-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.
“You are in direct contrdiction of the US Department of State. They specifically recognise dual citizenship, but do not encourage it.
I do want to stay on the dicta topic, though.”
I am talking about the early republic, not today’s law. We recognized people were dual citizens in the early republic as well, we didn’t recognize that people owed a dual allegiance at least when they were in the United States. When they domiciled oversees was a matter nations argued about as the public law was unclear. This is a pretty complicated subject but any nation can make a foreign born person a citizen for municipal purposes. Such doesn’t mean one can claim their allegiance under public law. England made children of its subjects born on our soil British subjects for municipal purposes. It meant they had the municipal rights of British subjects when in England but did not mean they could claim the political allegiance of such subjects under notions of public law at least without a protest from the United States. One can look all day and find no one in the Early Republic that thought a baby born on our soul owed a foreign allegiance.
Ballantine, your statement: “For those who push the dual citizenship theory, do you really not do any critical thinking and realize that foreign nations could make all americans dual citizens if they wanted to,” is just priceless. Is this the best you can do?
If a child is born in their territory, I suppose a nation does have a right to confer citizenship, although why they would want to do so is an interesting question. If you had a baby while on vacation in Jamaica, if Jamaica had jus soli laws, your child could have dual citizenship, although I’m not sure that Jamaica has enough to offer so that this status would be thought of as a good thing. Such a citizenship would imply that the child could vote in Jamaican elections, and wear their uniform if called to war? Hmm.
But countries also have the right to bestow citizenship on the children of their citizens, no matter where they are born…wasn’t this the idea pushed for McCain?
So your statement is ridiculous. Foreign nations, if a birth does not take place on their soil or to its citizens, have no right to “make all americans dual citizens if they wanted to.” Even if they tried to, you really believe anyone would take them seriously?
Yet, I am the one not thinking critically?
“Ballentine, other nations cannot create binding citizenship arbitrarily. That defeats the notion of sovereignty. Please do not go down the “we are all Russian, if Russia says so” line of thinking. It is beneath your other arguments.”
As was reported to Congress , the nations of Europe in the early republic transmitted citizenship by descent for 2 or 3 generations making most Americans dual citizens even if born in the United States to citizen parents. There is no rule that they couldn’t extend such for as many generations as they wanted. Since we are a nation of immigrants certainly everyone in the early repulic could have been a dual citizen by operation of foreign law. However, citizenship is a creature of the municipal law of each nation that is binding inside the sovereign nation, but under Public Law, it has no effect outside such nation without the consent of the other nation. Accordingly, the United States simply ignored claims of foreign allegiance.
Sallyven said:
“In fact, if they considered even the taint of past foreign citizenship as precluding the right of a naturalized citizen to become president, you sincerely believe they would have allowed one actually born into a state of multiple citizenships to be eligible? Please.”
Under strict construction principles if they didn’t say it, they didn’t mean it, and they didn’t say it.
You are in direct contrdiction of the US Department of State. They specifically recognise dual citizenship, but do not encourage it.
I do want to stay on the dicta topic, though.
Ballentine, other nations cannot create binding citizenship arbitrarily. That defeats the notion of sovereignty. Please do not go down the “we are all Russian, if Russia says so” line of thinking. It is beneath your other arguments.
“I cannot imagine that the framers would have agreed with such an inconsistency, and likely never regarded the concept of “dual citizenship” as other than, as some scholars have suggested, a state of “civic bigamy.”
In fact, if they considered even the taint of past foreign citizenship as precluding the right of a naturalized citizen to become president, you sincerely believe they would have allowed one actually born into a state of multiple citizenships to be eligible? Please.”
You can speculate all you want on what you believe the founders would have thought. In law, you need to cite authority, not speculation. No founder said dual citizenship was relevant. It wasn’t relevant under English law and no one said it was relevant in the US. In the Convention there were a few delegates who feared that foreign born persons would have attachments to their native land. No one suggested native born persons had such attachments.
For those who push the dual citizenship theory, do you really not do any critical thinking and realize that foreign nations could make all americans dual citizens if they wanted to. No nation lets other nations determine who there citizens are. Such is an absurd notion. Rather, it is simply a fact that most Americants in the early Republic did have dual citizenship under the laws of Europe. The reaction of our state department and Congress was to declare that we did not recognize any foreign claims of allegiance on our citizens. Of course, when our citizens left our Country to issue became more complicated.
