Wikipedia:Reference desk/Archives/Humanities/2019 July 20

= July 20 =

Does the US Supreme Court actually have the power to declare a part of the US Constitution to be unconstitutional?
Does the US Supreme Court actually have the power to declare a part of the US Constitution to be unconstitutional? For instance, if, purely hypothetically, a new US constitutional amendment would have passed that would have permanently excluded all Chinese-Americans (even those who are natural-born US citizens) from the US Presidency and US Vice Presidency, could SCOTUS actually declare this new constitutional amendment to be unconstitutional due to it being contrary to SCOTUS's interpretation of the 5th Amendment? Futurist110 (talk) 00:11, 20 July 2019 (UTC)


 * I don't think there is any reasonable reading of Article V that would allow SCOTUS such a power. Someguy1221 (talk) 00:34, 20 July 2019 (UTC)


 * It's more that it's incoherent for part of the Constitution to be unconstitutional. The whole thing is constitutional. could SCOTUS actually declare this new constitutional amendment to be unconstitutional due to it being contrary to SCOTUS's interpretation of the 5th Amendment? Absolutely not. Rulings on the Constitution can and have been superseded by a subsequent amendment. See, e.g., Dred Scott v. Sandford. Where parts of the Constitution conflict with one another, typically the Amendment that is later in time will control (so the 21st Amendment's repeal of the 18th Amendment isn't itself unconstitutional). —/M endaliv /2¢/Δ's/ 01:04, 20 July 2019 (UTC)


 * What if SCOTUS doesn't actually feel like following the later-in-time rule in this case, though? Futurist110 (talk) 20:15, 20 July 2019 (UTC)
 * ... I don’t really understand. Their “feelings” don’t really enter into it. The Constitution is the law of the land. To simply ignore a properly adopted constitutional amendment would be scandalous, to say the least. I expect that nobody would follow such a lawless decision. —/M endaliv /2¢/Δ's/ 20:33, 20 July 2019 (UTC)
 * Please keep in mind, though, that such a move--while being unusual in the US context--actually has been practiced by the courts of various countries. In fact, there's a whole literature about the idea of an unconstitutional constitutional amendment. Futurist110 (talk) 23:06, 21 July 2019 (UTC)
 * The US Supreme Court has no jurisdiction over how other countries manage their constitutions. ←Baseball Bugs What's up, Doc? carrots→ 23:10, 21 July 2019 (UTC)
 * Some might disagree with you there! The concept of universal jurisdiction in international law, for example, suggests that one nation might prosecute human rights crimes committed under the color of national law in another nation. But we're getting a bit off-topic. —/M endaliv /2¢/Δ's/ 23:23, 21 July 2019 (UTC)


 * Also, what about if a later amendment will conflict with an earlier part of the constitution? For instance, SCOTUS ruling that the 5th Amendment implicitly repealed the natural-born citizen requirement for the US Presidency and/or SCOTUS ruling that the 26th Amendment implicitly lowered the age requirements for all US federal political offices--including the US Presidency--to 18 years? Futurist110 (talk) 20:15, 20 July 2019 (UTC)
 * As I said above, if the later-in-time amendment conflicts with the earlier amendment or provision, then the later-in-time amendment controls to the extent absolutely necessary. And that’s key: One doctrine of statutory interpretation that I’m certain is carried up to constitutional interpretation is that portions will be read in harmony as much as is possible. In other words, if it is possible to avoid one amendment superseding another, the Court generally must take that interpretation, and not read an atextual “implicit” supersession into the later-in-time amendment. All that said, there are periods where atextual requirements are read into the Constitution: The Fifth Amendment says nothing about a right to remain silent during interrogations, but Miranda v. Arizona held that such a right existed. Similarly, the Fourth Amendment says nothing about privacy, but Katz v. United States held that a warrant was required where someone had a reasonable expectation of privacy. But in neither of those cases was another provision of the Constitution contravened. In neither case was a provision that expressly required something held to be ineffectual. —/M endaliv /2¢/Δ's/ 20:33, 20 July 2019 (UTC)
 * Why is reading atextual rights into the US Constitution acceptable but not atextual repeals of part of the US Constitution? Futurist110 (talk) 22:53, 21 July 2019 (UTC)
 * What you're calling "atextual rights" (or otherwise) are interpretations of the Constitution. Maybe you've forgotten that the Court upheld the government's right to conscript citizens despite the 13th Amendment. Their argument was that the Congress has the constitutional right to raise armies. In that particular case, the later-in-time principle was ignored. ←Baseball Bugs What's up, Doc? carrots→ 23:09, 21 July 2019 (UTC)
 * There are some really odd decisions when it comes to the military and how it fits in with the Constitution. The relatively recent case of Ortiz v. United States, 138 S. Ct. 2165 (2018), comes to mind. I really enjoyed Justice Alito's dissent, even if I'm not sure I agree with him on the outcome of the case. —/M endaliv /2¢/Δ's/ 23:21, 21 July 2019 (UTC)


