Wikipedia:Reference desk/Archives/Humanities/2020 August 12

= August 12 =

Subtitle of the Smyth Report
Our article Smyth Report states: The subtitle of the report is A General Account of the Development of Methods of Using Atomic Energy for Military Purposes.. However, the cover of the 1945 Princeton edition (pictured in the article) appears to have a different subtitle. What am I missing? -- Puzzledvegetable Is it teatime already?  01:14, 12 August 2020 (UTC)
 * It looks like the lede is referring to the original wording of the report. See Smyth_Report.  RudolfRed (talk) 01:49, 12 August 2020 (UTC)
 * Did later editions all use the new subtitle, or was that unique to the Princeton edition? -- Puzzledvegetable Is it teatime already?  13:06, 12 August 2020 (UTC)
 * Atomic Energy. A general Account of the Development Methods of Using Atomic Energy for Military Purposes under the Auspices of the United States Smyth, H D. Published by His Majesty's Stationery Office (HMSO), London, 1945.

300 Spartans in a battle to the death (not the really famous guys)
So I randomized myself to Battle of the 300 Champions. Fascinating. Are there any other examples of battles where the two sides agreed to put up a subset of their soldiers to fight it out? I'm ruling out jousting tournaments. Clarityfiend (talk) 07:14, 12 August 2020 (UTC)


 * Hah. I see Battle of Champions, though that's not what I'd really call a battle per se: 12 Gunns vs 24 Keiths (the sneaks). Clarityfiend (talk) 07:20, 12 August 2020 (UTC)


 * The Combat of the Thirty is a famous medieval example - Dumelow (talk) 08:24, 12 August 2020 (UTC)


 * David against Goliath is a classic example. Cheers ⌘  hugarheimur 10:31, 12 August 2020 (UTC)


 * A real champion. 41.165.67.114 (talk) 12:14, 12 August 2020 (UTC)
 * See also Single combat. -- Jayron 32 11:08, 12 August 2020 (UTC)


 * The FIFA World Cup? Joking aside see also History of sport. 41.165.67.114 (talk) 12:10, 12 August 2020 (UTC)
 * The Spartans did not choose to put up a subset of their soldiers to fight, but rather they had a prior engagement and chose to not fight, or to prioritize that over helping the Hellenistic consortium of which they were not a part (in part because it was formed to counter their strength). They were however shamed into sending a small subset of their elderly and infirm.  These ended up being "The 300" that we know of.  This is a very brief summary of what Herodetus discusses in his second volume.  — Preceding unsigned comment added by 31.53.187.190 (talk) 09:01, 13 August 2020 (UTC)


 * Thanks. Clarityfiend (talk) 03:12, 14 August 2020 (UTC)

==If a US state constitutional provision gets declared unconstitutional but a US state refuses to formally expunge this provision from its constitution, can it permanently remain there but simply always be unenforceable?== If a US state constitutional provision gets declared unconstitutional but a US state refuses to formally expunge this provision from its constitution, can this unconstitutional US state constitutional provision permanently remain there but simply always be unenforceable? Or can the US federal judiciary also require US states to formally expunge unconstitutional provisions from their constitutions? Futurist110 (talk) 17:43, 12 August 2020 (UTC)
 * As with unconstitutional statutes, the unconstitutional provision does not per se need to be formally removed. But in many cases it can be necessary for state government to function, such as after Reynolds v. Sims invalidated many state constitutional structures where seats in the upper house were apportioned equally between counties rather than apportionment according to population. And there's some argument for leaving "unconstitutional" provisions in place when the state disagrees with the ruling as, after all, the federal constitution or Supreme Court case law may change, and readopting the provision may prove more difficult at that uncertain future point. 199.66.69.67 (talk) 18:08, 12 August 2020 (UTC)


 * (EC) The vast majority of state laws being ruled unconstitutional are statutes and not constitutional provisions, but in either case the overturned laws are simply considered void and unenforceable. Since constitutions are not rewritten that frequently, I don't expect that appropriate legislative bodies will rush to rewrite them, but all courts will know that the provisions in question are no longer valid, as this is a rare enough occurrence. See this list of overturned state laws from Justia. The second most recent constitutional provision to be overturned is number 771 on that list, regarding the right of women specifically to be exempted from jury duty in Missouri, back in 1979. Yet it still seems to be part of the Missouri Constitution (Section 22(b)) . I looked up the most recent case (777) concerning the power of juries in Louisiana, and the provision still seems to appear in the state constitution (article 17) . So it doesn't look like there is a rush to actually strike out the offending provisions, even if they have been declared unconstitutional. But, I am not a constitutional lawyer (or even a plain one). Xuxl (talk) 18:33, 12 August 2020 (UTC)


