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THE LAW IS A ASS for 03/21/2000
"The Law is a Ass" Installment # 36
Originally written as installment # 26 and published in Comics Buyer's Guide issue # 552, June 22, 1984 issue
Some days I'm not as smart as I make myself look. Some days I can't even manage the look.
When I wrote this column originally back in 1984, Earth-1 had no law regulating super-hero activities or one to assist them in said activities. Now it does. Sometime some DC writer--I think, maybe it was John Ostrander, but I'm not sure--decided that Congress in the DCU would feel the need for such a law, so wrote that Congress in the DCU had passed something called the Keene Act. The Keene act was Congress's attempt both to regulate and to assist super-heroes. Later, as a joke, another DC writer threw a line into a story that the DCU Congress had grafted a so-called Ingersoll Amendment onto the original Keene Act. I wish I could say that I accurately predicted this bit of legislation--so as to be deserving of my own, personal amendment--when I wrote this column dealing with how Congress on Earth-2 could have passed a similar law regarding the Justice Society.
That's not the case. Instead, when I revised this column for publication here, I added a new section at the end to offer my explanation about what authority Congress could use to justify the Keene Act. How a law about super-heroes fell into one of the enumerated federal powers as laid out in the Constitution.
Had I thought of it back then, which I didn't, I would have written about it and looked like a prognosticating genius. But I didn't and I didn't, idiot that I am! So now I've added the explanation of the Keene act, after the fact. It seems that, unlike me, my hindsight doesn't need glasses.
"The Law is a Ass"
Installment # 36
The FBI came for Lois Lane at 6:57 p.m., just as the CBS Evening news was ending. The arrest was without incident; Lois was handcuffed and led out to the waiting unmarked car, before station identification could even began its assault on the senses.
Lois, ace reporter that she was, asked a barrage of questions, most of them a variant of on what charge she was being arrested. She complained frequently that as a member of the Fourth Estate, she was protected by the First Amendment. The G-Men only laughed. Not revealing a source wasn't even close to the charge she was being arrested on.
Lois's trial was, if anything, even quicker than her arrest--quicker even than the constitutional right to speedy trial could have envisioned. Yet it was scrupulously fair. The evidence left no doubt that Lois had willfully violated a federal law and was guilty.
The judge sentenced Lois to the minimum penalty possible. Her past exemip1ary behavior had had some effect. Lois served her term in a federal prison for women along with kidnappers, bank robbers, and even those most vicious of criminals, post office pens pilferers.
Lois served her sentence with dignity. When she was released, with time off for good behavior, she never repeated her crime. She never again tried to unmask Superman.
Since when is unmasking Superman a federal offense? Since Infinity, Inc. # 5. It's right there in four color and white on page 4, panel 5. Several members of the JSA have fallen into the Stream of Ruthlessness--which sounds like something from a mean-spirited William Faulkner novel--and are lying catatonic, and presumably dead, in the small town of Fall Springs, Colorado. The local constabulary complains that their efforts to identify the deceased are being hampered by the fact that, "the Feds gave the JSA special status years ago, so it's even against the law to unmask a hurt or deceased JSAer, without first wading through enough red tape to choke a horse." (Which brings up the question: why would anyone wish to incur the wrath of the ASPCA by committing so unseemly an act of equidae mistreatment?)
(Forgive me, I've been psyching myself up for Star Trek III: The Search for Spock.)
Actually a couple of other questions crossed my mind. Like under what authority did Congress Earth-Two pass such a law and does Earth-One have a similar law?
Despite what you may think, Congress can't just pass any silly old law it wants to pass. The Constitution limits the number of silly laws Congress can pass to ten per year. Or one hundred eighty nine silly laws, if it's time to revise the income tax again.
Actually, what the Constitution does do is limit Congress's authority to enact laws to a few certain areas, which are considered the province of federal legislation. The rest of the legislating is reserved to the states as part of the States' Rights package that came bundled with the Bill of Rights, like Microsoft Word on a new computer; except, of course, that the Bill of Rights actually does its job.