“The question is presented in this case, whether, since the adoption of the fourteenth amendment, a woman, who is a citizen of the United States and of the State of Missouri, is a voter in that State, notwithstanding the provision of the constitution and laws of the State, which confine the right of suffrage to men alone. We might, perhaps, decide the case upon other grounds, but this question is fairly made. From the opinion we find that it was the only one decided in the court below, and it is the only one which has been argued here.” Justice Waite
From the opening statement the Court establishes dominence of Constitutional authority ie; “in the court below”. The question, since the adoption of the fourteenth amendment and “who” is a citizen of the United States becomes the foundation of the opinion as to suffrage (the right to vote), ie; “a citizen”. Justice Waite distinguishes citizenship as of the Constitution in only per the Constitution, “a natural-born Citizen”, not to the latter to ascertain citizenship of the United States. One being the foundation of the law, the Constitution, ie; “natural-born Citizen” the latter a right of citizenship by amendment or by a law enacted to the Constitution. “The question is fairly made”.
WKA held that natural born citizen and natural born subject mean the same thing.
A child born overseas to British lineage is a natural born subject. A child born overseas to American lineage is not a natural born citizen, unless a non-binding resolution says othewise.
I will study the definition of synonyms before I reread WKA.
Hello, Ballantine, its been a while. Resorting to hints of racism, again?
Among a few other things I’ve never seen fully addressed on these forums: the long-standing notion of “partus sequitur patrem,” also mentioned by Fuller in his WKA dissent.
The Court recently held, in Flores-Villar v. US, that naturalization laws can indeed differ depending on whether the US citizen parent is the mother or the father.
By virtue of the Cable Act, US citizen wives no longer lost their citizenship when they married a foreigner, thus the quandary established that a child could be born a dual citizen, while at the same time foreign-born individuals, in order to become a US citizen, were (and are still formally) required to reject past citizenships. Fair?
I cannot imagine that the framers would have agreed with such an inconsistency, and likely never regarded the concept of “dual citizenship” as other than, as some scholars have suggested, a state of “civic bigamy.”
In fact, if they considered even the taint of past foreign citizenship as precluding the right of a naturalized citizen to become president, you sincerely believe they would have allowed one actually born into a state of multiple citizenships to be eligible? Please.
Sallyven said: “The fourteen-year residency is an additional requirement, so obviously they were talking about something other than place.”
There is no evidence, and there would HAVE to be evidence under strict construction principles, that the writers of the US Constitution were talking about anything other than place. That is what Natural Born meant under the common law, and they were overwhelmingly lawyers, familiar with the common law. And here is an example of how the phrase Natural Born Citizen was used in 1803, shortly after the US Constitution was written:
“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, it refers only to place. Natural Born Citizens were “those born within a state.”
IF the writers of the US Constitution had meant Natural Born Citizen to mean anything other than the use of Natural Born in the common law, they would have told us–and they didn’t.
“Whether this point related solely to the soil on which the candidate was born, at that moment of birth, is laughable.”
Just because you say so does not make it true. One needed to be born on English soil to sit in Parliament. In the Convention, place of birth like the English rule was the only thing discussed. Simply not a shred of evidence anyone thought parentage of Vattel’s definition was relevant.
“Vattel’s writings, as much as many of you here prefer to argue otherwise, were influential on the founders as well as the courts.”
Not really. Blackstone and Coke were cited far more often. There is no evidence that Vattel was relied upon for any provision of the Constitution while it is simply a fact that much, if not most, of the Constitution was based upon English law. And, of course, the words “natural born citizen” were not in any edition of Vattel in 1787. Finally, name a single person prior to the Civil War who ever said “natural bon citizen” was defined by Vattel or by any definition other than the English common law. Doesn’t exist.
“Common sense also tells me that “birthright citizenship” and the “birther” controversies are unavoidably intertwined, because proponents of the first are typically the opponents of the second, arguing that the 14th amendment and WKA grant “natural born” citizenship to anyone born on US soil.”
