If you had the ability to shoot plasma from your hands, would you need a concealed weapons permit? It’s a silly question, we know. Of course you would—and the state would be obligated to grant you one, provided you had no serious criminal history and the plasma-blasting was something you could control.
At least, that’s the legal conclusion drawn by James Daily of Stanford University’s Hoover Institution, and Ryan Davidson, an insurance lawyer from Fort Wayne, Indiana. Daily and Davidson are the founders of Law and the Multiverse, the first blawg to seriously consider such questions as: Would mutants be protected by the Americans for Disabilities Act? Is Batman a state actor? And what’s the best place for a super-villain to build his super-secret hideaway? (Answers: yes, yes, and outer space). Law and the Multiverse is where DC Comics meets DC v. Heller, and habeas corpus meets levicorpus.
Mother Jones spoke with the dynamic duo recently about the Affordable Care Act, Citizens United, and the zombie apocalypse.
Mother Jones: Superman became president at one point, and his immigration status was an issue. The Supreme Court decided that he was an American citizen. Did you agree with that decision?
James Daily: It occurred in an alternate universe, and under the facts as presented there, I think it made a lot sense. If he was in a birthing matrix—an artificial womb—while in transit, and did not actually leave the womb until the rocket ship opened in the Kansas cornfield, I think it’s perfectly reasonable to say that the point at which they’re born is the point at which they exit that womb, by analogy to the natural birth process.
Ryan Davidson: The argument there is that either he wasn’t born at all or he was born in Kansas.
JD: And clearly he was born, of course. It’s worth noting that’s not the current canonical Superman origin story. They went back to the notion that he was already a child, was placed in the spaceship, and sent in sort of suspended animation, in which case I don’t think you could really argue that he’s a natural born citizen.
MJ: What if he were born in a parallel United States—would he retain citizenship?
JD: I think not. As long as the parallel world exists concurrently, they are distinct countries, and as similar as they might be, they’re still distinct.
RD: But here’s the thing: How is someone who wants to dispute this president’s paternity going to prove that you came from a parallel universe? I mean what kind of evidence are we going to admit that establishes that fact? Good luck with that!
JD: Well it could be something obvious. It could be that you have them show up in a giant flash of energy in Time Square and say, “Behold, I have perfected travel between dimensions!” I mean that’s pretty good evidence. But normally they seem not to show up in such flashy circumstances. Maybe some day there would be not a birther contingent, but a “dimensioner” contingent [saying] “show us the parallel universal birth certificate,” or whatever.
MJ: The government relies on Batman a ton for law enforcement, but at the same time, he’s running this giant multi-national, Halliburton-type company. Does that raise any conflict of interest issues?
JD: Wayne Enterprises has massive anti-trust issues. In terms of Batman using his influence to get contracts and things, I’m not sure how much that happens because Wayne Enterprises is very much an international company, whereas Batman is pretty localized to Gotham.
RD: But also, depending on how the story is written, the government might not actually know Batman’s identity, so while there might certainly be some interesting questions there, there’s no corruption question because they can’t make the connection.
JD: In some versions of Batman, he doesn’t even cooperate with the police very much.
RD: He’s had warrants issued for his arrest on more than one occasion!
JD: But even on the ones where he cooperates very closely, the commissioner doesn’t know that Batman’s Bruce Wayne. So it would be difficult for him to leverage much influence and connections without giving away his secret identity.
MJ: Cities like Gotham are constantly under the threat of super-villains, who are far more dangerous than Al Qaeda. Is it realistic to think Gotham would even be operating under our quaint law code?
RD: Actually the Marvel Universe addressed this pretty much head-on in their Civil War series about three or four years ago: There was a reality TV show featuring superheroes, that wound up blowing up an elementary school. And this led to the passage of the Superhero Registration Act, which in many ways seems to have been inspired by the Patriot Act.
JD: One of the ways that the government addresses the issue is by letting superheroes do what they do outside the bounds of the law, with a bit of a wink and a nudge. They’re okay with superheroes beating people up, extracting confessions, because, quite frankly, the government’s powerless to do anything about super-villains otherwise.
MJ: Like turning someone over to Egypt.
JD: Yeah, extraordinary rendition. Except instead of sending someone to another country, we just have Superman take care of it.
MJ: Conservative politicians think that terrorists have superpowers that would allow them to break out of Supermax prisons. If they actually had that the ability to break down steel walls, how much leeway would the state have to devise a new system?
JD: I don’t know to what extent repeated escape attempts or successful escapes would justify extraordinary measures. But certainly if they are an active danger to others, then I think the government could fall back to the fairly well established deal they’re allowed to do under involuntary commitment. One way to go about it would be to establish a prison on one of our Pacific island possessions. If the nearest piece of land was a few hundred miles away and pretty much the only thing on the island is a naval base, then I think that works pretty well. That’s kind of the idea behind Guantanamo Bay.
RD: I mean Marvel has set up prisons in other dimensions. Where you keep the people is probably less of a problem than what you do to them while they’re there.
MJ: Many states have passed legislation to ban human-animal hybrids. In the Multiverse you might have actual human-animal hybrids. How would you reconcile their existence with state law?
RD: A ban on creating these things isn’t the same thing as a ban on being one of them. So the scientists could get in trouble. But the subjects? They haven’t done anything wrong.
