with that which is undoubted regarding NbC and concludes with his admittance as to what is still unresolved. I don’t like the fact WKA answered those doubts the way it did, but it doesn’t change the fact NbC was fundamentally changed to include the offspring of illegal aliens.
ballantine, I would beg to differ and state that Waite did echo Vattel. I’m not sure why you would find this difficult to see or admit. I think it has no legal impact on WKA or our history of ECL. The understanding of the world by our founders included Swiss philosophers as well as English barristers.
“Waite didn’t quote Vattel at all”
I guess he pulled it out of his ass! Just because he didn’t attribute it to Vattel, that doesn’t mean that he wasn’t quoting Vattel. (or the accepted English translation thereof)
We have a choice here. Do we accept the bias of Ballantine, or do we look to what a court without a dog in this fight had to say?
I’m siding with the court.
Not only did the Eighth Circuit recognize that Justice Waite’s words came from Vattel; the court was nice enough to point out that those words specifically came from Page 101 of the English translation of Vattel’s Law of Nations.
“No. The relationship between the domiciled alien and that of a visitor are different.”
Of course, Gray never said this. Rather, he embrace the common law which made no difference. Have you read the case?
“Knowing that Justice Waite was quoting Vattel…”
Waite didn’t quote Vattel at all. Again, have you read the case?
Portney,
Please read the portion of Justice Waite’s opinion again. This time make sure to identify exactly what Justice Waite is saying could be added to. I think you will see that it is to the role of citizens [not natural-born citizens] where the doubts were concerned. The natives or natural-born citizens were clearly defined and not left open.
Knowing that Justice Waite was quoting Vattel, there is little reason to doubt that the Court was familiar with the whole paragraph they were quoting. That paragraph ends with;
“I say, that, in order to be of the country, it is necessary that a person be born of a father who is a citizen; for, if he is born there of a foreigner, it will be only the place of his birth, and not his country.”
“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?”
No. The relationship between the domiciled alien and that of a visitor are different.