-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.
Slart, of course its understood that the opposition was the U.S. Government who feared the implications. You know, they made a pretty good damn argument to try to win the case, but it’s just that opinions that goes no where before future courts. We will see what the Supreme Court thinks about WKA and the M v H decision in the not so far future, I have no doubt about it.
Gorefan, yes that was Justice Fuller’s opinion I understand but we must pay closer attention to the decision and the binding precedent than the opinion of judges that has no weight on the law.
gorefan,
Yes, that is what I was referring to. Thank you.
mrjr101,
The same reasoning that the court used to declare Mr. Wong a citizen was acknowledged (by both sides) to also imply that Mr. Wong was a natural born citizen. Are you really not smart enough to see how this undermines your argument or are you just not honest enough to admit when you make an error?
mrjr101
Never said they were, I was merely pointing out to you what Slartibartfast meant when he said,
“the opposition in WKA argued that if the SCOTUS ruled in Mr. Wong’s favor then he would be eligible for the presidency”
The “opposition” he was referring to was the Appellants Brief not, as you responded, the dissenting opinion.
Although, in the dissent, Chief Justice Fuller did write,
“Considering the circumstances surrounding the framing of the Constitution, I submit that it is unreasonable to conclude that “natural-born citizen” applied to everybody born within the geographical tract known as the United States, irrespective of circumstances, and that the children of foreigners, happening to be born to them while passing through the country, whether of royal parentage or not, or whether of the Mongolian, Malay or other race, were eligible to the Presidency, while children of our citizens, born abroad, were not.”
Chief Justice Fuller understood the implications of the majority opinion.
Re: “Judge in Wong Kim Ark very bad man. ”
That is your opinion. In any case, the judge you refer to was not alone. He simply wrote the opinion that summed up the views of six Supreme Court justices in a six-to-two ruling (one justice did not vote). And the decision is the law.
The Minor vs. Happersett case is not a ruling on the matter. The Wong Kim Ark case is a clear ruling on the meaning of Natural Born Citizen, and it refers to the common law (not Vattel) and says that the meaning of Natural Born in the common law has always referred to the place of birth, not to the parents of a citizen.
I read here lots about Wong Kim Ark.
Judge in Wong Kim Ark very bad man. He lie to your country. Wong Kim Ark demolished as any kind of precedent. What you do now? Go home?
http://naturalborncitizen.wordpress.com/2012/01/11/the-objectively-gray-propaganda-of-masked-rascals/
We find many lawyers talking about Minor v Happersett. Non call them dicta. Only people after Obama in picture call them dicta. Looks too convenient. Sad.
“Shortly after Donofrio’s findings and further claims regarding the precedent set by Minor, Professor Jonathan Turley published a post by contributor David Drumm entitled “Holdings, Dicta, and Stare Decisis.” The last sentence of Drumm’s post refers to the Wikipedia article on Minor as further support for his assertion that the “natural born” comments are dicta; however, that particular Wikipedia entry was revised only a couple of months ago (soon after Donofrio’s assertions) to include the very paragraph that Drumm cites. Comments on Drumm’s post now number over 1,300, bearing witness to an ugly war that continues to rage among anonymous commenters. The revision history for the Wikipedia entry reveals similar battle scars.”
Read more: http://www.americanthinker.com/2012/01/academia_shrugs_obamas_citizenship_and_the_presidency.html#ixzz1jD4t0oEw
Dear ugly warriors…;)
mrjr101 – “im sure you know that the dissent is not part of the ruling.It obviously does not make anything clear and it is not the law.”
Actually, I believe that Slartibartfast is referring to the US Government’s brief in the appeal of the District Court’s ruling.
In that brief the Government said the District Court ruled:
“The question presented by this appeal may be thus stated: Is a person born within the United States of alien parents domiciled therein a citizen thereof by the fact of his birth? The appellant maintains the negative, and in that behalf assigns as error the ruling of the district court that the respondent is a natural-born citizen…”
and later
“Are Chinese children born in this country to share with the descendants of the patiots of the American Revolution the exalted qualification of being eligible to the Presidency of the nation, conferred by the Constitution in recognition of the importance and dignity of citizenship by birth?”