Yes, the members of the 14th Amendment Congress were fully aware that they were clarifying who would be President as some were wary of a black or Chinese President. The “subject to the “jurisdiction” is simply another way of defining the English concept of allegiance or subjection as put forth by Coke and Blackstone. You may not like birthright citizenship, but both the framers of the original Constitution and the 14th Amendment clearly embraced it so you issue is with them.
I think Tribe and Olson did miss a lot. First, they failed to recognize that under the Insular cases and the naturalization laws in effect when McCain was born, McCain might not have even been a citizen. The Canel zone was not treated as US territory for purposes of the 14th Amendment. I don’t think they cited Wong Kim Ark but merely asserted that persons born on US soil were natural born due to the English common law rule. If they read Wong Kim Ark, they would have found the court said:
“A person born out of the jurisdiction of the United States can only become a citizen by being naturalized, either by treaty, as in the case of the annexation of foreign territory, or by authority of Congress, exercised either by declaring certain classes of persons to be citizens, as in the enactments conferring citizenship upon foreign-born children of citizens, or by enabling foreigners individually to become citizens by proceedings in the judicial tribunals, as in the ordinary provisions of the naturalization acts.”
Such is not helpful to McCain. However, this is clearly dicta for the issue of foreign born persons was not before the court.
I have seen lawyers argue forever about whether something is dicta or not. My view is one needs to look at the rationale the court used to answer the question presented. In WKA, I thus view pages 653 to 675 which defines citizenship law under the original Constitution to be part of the rationale since the Court then goes on to say the 14th Amendment simply reaffirmed this definition. The discussion on citizenship law under the original Constitution begins with the statement that “natural born citizen” must be defined by the English common law and, thus, the definition of “natural born subject” “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 “natural born citizen” and “natural born subject” mean the same thing.
Not being an attorney, I tend to rely on old-fashioned common sense and logic. Noting that the Constitution requires members of Congress to be “citizens” while the CIC must be “natural born” implies that the framers were indeed making a point.
Whether this point related solely to the soil on which the candidate was born, at that moment of birth, is laughable. The fourteen-year residency is an additional requirement, so obviously they were talking about something other than place.
As a member of the unwashed masses, I consider that the framers were simply attempting to ensure strong and singular allegiance, the kind that comes from parentage.
Vattel’s writings, as much as many of you here prefer to argue otherwise, were influential on the founders as well as the courts. His “common sense” statements regarding “natural born” citizenship as birth to two citizen parents are also interestingly similar to another very famous philosopher with whom I’m sure the framers would have been familiar: Aristotle.
In Politics, Book 3, Aristotle wrote the following:
“Part 1: …Who is the citizen, and what is the meaning of the term?…Leaving out of consideration those who have been made citizens, or who have obtained the name of citizen any other accidental manner, we may say, first, that a citizen is not a citizen because he lives in a certain place, for resident aliens and slaves share in the place; nor is he a citizen who has no legal right except that of suing and being sued; for this right may be enjoyed under the provisions of a treaty…
Part 2: But in practice a citizen is defined to be one of whom both the parents are citizens…
Part 3: …It would be a very superficial view which considered only the place and the inhabitants (for the soil and the population may be separated, and some of the inhabitants may live in one place and some in another)….
Part 5: … But in many states the law goes to the length of admitting aliens; for in some democracies a man is a citizen though his mother only be a citizen; and a similar principle is applied to illegitimate children; the law is relaxed when there is a dearth of population. But when the number of citizens increases, first the children of a male or a female slave are excluded; then those whose mothers only are citizens; and at last the right of citizenship is confined to those whose fathers and mothers are both citizens…”
http://classics.mit.edu/Aristotle/politics.3.three.html
The language of Vattel and Aristotle is also interestingly similar to that contained in the first version of Larry Solum’s Michigan Law Review paper on the subject of McCain’s eligibility, which he later changed in a second version the phrase “whose parents are citizens” to “with an American parent,” with no explanation for the change other than the added phrase, “as a matter of inclusion.” Very lawyer-esque–what, no citations of case law in support?
To see some of you here actually contradict yourselves while arguing the very narrow ruling of WKA is also quite entertaining. And I have yet to see any of you answer with facts, and not opinions, Donofrio’s question as to why Lockwood included the phrase “this Court held…” when referring to what you call the dicta of Minor.
