Jul
22
Superpowers, Supervillains, and Constitutional Law
“[E]xplore the hypothetical legal ramifications of comic book tropes, characters, and powers, down to the most deliciously trivial detail.”
Don’t worry, you’re on the right blog.
Not long ago on my “Heroes and Aliens” pop-culture blog, I shared three posts in which I presented some material from the book The Law of Superheroes (2012) by lawyers James Daily and Ryan Davidson. In particular, I focused on some issues from the first part of the book, which looks at constitutional law and (in one section) Federal Rules of Evidence. I thought some of you might get a kick out them, too, so here are the links and a brief quote from each….
“Evidence, Telepathy, and the Fifth Amendment”
““Is a psychic’s claim about the contents of another person’s head relevant?”
We think the answer is yes. The psychic could be lying, but that’s true of any witness, and the jury must judge the psychic’s credibility just like any other witness’s. The psychic could be a fraud, but the judge could require that the psychic’s powers be proved prior to offering the substantive evidence. Federal Rule of Evidence 901(a) provides “the requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” By way of example, Federal Rule of Evidence 901(b)(9) gives “Evidence describing a process or system used to produce a result and showing that the process or system produces an accurate result.” The accuracy and reliability of a psychic’s power fits that example.”
“Supervillain Sentencing and the Eighth Amendment”
“While many superpowered characters are tough, most can be killed through conventional means when it comes right down to it. However, others may either be unkillable (e.g., Doomsday, Dr. Manhattan) or extremely difficult to kill (e.g., Wolverine). In the case of a character with a healing factor like Wolverine’s, none of the most common modern methods of execution would work: shooting, hanging, lethal injection, electrocution, or the gas chamber. Decapitation might work (Xavier Protocol Code 0-2-1 mentions this as a possibility for Wolverine), but no one’s tried it.
This uncertainty is problematic, because while the Supreme Court has repeatedly upheld the constitutionality of the death penalty and has never specifically invalidated a method of punishment on the grounds that it was cruel and unusual, it has stated “[p]unishments are cruel when they involve torture or a lingering death….””
“Superpowers and the Second Amendment”
“The Constitution would not tolerate requiring innately superpowered individuals to identify themselves continuously. That would seem to violate the constitutional right to privacy and the limited right to anonymity. Furthermore, simply keeping concealed weapons is allowed (e.g., a hidden gun safe in a home). The real objection is to concealed weapons borne on the person in public.
Thus, the calculus changes when a superhero sets out to bear his or her powers against others in public (e.g., goes out to fight crime). Luckily, many superheroes already identify themselves with costumes or visible displays of power (e.g., Superman, the Human Torch). Beyond that, most states offer concealed carry permits to the public, usually after a thorough background check and safety & marksmanship training. It may well be that the Constitution requires that if a state will grant a concealed carry permit for a firearm then it must do the same for an otherwise lawful superpower.”
Intrigued? Why not check ’em out? Maybe you’ll find something else of interest on the blog, too.
Thanks for reading!
