by James Daily
The Keene Act outlawed vigilantes known as “costumed adventurers” in the Watchmen universe. Like many emergency laws, it was of questionable effectiveness. Alan Moore et al., WATCHMEN 4 (DC Comics December 1986).
Congress’s spending power, 29 which is very broad, 30 can be used to force states to pass laws that the federal government couldn’t pass itself by threatening to withhold federal funding.31 For example, the federal government does not generally have the authority to set speed limits on nonfederal highways or set the drinking age—the Twenty-First Amendment is explicit about that last one—but it can tie federal highway funding to states setting speed limits in compliance with federal guidelines.32 The spending power is general enough that it could address this issue, but the Keene Act seems to be a self-contained piece of federal legislation, not a coercive act designed to prompt action by the states. So while Congress could use the spending power to require the passage of state-level costumed adventuring bans (by, for example, threatening to withhold law enforcement funding), that doesn’t seem to be the approach used in the Watchmen Universe.
Another route to making something a federal crime is to limit it to cases in which the federal government has jurisdiction, e.g., cases involving federal land, property, or employees. But the Keene Act applied to everything, not just costumed adventuring in federal parks and the like. No, we must go big, and that means the Commerce Clause.
The Commerce Clause allows the federal government to “regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes,”33 and it is the mainstay of modern congressional authority. Although it does have some limits, 34 the scope of the Commerce Clause has expanded greatly over the past century, beginning with the New Deal and continuing on through the Civil Rights era and modern federal regulations. Social Security, Medicare, most of the federal regulatory agencies, federal trademark law, and many federal civil rights and antidiscrimination laws are all founded on the Commerce Power. If anything could form the basis of the Keene Act, it’s the Commerce Clause.
In this case we’re concerned with regulation of interstate commerce (meaning, commerce “among the several States”). The Commerce Clause allows the federal government to regulate the channels of interstate commerce, the instrumentalities of interstate commerce, persons, or things in interstate commerce, and activities that substantially affect interstate commerce.35 Of these, the third is the best bet for supporting the Keene Act.
Specifically, there is an interstate market for crime prevention and investigation services (e.g., private security firms, private investigators, bounty hunters). Firms and individuals involved in this market routinely work across state lines. The Keene Act could require, for example, that anyone working in such a market do so under his or her real identity. The legitimate government interest would be the safety of consumers of such services; it is important for consumers of such services to know whom they are dealing with.
The fact that costumed adventurers sometimes provide their service for free and often without contracting with clients is of no account, as is the fact that they may work only within one state. The Commerce Clause extends to noncommercial transactions and even intrastate activities as long as doing so is necessary to make the interstate regulation effective.36 If the local or noncommercial activity affects the interstate market, the Commerce Clause can reach it.37 The existence of costumed adventurers who work for free no doubt affects the market for regular security firms, private investigators, and bounty hunters. If the aggregate impact on the market is substantial or significant, then that is enough.38 So invoking the Commerce Clause may work.
But federalism isn’t the Keene Act’s only hurdle. By prohibiting certain kinds of clothing in certain situations, the Keene Act implicates the First Amendment, which, among other things, grants the right to freedom of speech. Specifically, wearing expressive clothing has been held to be a form of speech protected by the First Amendment.39 Speech can be found where “[a]n intent to convey a particularized message was present, and the likelihood was great that the message would be understood by those who viewed it.”40 A superhero’s costume conveys the message of the identity of the wearer. There is also a First Amendment right to anonymous speech, which may protect the wearing of identity-concealing costumes, at least under certain circumstances.41
The government can regulate speech, although only under narrow circumstances. There are two major kinds of speech regulation: content-based and content-neutral. Content-based restrictions (e.g., “you can’t say that”) must be narrowly tailored to serve a compelling state interest.42 In practice, content-based restrictions are rarely upheld by federal courts. Content-neutral restrictions (e.g., “you can say that but not here, right now, or at that volume”), on the other hand, are subject to a slightly more relaxed standard. Also called “time, place, and manner restrictions,” these laws must be “justified without reference to the content of the regulated speech,…narrowly tailored to serve a significant governmental interest, and…leave open ample alternative channels for communication of the information.”43
A ban on costumed adventuring seems more like a content-neutral regulation than a content-based one. After all, the Keene Act does not ban the wearing of costumes but rather the wearing of costumes while fighting crime. The justification for the law does not depend on the content of the speech (i.e., the superhero alter ego expressed by the costume) but rather the need to be able to identify and prosecute criminals. Preventing crime is certainly a significant governmental interest, 44 and many costumed adventures in Watchmen—such as Rorschach—had become anonymous criminals, so a ban on costumed adventuring would serve to prevent crime. And the Act does not prevent alternative channels for communication of the information, such as Halloween parties or even walking down the street.