The condescension displayed on this forum to “birthers” is also quite stunning and sad, considering the time and attention given by other attorneys and academia on the McCain question. Squeeky brought up Breckinridge Long, who once argued against the eligibility of Presidential candidate Charles Evans Hughes (an opponent of Woodrow Wilson) because of his dual citizenship at birth (his father did not naturalize until after Hughes was born), and fortunately for Long, he wasn’t labeled a crazy racist “birther” and went on to serve in the State Department under two Presidents. Imagine that.
Common sense also tells me that “birthright citizenship” and the “birther” controversies are unavoidably intertwined, because proponents of the first are typically the opponents of the second, arguing that the 14th amendment and WKA grant “natural born” citizenship to anyone born on US soil.
Obviously, to argue otherwise would cast a shadow on the eligibility of Obama. So, these must consider that anchor babies, even children born to tourists, as long as they live here for 14 years, are eligible to the Presidency; and people like Hamdi and al-Awlaki are also natural born citizens entitled to habeus corpus.
Those of us outside the ruling class of these attorneys and academics, relying on common sense, consider that “natural born” implies, simply, that no laws are required to make the person a citizen; they are a citizen by virtue of natural law: born in the country to parents who are citizens.
No operation of any statute is required to make a “natural born” citizen, thus he is the opposite of “naturalized.” The resulting difference between the two, then, is the inescapable fact that the “natural born” citizen from birth held only a single citizenship. To the framers, this condition implied and preserved the “allegiance” they were attempting to ensure for the office of the presidency.
Ok, you got me on WKA. I have not read it with such scrutiny. I disregarded much of Gray’s “dicta”.
I will reread.
I am worried that Laurence Tribe and Ted Olsen missed as much as I did. IIRC as Gray pulled quotes from British law to define Natural Born Citizen, he found many instances where a British child, born out of british land, but to a British father, was a Natural Born Subject. The non dicta in WKA would have made their testimony, in SR 511, for McCain, a slam dunk.
Where does the dicta end and the authority began? You pointed to 5 pages, but you also mention the 20 pages.
Not sure I understand the question. The Constitution is full of undefined terms. When the Court is asked to defined such terms it usually looks to the common law since common law lawyers wrote the Constitution. Gray cites Minor and several other cases for this proposition that terms not defined in the constitution should be defined by the common law:
“In Minor v. Happersett, Chief Justice Waite, when construing, in behalf of the court, the very provision of the Fourteenth Amendment now in question, said: “The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that.” And he proceeded to resort to the common law as an aid in the construction of this provision. 21 Wall. 167.”
Waite and Gray were both on the Smith v. Alabama court:
“There is no common law of the United States, in the sense of a national customary law, distinct from the common law of England as adopted by the several States each for itself, applied as its local law, and subject to such alteration as may be provided by its own statutes. . . . There is, however, one clear exception to the statement that there is no national common law. The interpretation of the Constitution of the United States is necessarily influenced by the fact that its provisions are framed in the language of the English common law, and are to be read in the light of its history.”
Not sure this has anything to do with whether this is dicta or not.
@Philo-Publius
Since you referenced Mario Apuzzo it is appropriate to note that he just speculated on his blog that President Obama is not the child of Stanley Anne Dunham but is instead the child of a woman named Jo Ann Newman and Malcolm X. http://puzo1.blogspot.com/2011/11/is-putative-president-barack-obamas.html He still argues that Obama is not a natural born citizen however!
Also, is it just a coincidence that your screen name is suspiciously similar to “Mountain Publius Goat” used by Apuzzo’s client Charles Kerchner?
“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.”
My view is that the holding goes to the question answered. However, the ratio decidendi or the rationale the court uses to come to its holding is broader than the holding. One cannot get to Gray’s definition of the 14th Amendment without defining pre-existing law and hence is part of the rationale of the court.
Ballantine, I scrolled past your earlier post, by mistake. I will read it now. Sorry for posting the Minor question, if you already answered it.
Does Gray’s Minor cite, that declares the definition on “natural born” in not found in the Constitution, contradict your interpretation?
Although I can’t stop you, I do ask you to explain without insults. Just trying to learn about dicta.