 * Just for some additional examples: the 12th Amendment set up a new procedure for the vote of the electoral college, contradicting Article II; the 16th Amendment legalized a federal income tax that was not apportioned to the states, which had been tried before but found unconstitutional under Article I. In each case the later provision takes precedence. --69.159.11.113 (talk) 03:36, 20 July 2019 (UTC)


 * Good examples. I’d also point out that the later-in-time provisions don’t make the prior-in-time provisions unconstitutional. Conceptually it’s better to think of the later-in-time provisions as making the earlier ones powerless; they are still part of the Constitution, and in theory could be harmonized with the later provisions (except the 21st Amendment, which expressly repeals the 18th). Laws passed pursuant to superseded or ineffectual portions of the Constitution, however, very well might be rendered unconstitutional. —/M endaliv /2¢/Δ's/ 04:11, 20 July 2019 (UTC)


 * which body could prevent SCOTUS to do that, if it so choose? none. Every time a Justice write a dissenting opinion, he argues that some part of the constitution has been disregarded and in effect (wrongly, in his opinion) kicked out of the constitution as if it were not part of it, that is, turned unconstitutional. This is not as strong as "let's explicitly declare a part of the US Constitution to be unconstitutional", but in effect is just the same. Gem fr (talk) 16:29, 20 July 2019 (UTC)
 * which body could prevent SCOTUS to do that The executive, by not enforcing an overreaching decision, and the legislature, by impeaching justices that attempted to exceed their constitutional powers. Fortunately, the Court and the other branches of government prefer to avoid precipitating a constitutional crisis, and as such have been very careful to avoid trenching on each other’s powers in retaliation. Honestly, aside from the chaos the Marshall Court was subjected to during the Jefferson administration, the closest we’ve come to this is FDR’s court packing plan to force New Deal legislation to be upheld. And even that didn’t happen (and contrary to popular belief, it wasn’t a transactional concession on the part of the court; the justices themselves began to warm up to the constitutionality of New Deal legislation). Even during the Jefferson administration, the decisions of the Court were respected. But were the Court to outright refuse to enforce a particular provision of the Federal Constitution as written (i.e., it’s not a matter of different readings, but an outright rebellion against the words of the document), I see no reason why the whole Court wouldn’t be replaced. —/M endaliv /2¢/Δ's/ 17:18, 20 July 2019 (UTC)
 * Lots of people would argue that SCOTUS outright refused to enforce a particular provision of the Federal Constitution as written when it, at first, upheld Jim Crow laws, by having the convoluted separate but equal doctrine (which wasn't written in the constitution at all) prevail on the quite explicit 14th amendment, both the way it was written and the intent of those who wrote it (ie: to allow blacks to be regular, vanilla, citizens). Then again, the SCOTUS did not scrap the 14th, it just make it void for all intent of purpose as far as blacks were concerned. Later all the SCOTUS had to do was to scrap the doctrine. Notice that in both case, SCOTUS had all the legislative and executive support you want. Plessy's lawyers no doubt found the decision outrageous and unconstitutional, it didn't help them or their client...
 * I agree that it was wrong for SCOTUS to come up with the separate but equal doctrine. That said, though, some originalist scholars--such as Alfred Avins and Raoul Berger (in his 1977 book Government by Judiciary) actually argued that Plessy was correctly decided. In his book Government by Judiciary, Berger argues that the separate but equal doctrine originated in an 1849 Massachusetts Supreme Court ruling in the case Roberts v. City of Boston. Futurist110 (talk) 20:17, 20 July 2019 (UTC)
 * Even if the legislative or executive branches opposed the SCOTUS, remember that if a matter reach the SCOTUS, it does it through a case with strong enough support on both side; usually some piece of legislation, or executive order, is at stake. And to avoid precipitating a constitutional crisis works both way; refusing to enforce a decision would itself be regarded as rebellious, and impeachment-worthy, for those executive trying that. And while Justices are for life, those opposing them would have to face elections and opponents who could build on the SCOTUS prestige. Ultimately the voters would decide the matter. Meanwhile, SCOTUS opponents would rather enact some slightly different law or executive order, designed to look like it respected the SCOTUS decision, instead of disregarding it outright. Gem fr (talk) 19:00, 20 July 2019 (UTC)
 * This is an unsettled constitutional law issue. It's never come up because no two amendments have ever flatly contradicted each other, and I believe most scholars think the later amendment would implicitly overrule the earlier one (so eg. a hypothetical "nobody can say 'shit' anymore" amendment, if it passed, would implicitly amend and therefore overrule the First Amendment, at least within the scope of that one word.)  It mostly comes up in the context of discussing what would have happened if the Corwin Amendment - an amendment explicitly banning future amendments to end slavery - had passed.  Like the article says, many scholars feel the Corwin Amendment would never have actually had any effect, since any future amendment could simply repeal it (either implicitly or explicitly.) --Aquillion (talk) 20:42, 20 July 2019 (UTC)i
 * The court can legitimately declare a constitutional amendment was not adopted by the procedures specified by Article Five of the United States Constitution, or violates a permanent protection like equal representation in the Senate except by consent. It is currently unlikely to, but theoretically could, make a ruling most people would find blatantly unconstitutional, as courts in some other countries have done at the behest of dictators. The court has a few police officers assigned to it, but no army of its own. So in such cases it comes down to how the executive and legislative branches, the military and police, and people on the street respond. For less extreme history in the US itself, see e.g. The Constitution is not a suicide pact. -- Beland (talk) 21:05, 20 July 2019 (UTC)