 * There are plenty of laws still on the books which are effectively null and void. There are also provisions in the US Constitution which are no longer operative, but they're still there. ←Baseball Bugs What's up, Doc? carrots→ 19:27, 12 August 2020 (UTC)
 * Well, Futurist is asking about the specific fact pattern where a federally-invalidated state constitutional provision must be repealed or amended, which is actually a thornier question than you might think. Reynolds v. Sims, as I mentioned above, is probably the most (in)famous example of federal courts dictating the contents of state constitutions, and it was absolutely necessary (though not strictly mandated as far as I know) that the invalid apportionment provisions of the various state constitutions be amended. That said, I'm sure the various states in the wake of Reynolds did not amend their constitutions overnight, and that some transitional period was achieved such that the courts wouldn't use an injunction to prohibit the relevant state upper houses from meeting.Put briefly, I would say that most cases where the constitutional provision concerns a fundamental structural component of state government, such as the number of houses or seats in the state legislature, manner that legislators are elected, or the basic system of apportionment of legislative districts, amendment is imperative. In virtually any other case that I can think of, severability would at least make the state remain functional while the federally-unconstitutional text remained in the state constitution, and in the case of things like enumerated rights (which many states are notorious for larding up their constitutions with) there might be virtually no impact whatsoever from the relevant provision remaining in the constitution but not being enforced, and I can see little reason why a federal court would compel a state to change it. 199.66.69.67 (talk) 21:58, 12 August 2020 (UTC)


 * When it comes to gubernatorial qualifications and/or state legislative qualifications, severability is good enough, right? So, there's no crucial need for a formal amendment eliminating any unconstitutional state gubernatorial qualifications and/or state legislative qualifications, correct? Futurist110 (talk) 00:39, 13 August 2020 (UTC)


 * Probably. Though as with anything legal, the better answer is "it depends". If you're talking about, say, a qualification that prohibits anyone of a certain race or religion from holding the office, then I'd say it's "good enough" for constitutional purposes that the provision is simply ignored after being struck down. Other remedial actions might be necessary, such as adding someone to a ballot who had been denied ballot access because of that provision. That said, I'm sure someone more creative than me could come up with a qualification provision that wouldn't be severable from the rest of the constitutional structure. 199.66.69.67 (talk) 00:54, 13 August 2020 (UTC)


 * I was also thinking of a qualification that prohibits naturalized US citizens from, say, being state governors or being state legislators. Futurist110 (talk) 01:59, 13 August 2020 (UTC)


 * Probably the same outcome. 199.66.69.67 (talk) 02:01, 13 August 2020 (UTC)


 * Thanks! Anyway, if it's acceptable to nullify US state constitutional provisions in regards to this by implication (so that instead of having state constitutional text settle a question, the judiciary will settle this question using vague US federal constitutional text instead--since the relevant state constitutional text will not actually be repealed and thus we could have a long period where a state constitution states one thing but reality is quite another), why can't the same work in regards to nullifying US federal constitutional provisions? For instance, using the 5th and/or 14th Amendments to the US Constitutions to implicitly nullify the natural-born citizen requirement for the US Presidency? I mean, this requirement can be severed from the rest of the US constitutional text without too much problems, no? In contrast to, say, the Electoral College, whose elimination (using the very same 5th and/or 14th Amendments) would create a crisis since it's crucial to the functioning of the US Constitution. (Yes, there is the lex specialis canon, but there is also the lex posterior canon, and one of course has discretion in choosing between different canons.) Futurist110 (talk) 02:06, 13 August 2020 (UTC)

