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THE LAW IS A ASS for 09/25/2001
DOCKET ENTRY
"The Law is a Ass" Installment # 103
Originally written as installment # 103and published in Comics Buyer's Guide issue # 696, March 20, 1987 issue
Wow that little throw away joke about Qurac proved prophetic didn't it? (For those who don't remember, Qurac was DC's resident Middle-East bad guy country. (Back then it was short hand for Iran.) But it was very overused in the 80s so I quipped that I'd like to a little less of it. And not too long after I wrote this column, Cheshire nuked the entire country into nothingness.
It was the first of many. Recently, DC has been doing that a lot sort of wholesale destruction. They nuked Qurac. Destroyed Coast City. Nuked Fawcett City. Nuked Topeka, Kansas. With all the particulate matter that has to be in the atmosphere of Earth DC from all the buildings leveled by this destruction, the planet would have gone into such nuclear winter that Siberia would be the Yuletide vacation Mecca.
Hey, do you suppose if I include a throwaway line that I'd like to see less of this wholesale destruction, they'd nuke the nuking?
******
"The Law is a Ass"
Installment # 103
by
Bob Ingersoll
Remember when I wrote about that presidential edict banning super-heroics from the Legends mini-series? Remember how I said that the President didn't have the authority to issue such an edict, so it was about as useful as a smile for an umbrella? Remember how I then postulated the existence of a congressional act, which gave the President such authority and concluded there must have been such an enactment, even if we were never told about it, because only that would explain the president's callous abuse of power? Well, there was indeed such an act, the Keene Act, passed by Earth DC's men in D.C. back in 1961. Why the Keene act was even amended back in 1972.
You'd think I would have remembered the thing. After all, according to a recent comic book, the 1972 amendment I talked about was the Ingersoll Amendment, so, apparently, I wrote the darn amendment! (Or course, it was my Earth-Two version. I wasn't practicing law in 1972 in my Earth-One version.)
Of course the comic book I was talking about was Suicide Squad # 1; the spin-off from Legends. How many other books do you know of that talked about the Keene Act and the Ingersoll Amendment? (Cute, John Ostrander, you've made me a judge in Cynosure and now a Congressman. Just for that I'm going to say nice things about Suicide Squad!)
Really I am. I liked the book. I thought the handling of the basic premise and characters (think high-concept, Superman meets The Dirty Dozen) was much better than when the team debuted in Legends. And the characters were fleshed out more fully than I've ever seen them before. (Incidentally, the cover indicates that one of the Squad is going to die, before this story is over. Can I put in my request for Captain Boomerang now?) I am, however, bored with where the Suicide Squad went on its mission this issue: DC's ubiquitous Middle East bad guy country, Qurac. It's been overused, so I hope we won't be seeing it a lot.
What I want to do now is to explore the Keene act and the Ingersoll Amendment. I want to outline some of the provisions the law probably has, so that DC writers who intend to use it will have some idea what it does.
First, we need to know what authority Congress used to enact it. After all, Congress can only act in those areas specifically granted to the federal government by the Constitution. Well, one of the powers granted to Congress was the ability to regulate interstate commerce and to pass any law "necessary and proper" to said regulation. The Commerce Clause has been given some broad interpretations in order to justify certain acts. Congressmen feel that anything which might impact on interstate commerce is something it can regulate under the Commerce Clause. And to Congress's mind, that's just about everything. (Pushy ain't it?)
The Interstate Commerce Clause (or ICC as we in the legal business, who give everything such complicated names our alphabet soup comes out in acronyms, call it) was used to create the national minimum wage on the theory that workers build, ship, and buy the goods in the interstate market so their salary level was subject to regulation. Congress also used the ICC to regulate loansharking activities, partially because such activities had a direct effect on the interstate transactions of organized crime, which, after all, is an interstate enterprise. Hell, Congress even stretched a point once and used the ICC to regulate commerce.
People might want or not want to move into areas which are frequented by super-heroes and/or villains. Probably, they go with "not want to" as home owners usually find by such annoyances as disabled quinnjets crashing into their living rooms bothersome. Therefore, the presence or absence of super-powered individuals will have a direct effect on the movement and living patterns of persons across the entire country. (Would you willingly live next to the Four Freedoms Plaza knowing the constant take-off of rocket ships and FantastiCars will keep you up at night and if the Negative Zone breaks containment again, finding just roaches in your kitchen would be the least of your worries?) People not wanting to live where super-heroes or villains live will, in turn, have an effect on interstate commerce. Remember where people move--or don't move--impacts on where goods can and can't be sold. Under the Commerce Clause the federal government would have the authority to enact legislation designed to deal with, "the problems caused by such super-powered beings."
The first thing we know the law did was give the President the authority to ban super-heroics in the event of a national emergency. This gives the government to power to control the super-heroes, if things get out of hand. While on the surface this seems to be a wise provision, and one I'm sure Congress would include if we had super-heroes on our Earth, I'm not so sure of its wisdom. The President bans all super-heroics and the heroes all obey. The super-villains aren't going to follow suit. Think about it. These guys think nothing about robbing and mayhem. Do you think they're going to stop for some Presidential edict? Or to use the buzz words of a powerful lobby group, if super powers are outlawed, only outlaws will have super powers.