Furthermore, at least one real-life law banning the wearing of identity-concealing masks has been upheld.45 The Second Circuit—including now–Supreme Court Justice Sotomayor—noted “the Supreme Court has never held that…the right to engage in anonymous speech entails a right to conceal one’s appearance in a public demonstration. Nor has any Circuit found such a right.”46 A court could find that costumed adventuring is similar to a public demonstration, and so there is no right to anonymous crime fighting.
The Superhuman Registration Act and the Draft
The Marvel Universe also has a version of an act like the Keene Act. In its 2006–2007 Civil War storyline, Congress finally passed a version of the long-rumored Superhuman Registration Act (“SHRA”). Unlike the Keene Act, the SHRA did more than ban unauthorized superheroes; it requires that superpowered individuals register with the government and, if asked, serve as a superhero on behalf of the government. Could Congress do this?
This will be the last sensible thing Tony Stark says for almost two years. Brian Michael Bendis et al., NEW AVENGERS: ILLUMINATI (Marvel Comics 2008).
The Constitution empowers Congress to “raise and support Armies,…to provide and maintain a Navy; to make Rules for the Government and Regulation of the land and naval forces.”47 In other words, Congress has the power to raise armed forces for the national defense, and there is very little limit on its powers in this area. So if, as is sometimes indicated in the comic books, the SHRA was intended to form a kind of special branch of the federal armed forces, under the auspices of S.H.I.E.L.D. or something else, Congress has a lot of authority here. It certainly has the ability to authorize and fund a superhuman branch of the military.
But does it have the ability to force superhumans to register and work for the government? Maybe. Conscription is not directly addressed by the Constitution, but it has long been held that conscription is part of Congress’s power to raise armies, and the Supreme Court tends to make unusually strong statements of congressional power when faced with this particular issue.48 As John Quincy Adams said in a speech before the House of Representatives, “[The war power] is tremendous; it is strictly constitutional; but it breaks
down every barrier so anxiously erected for the protection of liberty, property and of life.”49
But while the power of Congress to draft people into the armed services is generally beyond question, the power of Congress to draft specific individuals is something different. For the most part, since World War II the draft has basically applied to all men equally. Prior to World War II, there was significant class discrimination, most exemplified by the paid substitute system of the American Civil War. But directly targeting specific individuals raises due process implications far beyond the skewed drafts of the nineteenth and early twentieth centuries. The draft is a pretty huge imposition upon civil rights, and while it is an imposition Congress is permitted to make, the Supreme Court might balk at permitting Congress to go so far as to shed even the pretense of fairness.
The Thirteenth Amendment, which prohibits involuntary servitude, is perhaps the most obvious potential constitutional issue with the draft, but the federal courts have unanimously and consistently held that it does not limit the draft power at all: “[T]he power of Congress to raise armies by conscription is not limited by either the Thirteenth Amendment or the absence of a military emergency.”50
Similarly the federal courts have held that the First Amendment’s protection of religious belief is no barrier to the draft. Conscientious objector status is the product of statute, not the Constitution: “The conscientious objector is relieved from the obligation to bear arms in obedience to no constitutional provision, express or implied; but because, and only because, it has accorded with the policy of Congress thus to relieve him.”51 In other words, conscientious objectors don’t have to serve in the armed forces, not because the Constitution says so, but because Congress has passed a law to that effect. If Congress wanted to, it could conscript everyone, regardless of any religious or moral objection.52 It’s unlikely it would do so given that it would likely lead to civil disobedience, but it’s a theoretical possibility. The Court has listed a whole host of constitutional rights that may be superseded by the war power, culminating in “other drastic powers, wholly inadmissible in time of peace, exercised to meet the emergencies of war.”53
However, this is still an untested area of law, because as far as we can tell Congress hasn’t actually tried to do this, there being no compelling reason to use the draft power this way. The only times a draft has been imposed have been in times of incredible demand for manpower—it is a drastic step, after all—so going after a handful of specific individuals wouldn’t make sense in the real world. In the case of superheroes, however, it may well be that the courts would permit such an action, as the draft power is pretty sweeping, and the courts have not really displayed any willingness to limit that power before. If Congress thinks it needs the assistance of a uniquely capable citizen, the courts would most likely not object.
Mutants and Civil Rights
Although most superheroes and supervillains have unique origin stories, the mutants of the Marvel Universe all share a common origin: the X gene mutation. This common origin has made mutants a frequent target of discrimination in the Marvel Universe since the 1960s, sometimes at the hands of the government and sometimes at the hands of private actors. The X-Men have struggled against this discrimination in many ways, but could strategic civil rights lawsuits have prevented many of these problems? There are two major constitutional arguments that would likely be raised in a mutant rights lawsuit: equal protection and substantive due process.