Appellant Brief:
http://www.scribd.com/doc/23965360/Wong-Kim-Ark-US-v-169-US-649-1898-Appellants-Brief-USA
Appellee Brief:
http://www.scribd.com/doc/23965351/Wong-Kim-Ark-US-v-169-US-649-1898-Respondents-Brief-Appellee-Wong
District Court Ruling:
http://tinyurl.com/88js2up
The District Court decision starts on page 382.
Gorefan, the appellant briefs nor the District courts decision is necessarily part of the supreme court rulings. The highest court makes the decision in favor of one side and still this does not make all of the arguments from the winning side necessarily true or the arguments from the losing side necessarily false. Consider this invisible disclaimer in all court rullings: “I’m gonna rule in favor of you, but my decision is the only thing that’s binding precedence in lower courts”
Did I mention the dissent? (and, while I am not a lawyer, I would think that reading the dissent would generally be very helpful in clarifying the ruling [by contrast] and would also usually be the source of arguments to overturn rulings). Essentially the lawyer arguing that Mr. Wong wasn’t a citizen said to the court “Don’t rule in his favor or he could run for president one day” and the court said “You’re right” and ruled in his favor.
The most obvious thing about you is your willful ignorance.
im sure you know that the dissent is not part of the ruling.It obviously does not make anything clear and it is not the law.
mrjr101,
The courts have clearly ruled–the opposition in WKA argued that if the SCOTUS ruled in Mr. Wong’s favor then he would be eligible for the presidency*. The court agreed and ruled in Mr. Wong’s favor. That’s the law until a later court says otherwise.
*35-14-hike!
If the Courts clearly ruled just soli for Presidential eligigibility already then there wouldn’t be a case in the first place. I assumed that this theoretical “future court ruling” that you guys referred to revolved around the argument that WKA was somehow not the standing law as far as the meaning of NbC. Then if that’s the case this future court wouldn’t be overruling anything.
mrjr101,
A ruling of “2 citizen parents” would clearly limit presidential eligibility–in other words it would discriminate (take away rights) from a class of citizens. That discrimination may be good or bad, Constitutional or not, but it is definitely discriminatory (i.e. it is technically discrimination but not necessarily in a pejorative fashion). In light of the fact that the courts have clearly ruled “jus soli“, for the SCOTUS to overturn that ruling in favor of “2 citizen parents” would unquestionably be restricting rights.
Fred: I wouldn’t call the Court ruling, if it turns out to be that way (2 parents citizens)a “limitation” or discrimination of certain citizens. They would just be interpreting the phrase as it was always meant to be interpreted since the adoption of the Constitution. Whether you think that meaning itself is discriminatory or not it’s another subject of discussion.
Nice comment, Ellen. I agree with your reasoning. I think there is also a case to be made that the Court would in general find a ruling to limit the pool of people eligible to be president to go against the fundamental principle of a participatory democracy. You would in effect be telling a very large number of citizens for life that they are somehow second class citizens based on their parents status over which they had no control. Many think the NBC clause itself is anachronistic and unnecessary and have argued that it should be abolished. That the Court would rule to make it even more restrictive is very unlikely.
Nal,
From Chief Justice Marshall’s opinion in Cohens v. Virginia 100 U.S. 1
“It is a maxim not to be disregarded that general expressions, in every opinion, are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit when the very point is presented for decision. The reason of this maxim is obvious. The question actually before the Court is investigated with care, and considered in its full extent. Other principles which may serve to illustrate it are considered in their relation to the case decided, but their possible bearing on all other cases is seldom completely investigated.”
And Orly loses again . . .
Obama Birthplace Lawsuit Tossed By Appeals Court
The best of the season and a happy new year to all.
As i said above, but there was little discussion at the time:
Now that we have disposed of the myth that the US Supreme Court in Minor v. Happersett ruled that two US citizen parents are required to be a Natural Born US Citizen, it is worth asking how a US Supreme Court would rule today.
The idea that two US citizen parents are required to be president is based on the notion that children born in the United States of foreign parents are somehow less reliable citizens than US-born children of US parents.
IF you believe that that is true, then it is possible to believe that the writers of the Constitution also believed it—despite the fact that they did not say it. There are no articles from the writers of the US Constitution saying that they considered the US-born children of foreigners would be security risks or that they should be treated differently than the US-born children of American citizens.