 * You must keep in mind that constitutional matters are not, actually, matters of law. They are matter of facts and power. I mean, for instance, the declaration of independence was illegal, and so are all the subsequent acts, including the constitution. And war ensued; arms, not law, decided. Had the King won the war, lots of rebels could have been hanged for their rebellion. The same happened with civil war. The same would happen again if some divisive enough issue occurred. Ultimately, arms decide. Gem fr (talk) 21:28, 20 July 2019 (UTC)
 * To the victor belongs the spoils, and in the case of the USA, a new Constitution. And the Constitution is not illegal. American independence was won on the battlefield and then by treaty. Once the Revolution was settled, America was free to manage itself internally without British interference. And by the way, the Constitution IS law. It's the supreme law of the land. ←Baseball Bugs What's up, Doc? carrots→ 23:56, 20 July 2019 (UTC)
 * Of course the constitution is not illegal; but it would be, if the independence war had been lost. It is "might makes right" kind of law: does this qualify as law to you? My constitutional law books are clear that it is not (which doesn't make it illegitimate: it will all depends on the legitimacy of the Might. That constitution is the supreme law of the land is a legal doctrine (aka: fiction); notice this doctrine is not shared in the UK, which has no explicit constitution. You may compare the constitution to the DNA in a cell: the supreme ruler is not the DNA, it is the apparatus that reads the DNA and turns into real molecules. In the case of the constitution (and laws), this would be the people with legal responsibilities, from the supreme justices down to people and their habit/custom to obey the laws... or not. Where this habit doesn't exists (or not enough), constitution is just paper, or tool that the powerful use and change as fits theirs will (why, the Constitution of the Soviet Union was really great; it provided for such great thing as the right to freely worship or speak, protection of minorities, full voting rights, etc. Somehow, those things didn't make it into reality). Gem fr (talk) 00:57, 21 July 2019 (UTC)
 * The USA is not the USSR. Not yet, anyway. As to the legality of the US Constitution, if the Americans had lost the war, said Constitution would not even exist. ←Baseball Bugs What's up, Doc? carrots→ 02:29, 21 July 2019 (UTC)
 * Yes, exactly. The Constitution itself didn't violate British law (though, its adoption probably did violate the Articles of Confederation). Even so, it might be better to think of the United States that came into existence in 1790 as being a successor state to the United States that existed before it. If you think of it that way, it all makes a lot more sense: It was a (relatively) bloodless revolution. —/M endaliv /2¢/Δ's/ 20:56, 21 July 2019 (UTC)
 * I wonder who would have had the authority to declare the new Constitution unlawful? ←Baseball Bugs What's up, Doc? carrots→ 23:12, 21 July 2019 (UTC)
 * You'd probably need some significant holdout refusing to ratify the new Constitution, like all the southern states... which might have triggered a civil war. Instead, they hammered it out in the constitutional conventions and came up with something everyone found satisfactory. —/M endaliv /2¢/Δ's/ 23:25, 21 July 2019 (UTC)
 * You should rather ask: who would have had the authority to declare the new Constitution lawful. Canada doesn't have this problem, as its constitution was approved by the previous authority. USA, on the other hand, bootstrapped its authority out of its victorious rebellion, that is, pretty much the worst unlawful act you can think of. Gem fr (talk) 23:32, 21 July 2019 (UTC)
 * The individual states did, by ratifying it. ←Baseball Bugs What's up, Doc? carrots→ 02:35, 22 July 2019 (UTC)
 * Think further: out of what authority did they even qualify as states? The fact their leaders (successfully) betrayed the King. Back to my point: constitutional matters are only a matter of fact and actual power, of which legitimacy and lawfulness are only a part(if they even occur). Gem fr (talk) 06:29, 22 July 2019 (UTC)
 * You're completely off-topic at this point. —/M endaliv /2¢/Δ's/ 07:27, 22 July 2019 (UTC)
 * The states didn't appear out of thin air. Their colonial boundaries were already pretty well set by the British. They rebelled, they won, and the British conceded defeat and made a treaty, rendering the USA legitimate in the eyes of their former master. ←Baseball Bugs What's up, Doc? carrots→ 07:53, 22 July 2019 (UTC)
 * I am just pointing out (I'll repeat myself) that constitutional matters are of Might makes right kind. Meaning, the answer to OP question doesn't lie in law technicality, but only in practical fight (armed or not). Seems pretty on topic to me Gem fr (talk) 10:28, 22 July 2019 (UTC)
 * Alternatively, some might argue that victorious rebellion is the only lawful form of rebellion. Some cultures even formalised this notion - see for example Mandate_of_Heaven. Iapetus (talk) 07:58, 22 July 2019 (UTC)
 * Yes. Then again: Might makes right Gem fr (talk) 10:28, 22 July 2019 (UTC)