When the Constitution was drafted, our founding fathers were leery of granting too much power to one centralized body. Remember, they had just revolted against another form of centralized power and didn't want to invite more of the same. I mean, what's the point of having a political party, if you can't invite only who you want? So the drafters of the Constitution created a system of checks and balances. Contrary to popular opinion, checks and balances has little to do with the federal budget, which, unfortunately, is usually a system of writing checks with insufficient balances. Rather checks and balances is a method of spreading power around several different governmental bodies, like mulch in the spring; although mulch usually gives less malodorous results. Checks and balances gives some power to the Legislative Branch, such as the power to enact laws, then gives the veto power to the Executive Branch as a form of check on the Legislative. It gives the power to appoint and approve judges to the Executive and Legislative as a check on the Judiciary, which, in turn, has the power to declare laws and orders drafted by the Legislative or Executive Branches unconstitutional. It reserves any power not specifically named by the Constitution to be a federal power as a state power, to give them a check and balance on the federal government. And, finally, it even gave we citizens a degree of check and balance on the government, when it created C-Span, which allows us to watch them in action, so that we will know exactly what they're up to. C-Span didn't really help, but at least all that hot air is cutting down on our fuel bills and, of course, before C-Span, when we wanted to keep up with the latest on Iran-Contra, we had to watch Let's Make a Deal and The Price is Right.
As I said, the concept of States' Rights holds that one of the checks placed on Congress was only granting it the authority to pass legislation in certain limited areas and reserving the rest of the legislative authority to the state What this means is Congress has the power to pass laws governing things like interstate commerce, international affairs, federal taxation, wars, and regulating the military. The real list is longer and can be found in Section VIII of the Constitution. Basically the list of Congressional authority is as follows: taxing power, borrowing power, spending power, regulation of interstate and international commerce power, creation of naturalization and immigration laws power, coining money power, establishing penalties for counterfeiting money power, establishing post offices power, creating patent and trademark laws power, creating federal courts power, punishing piracy on the high seas power, declaration of war power, raising and supporting armies power, providing for calling out the militia power, governing the District of Columbia power, and puppy power. This last one is sometimes called the power to make all laws necessary and proper to carry out the foregoing enumerated powers. That's the whole list. Bet you didn't know we were going to return you to high school Civics, did you? (Neither did I, until I remembered I'm paid by the word and there's no better source of excess words than quoting some federal document.)
Any power not in the above list is beyond Congress. If Congress cannot justify a law it wants to pass under one of the above powers, the law is outside its Congressional authority and is unconstitutional. That means the law is no good and is stricken from the books.
Now it makes sense for Congress to pass a law forbidding the revelation of JSA secret identities. After all the good people of Castle Rock, Maine, population 5,387, until Joe Camber's big dog went loco back in 1980, aren't going to sit down at their town meeting and worry about the JSA. "Say the JSA is gettin' around a lot nowadays. Mebbe we should pass a law or sumptin' makin' it illegal to take their masks off. After all they're good people, and we don't wanna make it harder for 'em, if they ever come down Maine." No, most small communities wouldn't bother passing such a law. (Yes, I know Gotham City has some law forbidding anyone else from dressing up like the Batman. That's different. The Batman is from Gotham City, so it has more of an interest in passing the silly thing. Also, it's not a law making it illegal to take The Batman's mask off, but for anyone else to wear one. Finally, I'm sure the Ben Cooper Costume Company got it declared unconstitutional before Halloween rolled around.)
If such a law forbidding the unmasking of the JSA were to be passed, Congress on Earth-Two would be the ones most likely to pass it. The problem was, under which of the enumerated legislative powers did Congress justify its law? Because, if Congress couldn't justify it, under one of those enumerated powers it is unconstitutional and cannot stand.
Let's go over the powers again. The power to tax. No I don't think unmasking super heroes falls within the dictates of revenue creation. JSA stories might, at times, have been taxing, but its members do not collect the taxes. The power to borrow spending money? Again no, unless Congress borrowed from Louie the Loan Shark and wanted some strong-arm of it's own to get relief from that ten-percent interest compounded daily. Regulation of interstate commerce? Doubtfu... Well, there are possibilities there, so I'll get back to it later. Coining money and regulating counterfeiting? No, not even if we're dealing with counterfeit Miraclo pills. Naturalization and immigration laws might affect Superman or Wonder Woman, but not the natural-born JSAers. This one is also no. Establishing post offices? Don't be silly. Creating federal courts? Punishing piracy? Governing the District of Columbia? No, no, and no.
Okay, maybe punishing piracy on the high seas. If Black Canary breaks a few windows with that sonic scream of hers, they might want to punish her for her high Cs. Oh, and if the JSA were to go after pirates who were plaguing the shipping lanes, Congress might want to pass a few laws to help them.