MJ: If a superhero has sex with a woman who doesn’t know he‘s a superhero—say Clark Kent, rather than Superman—can she sue if the child turns out to have undesirable uncontrollable superpowers?
JD: I don’t think so. I mean I’m not positive, but I would think that by analogy to, for example, someone who knows that they are the carrier to a hereditary disease.
RD: Yeah, a hereditary condition is different than a disease. If you know you have a disease and you give to someone else through sex and you know you have it, that‘s a crime.
JD: And it’s worth noting that the father would still be required to support the child. That’s probably the way the law addresses that kind of thing: It’s unfortunate you have a child that you didn’t realize was going to require maybe special care, you have to send them off to a special school for mutants or whatever, but on the other hand the other parent is supposed to at least theoretically supposed to pay for their fair share of that.
MJ: Superheroes age at a much slower rate than the rest of the population. Should they be eligible for Social Security at the same age as everyone else? Would it be constitutional for the state to step in and say, “it sets in for these folks at 185.”
RD: Or maybe it cuts off at a certain point. Like, “Look, you got your thirty years; you’re done.”
JD: The Supreme Court has held that it’s ok to discriminate on the basis of age in most cases. The reasoning is that absent unusual circumstances like disease or whatever, people will all live roughly the same life. That kind of goes out the window when you’re talking about extremely long-lived or even apparently immortal superheroes. But I think Ryan gives a good way out, in the case of something like Social Security, where you can say, “well, you get your benefits, but only for maybe 100 years.” On the other hand, I’m not so sure that it’s that much of a problem, because I’m not sure there are that many long-lived superheroes retiring or going on Social Security.
RD: And many of them would really not prefer to have those kinds of entanglements with the state. They’d much rather lie low and not have that kind of official notice taken of them.
MJ: Prior to the Affordable Care Act, would health insurers have been permitted to discriminate against mutants? Is that the ultimate pre-existing condition?
JD: Most mutant conditions don’t seem to involve a lot of special health care needs.
RD: Quite the opposite.
JD: Wolverine for example would be a health insurer’s dream.
RD: They’d sign him up any day of the week.
JD: Now, separate from the issue of whether or not they have a mutation, is being a superhero. That does seem to be fairly dangerous and does land folks in the hospital on a fairly regular basis. They always seem to make a miraculous recovery, but still, they do need medical attention quite frequently. So listing “superhero” as your occupation might make your health insurance premiums pretty high.
RD: Life insurance premiums would also be pretty bad—particularly as some of those people might die more than once.
JD: Well I don’t think the comics have yet taken up that possibility, but I think there are certainly some individuals in the comic books that if they wanted to could have a pretty huge influence on politics. Both Tony Stark and Bruce Wayne, for example, are extremely wealthy influential people and their money comes from—
RD: In the Frank Miller story, Lex Luthor is president basically for life.
JD: And obviously he came from money earned from business. There’s certainly a possibility that they could influence politics if they wanted to, but in the case of Bruce Wayne, I think he probably would refrain from being too involved in politics, because the more he gets involved in politics the harder it’s going to be for him to claim any kind of grievance if somebody reveals that he is Batman.
MJ: When I was thinking about this interview, my editor mentioned The Men Who Stare at Goats—which was basically the army’s attempt to teach superhero skills. Do you think that at some point down the road, some of the topics that you’re discussing might actually be applicable?
JD: There are two areas that I think might come up. One is we’ve kind of talked a little bit about whether intelligent computers would be accorded rights, or what rights they might be accorded. While that might be a ways off if it ever happens, there are many intelligent people working very hard on that problem, and a lot of people would like to see it happen, and it seems vaguely possible.
RD: Certainly more plausible than some of the other stuff we write about.
JD: For instance: Watson beating the folks on Jeopardy! The other issue that might arise are when people live a very long time. If some day people start living, say, 200, 300 years, given the right medical care, well if you have maybe a white-collar criminal who’s got the money to keep up the life-extending medical treatment even while they’re in prison. Is it ok to sentence somebody to life when they’re going to potentially spend two to three hundred years behind bars?
RD: Right now a life sentence means 50 years, give or take. But 300? You’re gonna outlive the prison.
JD: I don’t know what the current record is, but I would be shocked if anybody’s ever spent more than like 75 years in prison. So that almost seems like it would be testing the bounds of constitutionality. If somebody potentially lives to two, three hundred, that gives one pause.
MJ: Meanwhile, if somebody’s convicted for three murders, back-to-back-to-back life sentences, and they have the ability to die and come back to life, they could conceivably walk free.
JD: When we’ve talked about that, one of the solutions we came to was if you do that kind of “die and resurrect yourself” trick with the intention of pulling an end-run around something, that probably doesn’t count. If you’re a healthy 20-year-old and you take down a $20 million life insurance policy for yourself for pennies, and then you die and come back the next day intentionally, the law is probably going to say “No, you don’t get to collect.” The same thing is probably going to happen in terms of criminal sentencing.
MJ: Do you have a favorite case that you’ve looked at so far?
JD: The case I think is pretty interesting goes back a ways, about whether or not cannibalism would be legal in a zombie apocalypse scenario. The government has fallen apart and you have a group of people who are starving and they kill and eat somebody who was still alive—would that be allowed, and could they be charged with murder if the government comes back? And there’s a case that’s surprisingly on point: It’s an English case, R. v. Dudley and Stephens, about cannibalism on the high seas. It doesn’t get much more gripping than that.