The Equal Protection Clause of the Fourteenth Amendment
The Equal Protection Clause of the Fourteenth Amendment states, “No State shall…deny to any person within its jurisdiction the equal protection of the laws.”54 As the Supreme Court has explained,
Sentinel robots are often used by the government to capture or kill mutants. David Hine et al., CIVIL WAR: X-MEN 1 (September 2006).
The general rule is that legislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest.…The general rule gives way, however, when a statute classifies by race, alienage, or national origin. These factors are so seldom relevant to the achievement of any legitimate state interest that laws grounded in such considerations are deemed to reflect prejudice and antipathy—a view that those in the burdened class are not as worthy or deserving as others. For these reasons and because such discrimination is unlikely to be soon rectified by legislative means, these laws are subjected to strict scrutiny and will be sustained only if they are suitably tailored to serve a compelling state interest.55
This strict scrutiny standard is the highest standard used by federal courts when evaluating legislation.
The Court has also held that other classifications (e.g., sex and legitimacy of birth) are subject to a lesser standard called intermediate scrutiny.
[W]hat differentiates sex from such nonsuspect statutes as intelligence or physical disability…is that the sex characteristic frequently bears no relation to ability to perform or contribute to society. Rather than resting on meaningful considerations, statutes distributing benefits and burdens between the sexes in different ways very likely reflect outmoded notions of the relative capabilities of men and women.…Because illegitimacy is beyond the individual’s control and bears no relation to the individual’s ability to participate in and contribute to society, official discriminations resting on that characteristic are also subject to somewhat heightened review.56
“So far, so good,” you may be thinking. After all, discrimination on the basis of mutant status is often based on “prejudice and antipathy” and unlikely to be rectified by legislative means because mutants are such a small minority. Or, at the very least, mutant status is “beyond the individual’s control and bears no relation to the individual’s ability to participate in and contribute to society,” at least inasmuch as many mutants are equal to or superior to typical humans when it comes to their ability to function as citizens.
Pixie is attacked by members of the Hellfire Cult in an example of violent anti-mutant prejudice. Matt Fraction et al., All Tomorrow’s Parties, in UNCANNY X-MEN 501 (Marvel Comics August 2008).
Alas, it is not that easy. All forms of discrimination are not created equal. Certain classifications protected by the text of the Constitution itself—race, national origin, and religion 57—are subject to “strict scrutiny,” meaning that the courts look very, very closely at anything that is even suspected to discriminate on those bases. When the courts apply strict scrutiny, they will strike down any law that is not absolutely necessary to achieve a compelling state interest and actually advances that interest. Once a court decides to apply strict scrutiny, it is almost a foregone conclusion that it will wind up striking down the law in question.
Some classifications are “quasi-suspect,” in that while the Constitution does not provide explicit protection, they are similar enough to suspect classes that the Constitution implicitly provides similar, albeit reduced, protection. Quasi-suspect classes include biological sex, citizenship status, and legitimacy of birth. 58 Discrimination on the basis of a quasi-suspect class receives what is known as “intermediate” scrutiny by the courts. Intermediate scrutiny requires that the courts strike down any laws that do not serve a compelling state interest and are at least substantially related to the interest. This is a more relaxed standard than strict scrutiny, and cases go both ways here.
But every other classification is subject to mere “rational basis” review. Here, the government just has to show that the law in question is rationally related to some state interest. The interest doesn’t have to be particularly important, and the relationship between the interest and the law doesn’t have to be particularly close. In fact, the interest in question doesn’t even have to be the one the legislature had in mind; “any conceivable rational basis” will do. 59 As one might imagine, it is very rare for the courts to strike down a law using rational basis review, but it is not unheard of. 60
Turni
ng specifically to the question of mutation, discrimination on the basis of mutation is a relatively new phenomenon, only a few decades old, in marked contrast to discrimination on the basis of race, national origin, religion, gender, etc. 61 A court may be unwilling to conclude that legislative means of rectifying the problem will prove inadequate without giving the issue more time to develop. Second, from a legal perspective mutation could indeed bear a relation to an individual’s ability to participate in and contribute to society. For example, one could easily imagine jobs that particular mutants could do much better than a typical human. 62 Let’s continue with the Cleburne case for an example of the Supreme Court declining to grant heightened protection to a class and see if mutation fits the mold.
The Cleburne case was about discrimination against people with mental disabilities; the City of Cleburne had an ordinance that required a special zoning permit for the operation of a group home for the mentally disabled. The Fifth Circuit held that mental disability was a quasi-suspect-classification due at least some heightened scrutiny, but the Supreme Court disagreed. First, it held that mental disability was a highly variable condition requiring carefully tailored solutions not befitting the judiciary. 63 Second, it held that cities and states were addressing mental disabilities in a way that did not demonstrate antipathy or prejudice. 64 Third, the existence of specific legislation indicated that the mentally disabled were not politically powerless. 65 Fourth, if the Court recognized mental disability as a suspect class it would have to do the same for
