Federalism and the Keene Act

The Keene Act is a federal law in the Watchmen universe that prohibits “costumed adventuring.”  But it would it actually pass Constitutional muster?

The United States Congress does not have what is called a general police power; its powers are specified in the Constitution and anything not so specified is reserved to the states and the people by the 10th Amendment.  So for the Keene Act to be constitutional, there must be some justification for it in the Constitution.  Let’s take a look at the options.

First, let’s dispose of some powers that definitely don’t fit.  The spending power can be used to force states to pass laws that the federal government couldn’t pass itself by threatening to withhold federal funding.  South Dakota v. Dole, 483 U.S. 203 (1987).  The spending power is general enough that it could address this issue, but the Keene Act seems to be a self-contained piece of federal legislation, not a coercive act designed to prompt action by the states.  So while Congress could use the spending power to require the passage of state-level costumed adventuring bans (by, e.g., threatening to withhold law enforcement funding), that doesn’t seem to be the approach used in the Watchmen universe.

One route to making something a federal crime is to limit it to cases involving federal land, property, employees, etc, but the Keene Act seems too general for that.  No, we must go big, and that means the Commerce Clause.

The Commerce Clause is the mainstay of modern congressional authority.  Although it does have some limits (see, e.g., United States v. Morrison, 529 US 598 (2000)) the scope of the Commerce Clause has expanded greatly over the past century.  I think it could form the basis of the Keene Act.

The Commerce Clause is limited to interstate commerce, but there is an interstate market for crime prevention and investigation services (e.g., private security firms, private investigators, bounty hunters).  Firms and individuals involved in this market routinely work across state lines.  The Keene Act could be based on requiring, for example, that anyone working in such a market do so under their real identities.  The legitimate government interest would be the safety of consumers of such services; it is valuable for consumers of such services to know who they are dealing with.  Thus the Keene Act could satisfy rational basis review under the Commerce Clause.

It should be noted that the fact that costumed adventurers actually provide their service for free and often without contracting with clients is of no account, as is the fact that they may work only within one state.  The Commerce Clause extends to non-commercial transactions and even intra-state activities as long as doing so is necessary to make the interstate regulation effective.  Gonzales v. Raich, 545 U.S. 1 (2005).  If the local or non-commercial activity affects the interstate market, the Commerce Clause can reach it.  545 U.S. at 19.  The existence of costumed adventurers no doubt affected the market for regular security firms, private investigators, and bounty hunters.  If the aggregate impact on the market was substantial or significant, then that is enough.  Id. at 19-20.

This may seem like an extreme take on the Commerce Clause, but let us recall that this is the same universe in which Richard Nixon essentially became President-for-Life.  The federal government of the Watchmen universe is likely to be very powerful indeed, and that means a broad Commerce Clause.

[Credit: This post was inspired by this comment by Will Frank.]

41 responses to “Federalism and the Keene Act

  1. Pingback: He's not a state actor, he's the goddam Batman! at Sore Eyes

  2. That’s an interesting analysis. Another route to take, and possibly shorter, is to take the statute outlawing costumed adventuring, then using the Necessary and Proper Clause apply the majority opinion in U.S. v. Comstock 130 S.Ct. 1949 (2010) to its logical conclusion. You don’t need to stretch to get results, you can get being a superhero outlawed today.

    To do so:
    1) Take Justice Breyers five points: (1) Breadth of necessary and proper clause, (2) length of fed. involvement in civil and criminal commitments, (3) ground the statute in the governments custodial interest to safeguard the public, (4) claim accommodation to state interest, and (5) say the statute is narrow in scope

    2) Now, apply the majority opinion logic that the Necessary and Proper clause “permits Congress to create federal criminal laws, to punish their violation, to imprison violators, to provide appropriately for those imprisoned, and to maintain the security of those who are not imprisoned but who may be affected by the federal imprisonment of others” and you get

    3) “The Constitution… authorizes Congress to enact the statute.”

    • I like the idea, but I think it takes a little more than that. In Comstock the respondents had all been convicted under other federal criminal statutes whose constitutionality was not at issue. The issue was whether the post-imprisonment civil commitment statute was necessary and proper for carrying out the enumerated powers upon which the original federal criminal statutes were based.

      The Keene Act, by contrast, appears to be a new criminal statute entire unto itself, so it must take its justification from an enumerated power. Even if it could rest on the necessary and proper clause there would still need to be an identified enumerated power at bottom. Since that would probably be the commerce power, this approach actually adds a layer to the analysis rather than taking a short cut.

      Point 2.3 is inapplicable anyway, I think. “The government’s custodial interest to safeguard the public” refers specifically to the fact that the government has an obligation to protect the public from those in its custody. To wit: “As federal custodian, [the federal government] has the constitutional power to act in order to protect nearby (and other) communities from the danger federal prisoners may pose.” 130 S.Ct. at 1961. That power can’t form the basis for imprisoning people in the first place.

  3. Forbidding masks would run afoul of the free exercise of religion and equal protection clauses combined, wouldn’t it, because some religions require veils? If anonymity confers some privilege (and there’s a long tradition of pamphleteer reformer whistleblowers which suggests it does) then limiting that privilege to only those with religious compulsions to obtain them seems discriminatory to me.

    • You’d need to demonstrate that wearing the masks is actually required by a sincerely held religious belief, which makes most costumed adventurers ineligible. But this is actually a pretty decent candidate for surviving a strict scrutiny analysis. The Keene Act seems to be

      1) justified by a compelling governmental interest, namely the restriction of manifestly destructive and disruptive activities;
      2) narrowly tailored at the offending activity, in that it does not actually prohibit costumes, just using costumes while acting as a vigilante;
      3) the least restrictive means of accomplishing the interest; and
      4) actually promoting the interest in question.

