-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.
What’s the difference if the 14th “reaffirms pre-existing law” or not?
The question before the Court stopped at the 14th. Whether the 14th “reaffirms pre-existing law,” or not, seems more like a political or historical question.
If the purpose of the amendment reaffirms pre-existing law, how can one define it without determining what the pre-existing law was. One can’t.
Squeeky,
The WordPress spam filter gets flaky sometimes and won’t pass comments for some unknown reason. Nothing the blog administrators can do about that except flag a comment as not spam, then the comment will show up. Let us know if any of your comments don’t show up, we can clear them.
Ballentine,
You did previously post about the declaratory nature of the 14th. I need to think about that implication some more. I don’t see that the declaratory nature of the 14th is necessary to answer the question before the Court.
“Now, please show me the ACT that ESTABLISHES Jus Soli, or are you going to argue that the Congresses plenary power over immigration ends at the shores…?”
You don’t understand that naturalization statutes are just for persons who are not native born. No statute existed prior to 1866 conferring citizenship on persons born in the United States because such were citizens by operation of the Constitution, first in the natural born citizenship clause and then the 14th Amendment. Today’s statute just restates the 14th Amendment which of course Congress has no power to change. No court in our history has ever said someone born on our soil is a citizen by virtue of statute. In fact, according to our courts, “naturalization” by definition only applies to the foreign born:
“The right of naturalization was therefore, with one accord, surrendered by the States, and confided to the Federal Government. And this power granted to Congress to establish an uniform rule of naturalization is, by the well-understood meaning of the word, confined to persons born in a foreign country, under a foreign Government. It is not a power to raise to the rank of a citizen any one born in the United States, who, from birth or parentage, by the laws of the country, belongs to an inferior and subordinate class.” Chief Justice Taney, Dred Scott v. Sandford, 60 U.S. at 417 (1857)
“It appears, then, that the only power expressly granted to Congress to legislate concerning citizenship, is confined to the removal of the disabilities of foreign birth.” Justice Curtis, Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 478 (1857)
“But what is naturalization? It is the removal of the disabilities of alienage… Congress has power ” to establish an uniform rule of naturalization….An alien naturalized is “to all intents and purposes a natural born subject…The power is applicable only to those of foreign birth. Alienage is an indispensable element in the process. To make one of domestic birth a citizen, is not naturalization, and cannot be brought within the exercise of that power. There is an universal agreement of opinion upon this subject.”Justice Swayne, United States v. Rhodes, 1 Abbott, US 28 (Cir. Ct. Ky 1866)
For those who cling to their English Law and State courts to remain in the debate I suggest you relent and accept that the Constitution is the Supreme Law of the land and realize that among the enumerated powers of the Congress you’ll find at Articles I Section VIII;
“…To establish a uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the United States;…”
Now, please show me the ACT that ESTABLISHES Jus Soli, or are you going to argue that the Congresses plenary power over immigration ends at the shores…?
Lynch was a Probate/Estate inheritance case, in a New York Chancery Court with the most pertinent aspect of the case being that there was property and money involved. A New York Judge would naturalize a rat off a ship from Timbuktu for the right price, so you keep your Lynch and I’ll keep the Constitution.
TITLE 8 > CHAPTER 12 > SUBCHAPTER III > Part I
Nationality at Birth and Collective Naturalization
The following shall be nationals and citizens of the United States at birth:
(a) a person born in the United States, and subject to the jurisdiction thereof;
You may dispute my reading of the codification of the “collective naturalization provision” of the declaratory born statement of the 14th but then that is to be expected, but the point is. THIS is the 1st instance of an expression of jus soli, under the Rule of Law emanating from the Constitution, with the various DICTA emanating from the various Courts notwithstanding.
“Whether that child is a “natural-born citizen” or not, is not necessary to the determination if that child is a citizen at birth. Therefore, any “natural-born citizen” content, no matter how extensive and accurate the analysis, is dicta”
It is not dicta if the 14th Amendment is deemed declaratory of pre-existing law which I pointed out is what Gray said. Gray was asked in WKA was a citizen under the 14th Amendment. Gary said the Amendment was simply declaratory of pre-existing law. Hence, the determination of WKA’s citizen depended on his status under the original Constitution where the only type of citizen by birth was a natural born citizen. Thus, the examination of the pre-existing law under the original Constitution is clearly necessary to answer the question presented and is not dicta. One can spin all one wants, but if WKA was not a natural born citizen, how could he be a citizen under the 14th Amendment if the Amendment was simply declaratory?
