-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.
Now I am confused. I thought the ratio decidendi of WKA did not define “Natural born citizen”,ballantine.
What did Nal and I miss?
“Lynch is binding in a federal court? This may not be a very good lesson on dicta but it has been rewarding education on vertical stare decisis.”
Wong Kim Ark cites Lynch as authority and reiterates its interpretation of citizenship as well as dozens of other early authorities who embrace the jus soli rule. Thus, it is Wong Kim Ark which is binding authority.
“There was NO jus soli for those not born of Citizens prior to the 14th and the 14th ONLY provided Collective naturalization to those persons who were previously denied Citizenship. Once Citizens, those persons prodigy were made Citizens via jus sanguinis.”
There is not a single legal authority of signifigance prior to adoption of the 14th disputing that our law was jus soli. Why do you think making up your own history means anthing. Wong Kim Ark cites pretty much every legal giant of the early republic saying you are wrong. I guess Kent, Story, Marshall et al were all worng. Wong Kim Ark concludes:
“Passing by questions once earnestly controverted, but finally put at rest by the Fourteenth Amendment of the Constitution, it is beyond doubt that, before the enactment of the Civil Rights Act of 1866 or the adoption of the Constitutional Amendment, all white persons, at least, born within the sovereignty of the United States, whether children of citizens or of foreigners, excepting only children of ambassadors or public ministers of a foreign government, were native-born citizens of the United States.”
The Supreme Court’s opinion counts. Your opinion as a non-lawyer with no understanding of the issue means nothing.
“And I am ridiculed as if making a linguistic fo pa for my usage of “idiom” to describe the effect on the ‘term of words” by its usage within the Constitution for the specific National Security purpose calling for the exclusion of ALL persons except a natural born Citizen, (something unknown to the term of words prior), and Gray is lauded for the linguistic gymnastics of convoluting domicile and residency abridging the Jurisdiction of the Constitution to territorial limits on the one hand while on the other hand, apparently out of the Justices view, it operates with impunity making Citizens of US Citizens prodigy where ever in the world they may be, along with other ‘immediate family members’.”
You are ridiculed because you make no sense. Gray’s opinion as a matter of fact is the current law and is supported by all pre-existing legal authority in the United States in the early Republic. Domicile was never the rule in the United States and, honestly, I can’t even understand whatever point you are trying to make. The Court following Wong Kim Ark has repeated over and over that there is no rule of descent under the Constitution and that persons born outside of the United States can only be made citizens by statute.
@Bob
What do you think of all this?
Do you predict team WKA will go after you in the same way they go after anyone else who questions their “holding”?
Thanks for the response, Nal.
Goodnight.
Lynch is binding in a federal court? This may not be a very good lesson on dicta but it has been rewarding education on vertical stare decisis.
You want someone who can’t spell “obiter” to weight in?
OK, here goes.
There is no holding in any Supreme Court opinion regarding what constitutes a “natural born citizen.” It’s all dicta.
I further predict it will never be decided.
slcraignbc:
You said: “There was NO jus soli for those not born of Citizens prior to the 14th and the 14th ONLY provided Collective naturalization to those persons who were previously denied Citizenship. ”
You are COMPLETELY mistaken. Read this case. It is from 1844:
http://nativeborncitizen.wordpress.com/category/precedent-cases/lynch-v-clarke-1844/
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.
You are wrong. I have proven you wrong. Now, it is time for you to admit that you are wrong, and change your mind.
Squeeky Fromm
Girl Reporter
I did not know asking a dicta question on a dicta thread would require so much thought. I will check back tomorrow.
Komfort;
Squeky, like Justice Gray, is lost in a world of their own making. What “Ancient law of Jus soli” making of citizens…? Subjects, yes, but “citizens”.
I suppose the FACT that the Constitution adopted by CONSENT is lost on many and that the consent of a minor is only TACIT until continuing as a Citizen after the age of majority.
There was NO jus soli for those not born of Citizens prior to the 14th and the 14th ONLY provided Collective naturalization to those persons who were previously denied Citizenship. Once Citizens, those persons prodigy were made Citizens via jus sanguinis.
But facts do not matter to those that choose the contrary position to what even Aristotle understood in 350 BC.
“Domicile” made synonymous with “within the jurisdiction”…?
And I am ridiculed as if making a linguistic fo pa for my usage of “idiom” to describe the effect on the ‘term of words” by its usage within the Constitution for the specific National Security purpose calling for the exclusion of ALL persons except a natural born Citizen, (something unknown to the term of words prior), and Gray is lauded for the linguistic gymnastics of convoluting domicile and residency abridging the Jurisdiction of the Constitution to territorial limits on the one hand while on the other hand, apparently out of the Justices view, it operates with impunity making Citizens of US Citizens prodigy where ever in the world they may be, along with other ‘immediate family members’.
But I suppose myopia has that effect on some.
Ballantine:
Thank you!!! It is really not hard if you just read the 2 or 3 cases. Then if you do a little research in addition to that, there is no excuse for somebody being a Vattle Birther. Plus, if you just read the arguments on the Internet between Vattle Birthers and the anti-VB’s, you watch the VBs getting smeared time after time to where you almost feel sorry for them being that ignorant of stuff. Then they go and say something mean to you, so then you start to enjoying watching them getting their brains beat out WITH LOGIC.
Am I cruel???
