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THE LAW IS A ASS for 07/30/2002
"The Law is a Ass" Installment #155
Originally written as installment # 137 and published in Comics Buyer's Guide issue # 755, May 6, 1988 issue
I owe an apology to The Toad. In this column I mock him as having, perhaps, the most useless mutant power of them all -- he can jump. But that was before the X-Menmovie and the gussied up Toad's powers and made him cool. Now he can jump, can slime you, and has a sticky tongue.
Now he's so cool, he appears...
Hey, when was the last time The Toad appeared, anyway?
THE LAW IS A ASS
Let me see if I've got this right. It's: Your wife, yes. Your dog, maybe. Your gun, never! Now how about your mutie?
I had thought it was over. I had thought; after the world saw the X-Men seemingly sacrifice themselves to save the planet, after New York City gave X-Factor a ticker tape parade; that the mighty Marvel mutant madness was over. I thought that after the Fall of the Mutants, it was going to be as acceptable to be a mutant in the Marvel Universe as it would to be a yuppie. Maybe even more.
Then I read Captain America # 343 and learned, to my surprise, that sometime when I wasn't looking, somebody snuck the Mutant Registration Act into law.
I will admit, it's possible that I simply missed it. The Mutant Registration Act could have passed in the middle of one of those multi-part epic X-Men stories, where everything starts to run together after about four issues -- the Brood storyline comes immediately to mind. But I certainly don't remember reading any story in which it was stated that the MRA had become law.
Well, now it is law. All American mutants in the Marvel Universe must register with the government or else the likes of Captain America and Battle Star will come after them, beat them up, arrest them, and force them to register.
Let us examine this law, then. First of all, I don't know what its provisions are, except for one -- that mutants register with the government much like resident aliens or persons of draftbait age. Ordinarily, this might make an analysis real brief. Fortunately, I'm a lawyer. I don't know how to make anything brief. Not even my briefs.
The first question that comes to mind is this: under what authority did Congress enact this law? The authority for the draft registration law comes from Congress's war power. The authority for a resident alien registration law comes from Congress's foreign affairs power. But in which federal power granted in the Constitution does one find the right to register mutants?
I suppose the war power could justify the law. After all, it would come in handy to have an army whose soldiers could read minds, shoot force beams out of their eyes, freeze oceans, or decipher any language or code. Thus, in order to keep track of these resources, Congress could enact legislation which required registration of the resources.
I realize that this justification is overbroad. Not every mutant would be of interest to the Army. I imagine, for example, that the recruiters couldn't get the 4-F stamp out fast enough, when the Toad came in to register. Still, there would be enough useful mutations to make the registration worthwhile.
Congress could also justify the legislation under the Interstate Commerce Clause. There is a definite mutant-phobia which runs rampant in the Marvel Universe. (You did notice that, didn't you? It's been in all the papers.) Thus, the presence of a mutant in a neighborhood could well depress the surrounding property values. When a mutant moved in, the others would move out. This, of course, would affect the movement of persons across the country, which would, in turn, affect where certain products could be sold, which would, in turn, affect interstate commerce. Ergo, a Mutant Registration Act could be enacted to control the impact on interstate commerce.
Don't laugh. It was enough to get the Civil Rights Act of 1964 passed. It would be enough to get a Mutant Registration Act of -- When, exactly, did the thing pass, anyway? -- passed as well.
So Congress probably does have the authority under some granted federal power to enact the MRA. The next thing to consider is, does Congress have the right to pass the MRA? In other words, does the MRA impact on the constitutional rights of a cognizable and easily defined minority group? In other, other words, is the MRA constitutional?
The MRA does impact only on a cognizable and easily defined minority, mutants -- some, like the porcupinesque chap being arrested in Captain America # 343, being more recognizable than others. No one else is required to register. Moreover, forced registration does infringe on a mutant's right of privacy. Not every mutant wants that fact to be known. Some would rather hide, which is sometimes understandable. After all, if you had the mutant ability of being able to jump real high would you put on a leather jerkin and leotards and call yourself the Toad, or would you keep it a secret and maybe try out as a rebounder for the NBA?