“Insults. Slick job, counselor, you just called Nal “dense.”
I am relieved that all of Gray’s ramblings carry a weight I did not know they had. I guess the quote from Minor is now a citation with full authority.
Gray quotes Minor’s assertion that the definition of Natural Born cannot be found in the Constitution, he then goes on a filibuster to define Natural born, and according to you, he determines that Natural born citizens are the same as 14th amendment citizens.
???
So, it is in the Constitution. Wait, no it’s not. Oh yes it is! Didn’t Kirk kill a robot this way?”
Justice Gray points out that undefined terms in the Constitution should be defined by the common law. Justice Waite said the same thing in Minor and the court has said the same thing a hundred times because the common law the legal system of the founders as it was in place in every state. The court goes on to state that “natural born citizen” is thus derivative of “natural born subject” and cite authority after authority that we had adopted the common law rule. Calling Gray’s comprehensive history lesson on the origins of the nationality law of England and the United States “ramblings” shows you are not serious in trying to understand what the court has said.
After spending 20 pages on the common law under the original constitution, Gray finally turns to the 14th Amendment. He say it is simply declaratory of pre-existing law:
“the face of the amendment, as well as from the history of the times, this was not intended to impose any new restrictions upon citizenship, or to prevent any persons from becoming citizens by the fact of birth within the United States who would thereby have become citizens according to the law existing before its adoption.” Hence it is “declaratory of existing rights and affirmative of existing law as to each of the qualifications therein expressed.”
Hence, Gray defines the 14th Amendmnt with the definition of “natural born subject” that he had just told us defined “natural born citizen”:
The 14th 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.”
That is the definition of “natural born subject” from Calvin’s Case with indian tribes thrown in as an additional excpetion, an excecption the British maintained as well and one that was discussed in great detail in the 39th Congress. No legal authority has ever said the 14th Amendment created a different type of citizenship than the original Constitution and the Amendment simply restated the original rule but made clear it was color-blind. According to Gray:
“Its main purpose doubtless was, as has been often recognized by this court, to establish the citizenship of free negroes, which had been denied in the opinion delivered by Chief Justice Taney in Dred Scott v. Sandford, (1857) 19 How. 393, and to put it beyond doubt that all blacks, as well as whites, born or naturalized within the jurisdiction of the United States are citizens of the United States.”
Quote: “Whether that child is a “natural-born citizen” or not, is not necessary to the determination if that child is a citizen at birth.”
A child who is a citizen at birth is born a citizen, and hence, a natural-born citizen.
@ Nal:
Is there anything in Wong Kim Ark to suggest that SCOTUS held that he was a citizen but not a natural-born citizen?
Nal:
(I am having trouble getting this to post. There aren’t any naughty words in it. Plus, another post went thru on me, sooo I am not banned or anything. If this duplicates, I am sorry. Just keep the latest one time wise.)
I respectfully make a Motion for Reconsideration regarding your decision to classify the language from Wong Kim Ark as “dicta.”
You said above:
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”.
The subject language begins:
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. . .
I would submit that the language, “the foregoing considerations and authorities irresistibly lead us to these conclusions” goes far beyond mere “wand waving” and “uttering words” and constitutes an actual conclusion of the SCOTUS on a point germane and relevant to the decision, to wit, that the 14th Amendment is rooted in the common law concept of natural born citizenship, and declaratory thereof.
There was no dispute as to the place of Wong Kim Ark’s birth. The only question was the meaning of the term “under the jurisdiction” as required by the 14th Amendment, and without a finding that the 14th Amendment was an affirmation of the concept of natural born citizenship, the Court would have been left to create its own interpretation of the term.
Therefore, such a conclusion was a necessary step and indispensable finding on the pathway to interpret the meaning of the phrase, “under the jurisdiction” as found in the 14th Amendment.
Further, said subject language was fully cited in the Appeals court level decision of Ankeny v. Governor, thus again proving the necessity for this intermediate conclusion, that the 14th Amendment was based in the old common law concept of natural born citizenship. Since 1868, the year of passage of the 14th Amendment, additions to citizenship would have to be via the 14th Amendment. Without that finding, that the 14th Amendment was rooted in the common law, that Court would have been left to fly by the seat of its pants.
Such a characterization would be absurd in light of the clear and definite language used by the Wong Kim Ark Court, to wit: “The foregoing considerations and authorities irresistibly lead us to these conclusions. . .”
Respectfully submitted,
Squeeky Fromm
Girl Reporter
pro se
PS: I do some typing and stuff for my BFF Fabia Sheen, Esq., a lawyer, sooo I hope my “Motion” isn’t too bad.