Squeeky Fromm
Girl Reporter
“But to put an even finer point on the absurdities advanced it is expressed with the “English Common Law” being cited when in fact it is English Statutory Law that is used by Blackstone when plucking from the Queen Anne Statutes that codified the Divine Right of Kings prerogative to say who would be its subjects.”
Seriously, I have not seen anyone say something more stupid than this on English law. Slcraignbc is not a lawyer and has no understanding that Blackstone stated that English statutes were solely an exception to the general common law jus soli rule. In fact, no one in English history thought such statutes were anything other than an excpetion from the jus soli common law rule. Funny that non-lawyer birthers who have never studied English nationality law claim they are experts. Funny that Squeeky is able to run circles around these birther experts who have never actually read what English law was in 1787. No real legal authroity would ever dispute that parentage was irrelvant to “natural born” status under the common law.
I never said he wasn’t.
…President.
@ Komfort:
If the author (Nal) does confirm that is the ratio decidendi of Wong Kim Ark, then would you agree that President Obama is a natural-born citizen?
So combative. No wonder you picked the name of an attempted murderer of an American Presidents.
If that is your non-dicta citation, I think the author of this thread should weigh in for validation.
Thanks again.
To Komfort and Craignbc:
Do you need a link to Wong Kim Ark??? Plus, this same thing is in Ankeny v. Governor in case you never read that one either.
From Section V, Wong Kim Ark:
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. The Amendment, in clear words and in manifest intent, includes the children born, within the territory of the United States, of all other persons, of whatever race or color, domiciled within the United States. Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States. His allegiance to the United States is direct and immediate, and, although but local and temporary, continuing only so long as he remains within our territory, is yet, in the words of Lord Coke in Calvin’s Case, 7 Rep. 6a, “strong enough to make a natural subject, for if he hath issue here, that issue is a natural-born subject;” and his child, as said by Mr. Binney in his essay before quoted, “if born in the country, is as much a citizen as the natural-born child of a citizen, and by operation of the same principle.”
Squeeky Fromm
Girl Reporter
“No. Wong Kim Ark says the NBC clause and the 14th Amendment are defined by the same rule and mean the same thing.”
Since this is the defining dictum thread, will you please post the non-dicta citations from WKA that are specific to your assertion?
Nal, will you please verify if indeed the citations are not dicta, and form an actual holding, that perfects the synonymy of the term “natural-born citizen” and the term “citizen”?
Thanks in advance.
The lack of intellectual honesty and zealous advocacy that argues against not only the accurate and historic natural law definition of the Constitutional idiom that was advanced as a National Security measure is disheartening, but the inability to accept the linguistic fact the the “turn of words” was made an “idiom” by its “specific usage for specific purpose” of being an
“exclusionary provision” within the POTUS qualification Clause makes it difficult to accept that the “defenses” of your contrary positions are made in the best interest of the support, protection and defense of the Constitution.
The arguments seem to accept every kernel of “enlargement, abridgement and modification” to the nature of the idiom without the imprimatur of an AMENDMENT.
On the one hand it is advanced that Jus Soli was always the case and on the other it took the 14th to establish jus soli to be “legal” in the Constitutional sense.
But to put an even finer point on the absurdities advanced it is expressed with the “English Common Law” being cited when in fact it is English Statutory Law that is used by Blackstone when plucking from the Queen Anne Statutes that codified the Divine Right of Kings prerogative to say who would be its subjects.
What then of the Supremacy Clause of the Constitution and the predecessor Articles of Confederation that retained only the “structure and prerogative writs’ of the English common law and rejecting those things that were “repugnant” to a sovereign State.
But I have to ask how, by walling off of the truth with inaccurate and deceptive readings of case law and history are any of you 0’pologists able to reconcile the “exclusionary provision of the prerequisite imperative requirement” expressed in A2S1C5 let alone the Minor v opinion, whether considered precedent OR dicta, (which, being cited in numerous cases since its publication is at the minimum, “dicta redux.
It is indisputable that the 1790 Act to make an uniform Rule on naturalization “established” jus sanguinis as the “guiding principle” for determining a persons citizenship status as the 1st principle, i.e., “birth-right”, followed, of course, by promulgated laws to allow those who had no jus sanguinis upon which to rely.
Any judicial act that extended the benefit of citizenship based on solely jus soli prior to the adoption of the Constitution and the act of the 1st Congress is moot and any such occasion after adoption and before the 14th must be looked at with scrutiny of the status of the parents and if of an un-naturalized alien father must be considered as an act of judicial naturalization in controvention to the laws of the Congress.
In the matter of WKA it is more rightly to be considered a judicial kidnapping, given the the Burlingame Treaty’s Article VI was controlling of the Ark’s prodigy. For those that say the 14th Amendment trumps a Treaty need to refer to the Constitution before advancing that argument, lest diplomatic immunities fall into question.
But one last eye opener for all you legal eagles to debate and that is to explain that the only surviving function of the “declaratory born provision” of the 14th is to provide the citizenship benefit to persons born to alien foreign nationals when within the “territorial jurisdiction”, whether present legally or otherwise, since the “statutory benefit” is available, jus sanguinis, to a person born to a citizen parent, whether within the “territorial jurisdiction” or not.
“Tweak”.
Nal:
Thank you!!! Yes, this is a nice website. I have browsed some of the other threads.
Squeeky Fromm
Girl Reporter