The Mutant Registration Act, then, does have the effect of abridging the rights of a cognizable minority. As such, the law might well be unconstitutional, because it denies mutants equal protection under the law. In order for the law to pass constitutional muster, Congress must be able to show that whatever deprivation of rights which occurs is outweighed by a compelling state interest which justifies the law.
In this, Congress caught a break. The deprivation of rights of a registration act is slight. Mutants, like resident aliens, will have to go to their local post offices, wait in line while the clerks decide if this is one of the afternoons they're shut down as a cost-cutting mechanism or how much they want to raise first class postage, then sign some registration form telling the government who they are, what they can do, and where they live. The intrusion into their rights is minimal.
As I said, it is fortunate that the intrusion is minimal, because that means the compelling state interest doesn't have to be more than minimally compelling. Congress might have a real problem finding a compellingly compelling state interest to justify the intrusion.
The main reason behind registering mutants is fear. It's insuring that the government can keep track of mutants so that it can also keep homo superior from taking over the world from homo sapiens. That, anyway, is what we always read in the comic books.
Mutation, however, is a fact of life. Perhaps to some, a disagreeable one like crabgrass or new McDonald's Land characters, but a fact of life nonetheless. It is an essential part of the evolutionary process. Everyone is going along just fine being exactly like everyone else. Then a mutant comes along with a new trait, and if that trait is enough of an improvement over the mutant's unimproved predecessors, eventually the trait becomes a dominant trait instead of an isolated one. That's evolution.
For the government to say it wants to keep homo superior from taking over, then, is the same as the government saying it wants to stop evolution. Creationism notwithstanding, I don't think that Congress could actually posit halting evolution as a compelling state interest.
Another equal protection problem that the Mutant Registration Act creates is, why is the act limited to mutants? If the law is to keep track of extra-powered individuals so that they can be drafted, or so that their movement doesn't impact on interstate commerce, or so that they don't take over the world from non- powered individuals, why are only mutants being forced to register?
Why isn't the Fantastic Four or Spider-Man being forced to register as well? One would think that super-powered persons who got their abilities far beyond those of mortal men from some accident would be of as much interest to the government as a mutant. Actually, one would think they would be of more interest than mutants, as the government could try to duplicate the accident and create more of them for the military. (Although, I imagine some accidents would be harder to duplicate than others. (Private, I'm ordering you to let this radioactive cobra bite you. It's for science.)
As long as only mutants are being singled out, they can argue that the MRA impacts on them unfairly and try to have it declared unconstitutional.
Another argument which mutants could raise, if they wanted to challenge the law is to point out that it does not bear any rational relationship to what it is supposed to accomplish. The MRA is, whether Congress is willing to admit it or not, an attempt to control the proliferation of extra-powered persons. There is, however, a better way to accomplish this goal.
It has been established that almost everyone in the Marvel Universe has an unusually high susceptibility to atomic radiation. How many rads do you think could have been in the bite of one little, irradiated and dying spider? Probably less than leaks out of your average color TV set. Yet it was enough to give someone the proportionate strength of a spider, agility, spider sense, and real sticky digits.
With this degree of susceptibility to radiation already in evidence, the Marvel Universe Congress shouldn't bother registering mutants in order to control the proliferation of super-powered persons. It should eliminate all low-level sources of radioactivity.
The Marvel Universe Congress should, first, outlaw radium dials on watches.
BOB INGERSOLL, comic fan, attorney, and legal analyst here in dot.com land wants to take this opportunity to register his mutant ability -- the ability to be mistaken as a sales clerk no matter where I go. It's true. Any store I'm in, no matter what I'm wearing -- even if it's a dirty T-shirt and cut-off denim pants which no store would allow its employees to wear -- and no matter what I'm doing -- usually looking on the shelves in a futile effort to find something, which is something no clerk would do; some other customer always comes up to me and asks me where he or she can find something.
Like I said, the mutant ability always to be mistaken as a sales clerk.
Maybe I was too hard on the Toad. Maybe he doesn't have the worst mutant ability in the world, after all.
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