Medieval German literature (done)
Opinions? (For reasons of clearness, please only post there. Thanks in advance!)--Hildeoc (talk) 18:49, 20 July 2019 (UTC)
 * Um - is there a question here? -- SGBailey (talk) 09:27, 22 July 2019 (UTC)
 * He's asking us to comment on the debate at Talk:Medieval German literature. --Viennese Waltz 09:31, 22 July 2019 (UTC)

'' Thanks for your interest. Medieval German literature is now a dab.''--Hildeoc (talk) 18:16, 23 July 2019 (UTC)

Home for Wayward Boys
While researching the early life of someone born in the mid-19th century, (who was commonly referred as an "orphan", sometimes in quotes in contemporary accounts), I found out that he was essentially dropped off at a "home for wayward boys" by his uncle, purportedly "temporarily". Sometime later, a circus performer (looking for a protégé to include in his act?) goes there and, in effect says "I'll take that one", and leaves with the boy, soon becoming a famous father and son acrobatic act. Two questions: 1) Would a  "home for wayward boys" necessarily have been an orphanage?  Would such a place simply hand over a boy to somebody unrelated?  2)  While researching I came across this list:  –and noticed several having "Training Home" in their names. What exactly was/is a "Training home" for children? Thanks in advance. 107.15.157.44 (talk) 20:32, 20 July 2019 (UTC)


 * At that time, abandoned children were cared for by basically private charitable institutions such as the Foundling Hospital, or (more probably) fell into the last-resort jurisdiction of the English Poor Laws. The private institutions were erratic by modern standards, while the poor law system was often marked by extreme penny-pinching (since the burden fell onto the taxpayers of each local civil parish) as well as sanctimonious attitudes about the "deserving" and "undeserving poor", about how the condition of a man on "relief" always had to be worse than that of the poorest working man in the area, or otherwise there would be a "pauperising" effect as workers resigned their jobs en masse to go into the poor house (this was not actually a very likely scenario, but poor-law supervisors seemed to be perpetually terrified of it, or claimed to be), and so on at nauseating length.  In these circumstances, it's quite likely that some minor functionaries wouldn't ask too many questions when someone offered to take responsibility for a child (under the pretext of an apprenticeship etc.). AnonMoos (talk) 01:56, 21 July 2019 (UTC)