I will check tomorrow. I hope it stays on the dicta topic.
Komfort:
I wrote a very kewl Motion here, and it disappeared into limbo. I am waiting for it. Give me a few minutes.
Squeeky Fromm
Girl Reporter
Despite the contempt you have shown, I will take your advice and attempt to improve my reading skills.
I will start with this:
“However, in 1898 Wong Kim Ark answered all those questions, and YES!!!, if you were born here and not the kid of a diplomat or alien invader, then you were a NBC!
Squeeky Fromm”
By “answered” do you mean they “held”?
That would contradict this:
“In Ark, the question before the Court was whether a child born in the United States, to ordinary alien parents, becomes a citizen at birth via the Fourteenth Amendment.
Whether that child is a “natural-born citizen” or not, is not necessary to the determination if that child is a citizen at birth. Therefore, any “natural-born citizen” content, no matter how extensive and accurate the analysis, is dicta”
Show your style, girl, let Nal have it! (Of course I may have misinterpreted what you wrote. Duh on me, if I did.)
Nal said:
In Ark, the question before the Court was whether a child born in the United States, to ordinary alien parents, becomes a citizen at birth via the Fourteenth Amendment.
Whether that child is a “natural-born citizen” or not, is not necessary to the determination if that child is a citizen at birth. Therefore, any “natural-born citizen” content, no matter how extensive and accurate the analysis, is dicta.
Nal is playing fair. Thanks Nal, there goes 90% of the bloggers here who won’t engage in that conclusion.
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.
In Ark, the question before the Court was whether a child born in the United States, to ordinary alien parents, becomes a citizen at birth via the Fourteenth Amendment.
Whether that child is a “natural-born citizen” or not, is not necessary to the determination if that child is a citizen at birth. Therefore, any “natural-born citizen” content, no matter how extensive and accurate the analysis, is dicta.
Komfort:
You said: 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.
Learn to read. Learn to comprehend what you read. slcraignbc stated:
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. ”
I pointed out a case from 1844, which was 24 years prior to the 14th which flatly contradicted him. Duh. I never said the New York case was binding on Federal courts. Yet, as was pointed out above, Wong Kim Ark did cite the case.
Try to keep up. OK???
Squeeky Fromm
Girl Reporter
Insults. Slick job, counselor, you just called Nal “dense.”
I am relieved that all of Gray’s ramblings carry a weight I did not know they had. I guess the quote from Minor is now a citation with full authority.
Gray quotes Minor’s assertion that the definition of Natural Born cannot be found in the Constitution, he then goes on a filibuster to define Natural born, and according to you, he determines that Natural born citizens are the same as 14th amendment citizens.
???
So, it is in the Constitution. Wait, no it’s not. Oh yes it is! Didn’t Kirk kill a robot this way?
slcraignbc,
That’s a pretty limp, lifeless word salad you’ve served up which doesn’t change the fact that the court in Ankeny ruled President Obama a natural born citizen and the only legal arguments to overturn that precedent are completely frivolous. Holding or dicta, Minor says nothing about President Obama’s eligibility…
Squeeky,
It’s not cruel to devastate irrational arguments nor to ridicule stupidity and willful ignorance–just don’t hold your breath until they finally learn better…
“Now I am confused. I thought the ratio decidendi of WKA did not define “Natural born citizen”,ballantine.
What did Nal and I miss?”
I suggest you read above where I point out in painstaking detail how the ratio decidendi of WKA defined “natural born citizen” according to the English common law. It essentally spent 5 pages saying “natural born citizen” meant the same thing as “natural born subject.” If you can’t understand the majority opinion, I suggest you rad the dissents’s summary of the majority opinion as it really is quite simple although it simply paraphrases what the majority says. Here is the dissent’s simple summary of the majority opinion:
“The argument is, that, although the Constitution prior to that amendment nowhere attempted to define the words “citizens of the United States” and “natural-born citizen” as used therein, yet that it must be interpreted in the light of the English common law rule which made the place of birth the criterion of nationality; that that rule
was in force in all the English colonies upon this continent down to the time of the Declaration of Independence, and in the United States afterwards, and continued to prevail under the Constitution as originally established;
and
that, before the enactment of the Civil Rights Act of 1866 and 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.
Thus, the Fourteenth Amendment is held to be merely declaratory except that it brings all persons, irrespective of color, within the scope of the alleged rule, and puts that rule beyond he control of the legislative power.”
Such is exactly what the majority opinion stated summarized in simple form for the dense to understand.