Another thing we know about the act is it gives the federal government the authority to build federal prisons specially designed for incarcerating super-villains from all fifty states, so the states send their super-baddies to this federal pen, even for state offenses. This provision makes sense. Most citiesare deprived; they don't have super-villains. Their jails aren't equipped to house inmates with super-powers. Only federal pens specifically designed for the task are likely to be adequate.
The act permits the federal super-penitentiaries to take extra security measures designed to control their super-inmates, even if these measures impact on the constitutional provision against cruel and unusual punishment. Again a sensible provision. It doesn't do much good to put Mindboggler in the slammer, if she can use her illusion power to escape. Some statutory leeway permitting the guards to keep her drugged or otherwise unable to use her power--a bullet in the brain might be nice--is a necessity. I have conjectured in columns past why such provisions probably don't violate the constitutional rule forbidding cruel and unusual punishment, because of the compelling state need to keep super-villains incarcerated. I will not repeat the reasons I came up with, I'll let you look them up in your back issues of CBG. (And if you don't have your back issues of CBG, I've got a basement full of back issues I'm trying to clean out.)
The Keene Act should permit those states that happen to have super-power-proof prisons to house inmates for other states that don't, for much the same reasons that the Feds can do it. New York, either the state or city, is far more likely to have facilities for handling super-villains than Alaska. But it gives Alaska somewhere to send Crazy Cariboo or Tundraa or Pipeline, or some other such Alaska-motifed villain who may pop up on the scene.
In much the same way, the law, no doubt, provides for the Federal government or those states with mental institutions equipped for super-villains to care for the criminally insane from the states who don't have such institutions. This explains why Arkham is the only institution for the criminally insane we've seen in Earth DC, and why every nutty DC villain is there. (Even the ones who aren't nutty like Penguin.)
Another provision the act might include is the law Roy Thomas created for the JSA which makes it a federal offense to unmask a super-hero. This would explain why the Flash wasn't unmasked, when he was arrested. (Actually, it wouldn't, but I was so hard on The Flash just before it ended, I thought I'd try to give it a break.) It would also explain why super-heroes don't have to reveal their real identity when testifying in court. Of course, there are problems with the constitutional right to confront one's accusers inherent in a law allowing masked witnesses. I'll leave it to the Supreme Court of Earth DC to figure out why the law doesn't violate the Constitution. That's what they're paid for.
The law might also ease the naturalization process for the various extra-terrestrial super-heroes on Earth. This would explain why Superman, Starfire, Martian Manhunter, Hawkman, Hawkwoman and others don't have a green card compartment in their utility belts. It also beats having Superman rush off in the middle of a fight to the post office, because it's January 31st, and he's forgotten to register this year.
Well, those are some of the things which the Keene Act are likely to cover and permit. One thing I doubt it allowed was special hearings before a three-judge panel, to determine whether super-villains should even be charged. No, I still haven't figured out what was happening in Infinity Inc # 38, where a three-judge panel decides that, because the members of Helix had bad childhoods, they should be given a break and not even prosecuted for their crimes. Instead of being prosecuted, they are to be sent to a psychiatric hospital for treatment, whether they want to go or not. )And just how is California supposed to enforce this forced hospitalization given that none of Helix has been convicted of any crime or subjected to an involuntary commitment hearing? What is California going to do, when Helix decides to walk away from the hospital? Nothing, that's what. It didn't have the authority to order Helix to the hospital in the first place.)
But it's not surprising that the resolution of the hearing was incorrect, the whole premise of a three-judge panel deciding whether to prosecute was fruitier than the honey dew section of the A&P. Yes, the state gets to decide whether or not to prosecute, so I guess California could have made the decision by having such a hearing. But it isn't bloody likely. These are adult, super-powered felons we're talking about here. I can't really believe California would decline to prosecute them, because of a deprived childhood. (No, not even California would go to they're "depraved on accounta they're deprived" extreme.) After all, a deprived childhood isn't an excuse for criminal acts. If it were, I'd be able to walk every one of my clients. What deprivation in childhood might do is help convince the judge that a defendant should receive probation or a lighter sentence. But convince them the defendant shouldn't be prosecuted. That happens as often as you get to see the great and powerful Oz: not no how, not no way.
In other words, what the story could have done, to make it believable would be for the hearing I described to be a sentencing hearing after Helix had been convicted, instead of a hearing to decide whether to prosecute the defendants. The hearing could have put Helix probation with the condition that they go to the psychiatric hospital. In that way, the treatment condition would be enforceable, because, if Helix ever walked away from the hospital, their probation could be terminated and the original sentence imposed.
Yes, that type of hearing would have made sense. Which is more than I can say for the silly procedure we saw in the story.
Bob Ingersoll
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