Well first off, constitutional provisions are typically read in order to complement one another where possible and avoid overruling/repealing by implication. This is partly why the 21st Amendment explicitly says that the 18th Amendment is repealed, rather than saying something like "the commerce in alcohol shall be permitted by law". The same does not hold true between federal and state constitutions, since federal law is supreme under the Supremacy Clause. Also, sidenote, the 14th Amendment is completely irrelevant to the federal constitution—it applies to the states, not the federal government (though generally speaking 14th Amendment equal protection is just the application of 5th Amendment equal protection jurisprudence to the states, thus 14th Amendment decisions typically also result in 5th Amendment decisions). But again, constitutional interpretation likely prevents an implicit repealing of the natural-born-citizen clause, not only because of the aforementioned issue but also because I find it doubtful that the original public meaning of the 5th Amendment in 1791 would nullify the natural-born-citizen clause. It's just a bridge too far, even inasmuch as we tend to find new rights (e.g., to abortion) within equal protection, the key to those is that their "discovery" does not require the ellipsis of unrepealed constitutional text. That said, if you're aware of a constitutional decision that found a state natural-born-citizen requirement unconstitutional under the 14th Amendment, you might at least have the beginnings of a law review article there. I believe a productive related question would be to ask whether there is any discussion or thought on whether the 19th Amendment was unnecessary because 5th and 14th Amendment equal protection would require granting women the right to vote. I haven't looked into that question, but it'd probably be my first step.All that said, I should note that I don't pretend to even remotely understand equal protection jurisprudence. 199.66.69.67 (talk) 03:51, 13 August 2020 (UTC)
 * Technically speaking, though, one actually could view later parts of the constitution as being superior to early parts of the constitution, as per the lax posterior/later-in-time rule. Alternatively, one could adopt an approach in regards to US state law where, in spite of the US Constitution being superior to US state constitutions, the US Constitution should only strike down US state constitutional provisions when either the US constitutional text is clear or the history behind the US constitutional text is clear. (Eric Segall appears to adopt such an approach for both statutes and state constitutional provisions as far as I can tell.) As for the 14th Amendment, it depends on how exactly one looks at it. If one looks at it from the perspective of state action, the 14th A might be a better fit than the 5th A in regards to implicitly repealing the natural-born citizen requirement since the NBC requirement cannot be said to be the result of federal state action; how exactly could it when the current US federal government didn't actually exist back at the time when the NBC requirement was written? One could certainly view the NBC requirement as well as the US Constitution in general as being the result of state-level state action, however; after all, AFAIK, it was US state governments who called the 1787 US Constitutional Convention into being and who subsequently ratified the constitution that this convention wrote, both of which could be viewed as being state-level state action. The 14th Amendment is the one that applies to state-level state action--not the 5th Amendment. As for original public meaning, not all SCOTUS Justices actually follow it; Earl Warren certainly didn't--well, not consistently, at least! As for a law review article, if you'll look at our natural-born citizen clause article, you'll see that, in 2006, Paul A. Clark actually did write a law review article about this topic. As for the 15th, 19th, and 26th Amendments, Yes, one could view them as being redundant and unnecessary from a living constitutionalist perspective. The 15th A could have been accomplished by judicial fiat from a living constitutionalist perspective whereas the 19th A and the 26th A could have both been accomplished by statute from a living constitutionalist perspective (the 14th Amendment does not penalize US states for denying the suffrage to women or to people under age 21, but nevertheless a living constitutionalist could argue that the 14th Amendment gives the US Congress the authority to extend the franchise by statute, as 4.5 SCOTUS Justices actually did in the 1970 Oregon v. Mitchell SCOTUS case). Futurist110 (talk) 05:51, 13 August 2020 (UTC)
 * Regrettably, I don't understand what you're getting at now. All I can say is that there's absolutely no indication that the original public meaning of the 5th Amendment contemplates repealing or eliminating the federal Constitution's natural-born-citizen clause, just as there's absolutely no indication that the same contemplates repealing or eliminating the federal Constitution's scheme for apportioning federal Senate seats. And the 14th Amendment is irrelevant to that analysis because it applies only to the states, not the federal government or federal Constitution. 199.66.69.67 (talk) 07:33, 13 August 2020 (UTC)
 * Not everyone actually agrees that SCOTUS Justices should actually be bound by original public meaning, though. Anyway, I've got another question for you: Had some US state constitution contained a state-level version of the Electoral College for choosing its governor, and had SCOTUS subsequently struck down this state constitutional provision but this US state refused to formally amend its constitution afterwards--preferring to have no governor at all than to obey a SCOTUS ruling that it perceives as illegitimate--what is subsequently going to happen? Futurist110 (talk) 19:54, 13 August 2020 (UTC)
 * This is so analogous to Reynolds v. Sims I'm just going to suggest you read that case and the aftermath. The short answer is that no, it's incredibly unlikely that such an organization at the state level being found to violate due process would likewise implicate the federal equivalent. 199.66.69.67 (talk) 19:59, 13 August 2020 (UTC)
 * I didn't actually say anything about implicating the federal equivalent here. Rather, what I was curious about is whether the US Supreme Court actually has any ways of literacy forcing US states to formally amend their constitutions to eliminate the relevant unconstitutional state constitutional provisions in such a scenario. Futurist110 (talk) 22:14, 13 August 2020 (UTC)
 * The Supreme Court wouldn't do anything. The trial court would handle most of this. And yes, it's likely that injunctive relief would lie against the state government to prohibit it from carrying out the stricken portions of the state constitution. As to an injunction to compel state legislatures to vote for something, I don't see that happening. I seem to recall reading something about that exact sort of thing being disfavored, but I don't remember if there's a name for a particular doctrine. 199.66.69.67 (talk) 23:18, 13 August 2020 (UTC)
 * So, would this state simply not have a governor at all until its constitution is formally amended, or what? Futurist110 (talk) 23:31, 13 August 2020 (UTC)
 * If there were an injunction prohibiting the election or inauguration? Then whatever the state law says happens when the office is vacant would happen. In practice no injunction would be likely to issue. 199.66.69.67 (talk) 00:19, 14 August 2020 (UTC)