But the federal power that was most likely the one use to justify a law forbidding the unmasking of JSA members is the one generally called the "War Power," that is the power to declare war, to create the army or call out the militia for national defense. During World War II the JSA and/or the All-Star Squadron was vital to the defense of America from super-powered Axis agents. Indeed, in All-Star Squadron # 1, FDR himself mobilized the JSA into a super-powered domestic defense squadron; an all-powerful militia, if you will. Now isn't it likely that Congress decided to help this new super militia by insuring that their highly vaunted secret identities would remain highly vaulted secrets, so that the mystery men could continue their fight in defense of America in secret? Of course it is. And what better way to insure the secret identities, that to make it a federal offense to unmask a JSA member.
Under that justification the law would stand up as a "necessary and proper" exercise of Congress's War Power. The law against unmasking a JSA member would stand.
Now let's go back to my second question: is there such a law on Earth-One? For a long time there wasn't. I'd certainly never heard of one. Neither had any other long-time comic fan, I've talked with. I could only conclude that there isn't. Why not?
Remember that on Earth-One the super heroes didn't come into existence, until after World War II. The JLA, the Teen Titans, the Outsiders, and even the Inferior Five have never been a vital force to America's domestic defense, because America has never been at war during their existence. For this reason, it is not as likely that Congress on Earth-One would view an anti-unmask law as being a proper exercise of its war power, so never passed the same law.
But that, was the saying goes, was then. This is now. Except that by the time you read it "now" has become "then" and we need a new "now." And, of course, we'll need yet another "now" as soon as the new "now" becomes "then." So rather than get trapped in the here and now of now and then, let's move on. Sometime back, some clever writer at DC decided that a similar law was needed for the Justice League and Earth-1. So this writer dropped a throw-away line into a story about the Keene Act, a Congressional act which was passed both to regulate and to assist super-hero activities. Some time later, another writer mentioned that the Keene Act had something called the Ingersoll Act, which refined how super-heroics was to be regulated and assisted.
But how could Congress enact the Keene Act? Would the War Powers justify the Keene Act? Probably not. The War Powers Clause probably couldn't be used quite so expansive as it was during an actual war But there are ways and there are ways.
There is, for example, the Interstate Commerce Clause. See? I said, I'd get back to it and here I am, back to it. After all, what kind of writer would I be if I failed to live up to the standards of another famous writing Robert by forgetting that I have promises to keep?
Since World War II, interstate commerce has boomed. We already had transcontinental railroad systems which were good. Then it got better. First the Interstate system of highways which stretched across the country like a concrete network drastically reduced both the time and expense of shipping by overland carrier. Order something from a catalog and a big brown UPS truck could have it at your house within a week. Then shipping by air became more practical and faster. Now order something by catalog and it can be at your house overnight. Don't like thick mail-order catalogs cluttering up your mail box and herniating your postal carrier? The Internet has web pages were you can buy virtually anything, including anything virtual. As long as you're willing to enter your credit card on a web page, you can buy anything you want over the web and the above-mentioned shipping options are available for fast delivery.
Interstate commerce hasn't just become a way of life, it is life to this country's economy. If it were to fail, so would the economy. It's that simple.
So, it stands to reason that Congress would want to keep a sharp eye on interstate commerce and regulate anything that might hinder it. Or, on the flip side, assist anything that might help promote interstate commerce. Like super-heroes.
You have a little matter of the Matter Master hijacking Roadway trucks? Not as long as Hawkman is given easy FAA clearances to fly the skies without interference. Weather Wizard threatening to fog in airports and ground Fed Ex flights? No problem. Just exempt the Flash from that annoying double nickle speed limit and he can absolutely, positively solve the problem overnight. The Prankster clogging up the phone lines with prank phone calls? Why do you think Congress gave Superman that special green card?
In other words, in a world where the Royal Flush Gang could flush interstate commerce down the interstate commode, it would make sense for Congress to use its power to regulate interstate commerce in such a way as to remove the obstacles the super-heroes who fight the super-villains might otherwise face. So, yes, the Keene Act was enacted on Earth-One based on the Interstate Commerce Clause. And now you know how.
I hope that answers all your questions. Be sure to be here next column, when I'll explain why it's illegal to hunt Hawkman out of season.
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