 * Some more details on AnonMoos's pertinent comments above. In 1857, the Industrial Schools Act set up a framework for boarding schools for delinquent or vagrant boys, where they would be taught skills such as carpentry and metal working which would could be used in industry, and avoided them becoming inmates of prison or the work house. In theory, the boys' parents had to pay, but in practice, it was the parish board of guardians and from 1870, the local school board. These schools were based on pioneering work by private and church charities, whose work continued after the state provision was introduced. Some charities specialised in teaching boys specific skills such as domestic service or seamanship, The Waifs and Strays Society, Dr Barnado's Homes and TS Mercury are well known examples, although charities often tried to avoid children with criminal convictions. Alansplodge (talk) 10:44, 21 July 2019 (UTC)
 * As to boys being removed from a home, based on the details of Oliver Twist (1837), a prospective employer would have to enter into a formal apprenticeship agreement, an indenture, which would then have to be approved by a magistrate; however, since the magistrates were recruited from the local gentry, they were likely to be more sympathetic to the parish guardians than to the interests of the child, as was the case with young Oliver. But it would have been in everyone's interest for a boy to get started on a viable career path, which seems to have worked out well for the subject of your research. Alansplodge (talk) 14:47, 21 July 2019 (UTC)
 * Many thanks to both! Interesting stuff from an interesting time; my mind too, harkened back to Dickens. —107.15.157.44 (talk) 18:55, 21 July 2019 (UTC)
 * ... As an aside: further research suggests that the reason "orphan" was often in quotes in contemporary accounts is that it was implicitly suggested that his adoptive father was actually his real father.  They do resemble each other. —107.15.157.44 (talk) 19:11, 21 July 2019 (UTC)
 * Is this El Niño Farini, adopted son of William Leonard Hunt? Alansplodge (talk) 20:43, 21 July 2019 (UTC)
 * Yep! I'm working on the draft -- was surprised that WP didn't already have an article; this is my 1st article (could surely use some help). —107.15.157.44 (talk) 20:52, 21 July 2019 (UTC)
 * The way you asked your original question strongly implied that you had in mind a case in England ca. 1850, and I answered accordingly.  The English poor laws obviously would not have applied in Massachusetts... AnonMoos (talk) 00:59, 22 July 2019 (UTC)}
 * I only just now added the Massachusetts bit to the draft. Why Farini went from London  [not sure about this] to Boston and back  [then to London] (bringing the boy) is still a mystery; as is how/why the boy (being born "somewhere in Maine" wound up in Boston. And I've found some info about his mother, which is another another mysterious story (she died when her son was 7 -- in Havana, Cuba). [forgot to sign: 107.15.157.44 (talk) 04:00, 22 July 2019 (UTC)]
 * : mentions his marriage to Farini's sister, Edith May Hunt.
 * A photograph of him in drag is at (could go in an "External links" section).
 * Finally, I suggest running your draft past somebody at the Teahouse before you move it into the mainspace. Good luck.
 * Alansplodge (talk) 21:24, 21 July 2019 (UTC)
 * And another finally, it's well worth creating an account! Alansplodge (talk) 21:44, 21 July 2019 (UTC)
 * Thanks again, Alansplodge —107.15.157.44 (talk) 23:57, 21 July 2019 (UTC)
 * Definitely the last, . He was a big fan apparently, but also an interesting newspaper quote suggesting that many people (but not Carroll apparently) realised that Lulu was really a cross-dressed boy.
 * You should add some categories to your article: I would go with Category:Trapeze artists and Category:American circus performers unless you think they might qualify as Category:British circus performers or perhaps both. We also have a Category:Male-to-female cross-dressers. Alansplodge (talk) 17:58, 22 July 2019 (UTC)
 * I'm unsure about 'circus performer' categories; although one could argue that he performed circus acts, thusfar I haven't found that he performed with an actual circus. —107.15.157.44 (talk) 07:42, 23 July 2019 (UTC)
 * Lulu - The Eighth Wonder of The World by HEATHER TWEED, Ripperologist magazine February / March 2018 (p. 17) Alansplodge (talk) 21:22, 22 July 2019 (UTC)
 * Definitely the last "Thanks again, @Buggerlugs " —107.15.157.44 (talk) 03:08, 23 July 2019 (UTC)
 * Definitely the last "Thanks again, @Buggerlugs " —107.15.157.44 (talk) 03:08, 23 July 2019 (UTC)