 * Oh, and to look at the same situation I describe above related to apportionment issues and Equal Protection, note that the rationale under Reynolds v. Sims, which prohibits an apportionment scheme where each county in a state gets an equal number of seats in the state upper house, is well understood to have no application to the federal Constitution, which has an analogous apportionment scheme for the Senate (where each of the several States receives an equal number of seats). I see no reason why the natural-born-citizen clause should be any different. 199.66.69.67 (talk) 04:00, 13 August 2020 (UTC)
 * Isn't that because the states have some sovereignty and collectively created the federal government while counties have no existence separate from the states and can be split or merged by the state without regard to the wishes of those in the counties? --Khajidha (talk) 13:01, 13 August 2020 (UTC)
 * There's nothing keeping states from granting some sovereignty to units of local government in the same vein as a federal republic. Cf. Home rule in the United States. And after the 14th Amendment you could argue there's very little state sovereignty left anyway. But this is beside the point: That Reynolds applies to the state-county relationship but not the federal-state relationship is pretty good evidence that Equal Protection isn't grounds to nullify the natural-born-citizen clause. I mean, Arnold Schwarzenegger is free to give it a shot in the courts but I don't buy it. 199.66.69.67 (talk) 18:35, 13 August 2020 (UTC)
 * That link actually supports my point. Divisions of a state have whatever power they have only at the whim of the state government. That is not analogous to the situation with the states. The states have an existence and power of their own separate from and not dependent on the federal government. --Khajidha (talk) 20:26, 16 August 2020 (UTC)
 * Post-14A that distinction is tenuous at best. You could also argue that 9A and 11A are essentially home rule provisions. The degree of "state's rights" that exist in the United States is more or less only dependent on what the federal government permits to exist and the convention of the federal government not completely usurping local control... which is itself tenuous and complicated. Compare Wickard v. Filburn to United States v. Lopez. 199.66.69.67 (talk) 16:26, 17 August 2020 (UTC)


 * One thing to remember as well, with all of this, is that the U.S. has significant common law and case law tradition (inheriting such from British tradition), and does not have a strong Civil law system. What this means in practice is that a much greater emphasis is placed on the interpretation of legal text in courts of law in setting legal precedent (i.e. stare decicis) rather than on the text itself.  What this means for many issues in U.S. law is that, unless and until a court case exists which puts a law to the test, it is difficult to say what a law means.  The classic example is the "natural-born citizen clause" for the President, which has never been further elaborated on, and which has never stood test in a court of law.  Without a court deciding whether or not the commonly understood meaning of "natural-born" (which is to say citizen since birth), it is still an open question as to what the words "natural-born" actually mean.  -- Jayron 32 12:38, 13 August 2020 (UTC)
 * Well, that's not really at issue here. The question is whether the natural-born-citizen clause in the federal constitution could withstand an Equal Protection challenge. And naturally, that hasn't been tested, but it's really not necessary to do so to see that it's not going to work. Just as it shouldn't be necessary to find case law to show the requirement to have a driver's license to operate a motor vehicle doesn't impinge on one's right to travel. 199.66.69.67 (talk) 18:39, 13 August 2020 (UTC)


 * My own state's constitution has several bits that have been rendered inoperative: Constitution of North Carolina--Khajidha (talk) 13:01, 13 August 2020 (UTC)