On the other hand, if you DO NOT believe that this notion is true, if you cannot see a way in which US-born children of foreigners are likely to be less reliable than US-born children of US citizens (given that the US-born children of US citizens also can be unreliable), then it is difficult if not impossible to believe that the writers of the US Constitution believed it. If they had said that they believed it, that would be a different thing, but they didn’t.
What this means is that in addition to the four liberal justices on the Supreme Court, virtually all the conservatives would vote against the two-parent theory as well.
The conservative justices would not have to ask themselves whether making the US-born children of foreigners not eligible to be president is a good thing or a bad thing. The fact is that the writers of the US Constitution did not say that wanted the US-born children of foreigners to be treated differently than the US-born children of US citizens, and that absence is sufficient.
Under strict construction principles, if the US Constitution does not say it, the US Constitution does not mean it. So the strict constructionists among the conservative justices would not vote for the two-parent theory.
As for the originalists, the historical evidence holds overwhelmingly that the meaning of Natural Born at the time the Constitution was written refers to the meaning of Natural Born Subject in the common law. The idea that the writers of the Constitution, who were mainly lawyers and justices, would pull the phrase out of Vattel (whose words were not even translated to use the words “Natural Born Citizen” until a decade after the Constitution) is simply laughable.
Moreover, originalist justices on the US Supreme Court would have the guidance of the Wong Kim Ark ruling as to the original meaning of Natural Born. And, when they do their own research, the justices would have the evidence of such uses of the term Natural Born Citizen in the years around when the Constitution was written as this, written in 1803:
“Prior to the adoption of the constitution, the people inhabiting the different states might be divided into two classes: natural born citizens, or those born within the state, and aliens, or such as were born out of it. The first, by their birth-right, became entitled to all the privileges of citizens; the second, were entitled to none, but such as were held out and given by the laws of the respective states prior to their emigration. …St. George Tucker, BLACKSTONE’S COMMENTARIES: WITH NOTES OF REFERENCE TO THE CONSTITUTION AND LAWS OF THE FEDERAL GOVERNMENT OF THE UNITED STATES AND THE COMMONWEALTH OF VIRGINIA. (1803)
As you can see, the meaning of Natural Born Citizen refers only to the place of birth, not to parents. Natural Born Citizens were “those born within the state.”
And this, written in 1829 by a man familiar with many of the writers of the Constitution:
“Therefore every person born within the United States, its territories or districts, whether the parents are citizens or aliens, is a natural born citizen in the sense of the Constitution, and entitled to all the rights and privileges appertaining to that capacity.”—William Rawle, A VIEW OF THE CONSTITUTION OF THE UNITED STATES OF AMERICA. 2d ed. (1829)
Thus the votes of the originalists among the conservative justices are lost to the two-parent theory as well as the strict-constructionists.
These conservative justices, the strict constructionists and the originalists, would likely then review the Minor v Happersett decision, and determine, as is obvious, that it is dicta and not a ruling, and that the statement that at one time there were doubts is meaningless in any case. (At one time there were doubts as to whether zippers would work).
So, if the case were ever called by the US Supreme Court, it is likely that the two-parent theory would lose with the vote being nine to zero, or maybe eight to one.
But the court will never call the case because to call it you have to get four justices who think that it is an issue—and if you have eight or nine justices who think that the Constitution is obvious how can you get four justices to think that it is an issue?
At this point two-fers often reply that it does not matter whether the US Supreme Court calls the case or what it would rule, they think that the two-parent theory really is what the Constitution meant. The obvious answer to this is that even if they were right, the law is based on court rulings, and if there is no court ruling that two citizen parents are required, it is not the law.
But in a broader sense they are right. It is possible for each of us to hold a theory about what the Constitution means, and that is really what we are discussing here. In the debate about what the US Constitution meant in the phrase Natural Born Citizen, we can be liberals, in which case the idea that it meant that a child with two citizen parents is better than a child with foreign parents is profoundly immoral, not to mention wrong.
Or, we can be strict constructionists, in which case the fact that the writers of the US Constitution never said that they intended for the US-born children of foreigners to be treated differently than the US-born children of American citizens is sufficient. Or we can be originalists, in which case the meaning in the common law, and the quotations from Tucker and Rawle (and the fact that Vattel is not mentioned in the Federalist Papers while the common law often is) will be the guide.
The two-parent theory is absurd in itself, and the notion that the majority of justices in the Minor v. Happersett case held to it is equally absurd.