      So no, the Keene Act would not seem to be vulnerable to a First Amendment challenge, or, at least, would probably survive it. The question of its constitutionality would really turn on whether Congress could legislate this under the Commerce Power.

    • Aren’t there already mask laws in place in many states in the real world?

  4. I don’t think the Keene Act could rely on the Commerce Clause, especially since so many of the masked vigilantes engage in actions not only internationally, but intergalactically.

    The proper enumerated power, I believe, would be the little used “Letters of Marque and Reprisal” clause. If Congress has the authority to issue Letters of Marque authorizing private individuals (or groups, such as The X-Men) to fight crime both inside and outside the United States, the greater power encompasses the lesser power of regulating the same activity.

    It’s hard to say without seeing the actual language of the Keene Act, but by implication, since vigilantes who work for the government are exempt from the penalties, Congress has created a means by which superheroes can be granted “Letters of Marque” under which they can continue to wear masks. As an enumerated power, by function of the Supremacy Clause, once Congress has created this national regime, no state can act within the area of regulating superheroes.

    • Letters of Marque and Reprisal are limited to action against vessels of foreign nations. They would not apply to any costumed adventuring that I recall from Watchmen, though it has been a couple of years since I last read it.

      I also don’t recall a lot of international action except that which was already sanctioned by the government (e.g. the Comedian and Dr. Manhattan fighting in Vietnam). I certainly don’t recall any intergalactic action. The Keene Act itself was definitely prompted by costumed adventurers acting within the US against US citizens or at least residents, so Letters of Marque really wouldn’t apply. Also, the Commerce Clause extends to commerce with foreign nations, so I think the Keene Act could reach costumed adventurers who acted abroad so long as they later came under the jurisdiction of the United States.

      • I’ve seen very few, okay, no cases dealing with the Letters of Marque and Reprisal clause. Do you have a source limiting it to “vessels of foreign nations”? Because as recently as 2001, after the 9/11 attacks, Congress was considering issuing Letters of Marque to private individuals and companies to hunt down Al Qaeda.

        So I think it would absolutely apply to the Watchmen. Dr. Manhattan, if you recall, had a major role in why the U.S. won the Cold War. The Joker, as a government employed superhero, was involved in “covert operations”.

        As far as the Watchman itself goes, no intergalactic action; I was generalizing to superheroes overall.

        As for what prompted the Keene Act, I believe in jurisprudence, the plain language of the statute, and the power being invoked, would govern over and above floor debate or expressions of intent that are not found in the statute itself.

        In the alternative, the Keene Act could be thought to draw its authority from the enumerated power of Congress to raise an army. Dr. Manhattan, for example, is employed by the DoD; The Joker appears to have been employed by the national security apparatus. That would also work.

      • There are only a few early cases dealing with letters of marque. They are referred to as the Quasi War cases because they came out of the Quasi War with France. Specifically, Bas v. Tingy, Talbot v. Seeman, and Little v. Barreme. J. Gregory Sidak wrote a nice law review article that touches on the history of letters of marque and the way they were understood at the time of the Constitutional Convention.

        “Roughly speaking, the original understandings of “letters of marque,” “reprisal”…were the following. Letters of marque were legal authorization for private parties — privateers — to use force to harass or prey upon a nation’s enemy. Reprisal was the legally authorized act of securing redress for a debt incurred by a foreign government by forcibly taking the private property of its subjects….The phrase appeared frequently in statutes throughout Europe in the fifteenth and sixteenth centuries. Eventually, letters of marque and reprisal evolved into commissions ‘to fit out an armed vessel and employ it in the capture of the merchant shipping belonging to the enemy’s subjects, the holder of [a letter] being called a privateer or corsair.'” J Gregory Sidak, The Quasi War Cases–and their Relevance to Whether “Letters of Marque and Reprisal” Constrain Presidential War Powers, 28 Harv. J.L. & Pub. Pol’y 465, 468 (2005). Or, if you prefer, the Oxford American Dictionary definition “a license to fit out an armed vessel and use it in the capture of enemy merchant shipping and to commit acts which would otherwise have constituted piracy.” A “privateer” is specifically “an armed ship owned and officered by private individuals holding a government commission and authorized for use in war, esp. in the capture of enemy merchant shipping.” The term is historically and textually limited to acts against foreign nations and, by the time the Constitution was written, likely further limited to the seas.

        It is immaterial that a bill invoking the power in an unrelated circumstance (acting against foreign agents particularly ones outside the US) was considered by Congress. That tells us nothing about its constitutionality, since it wasn’t passed much less reviewed by the executive or the judiciary. And as I said it’s largely inapplicable here anyway.

        Yes, the plain language of the statute might make things clear, but we don’t have it. I think it far more likely that the Congress of 1977 would have used the Commerce Clause than an untested and strained theory about the limits of the Letters of Marque and Reprisal Clause.

        The power to raise an army may suffice for empowering Manhattan and the Comedian to work for the government, but I don’t think it suffices to outlaw unsanctioned costumed adventuring.

    • Um, who but Dr. Manhattan acts even on an interplanetary level? The Keene Act is particular to its universe, and since Manhattan is both a) government-sanctioned and b) not in costume except at the direction of the government, the law can only address the sorts of ‘costumed adventuring’ that have actually existed in that history.

    • Would this trump the individual states’ laws concerning citizen’s arrest, though? Or merely require that those conducting such activities not be wearing costumes or masks?

      Not that the activities of Nite-Owl and Rorschach in roughing up thugs in pursuit of information, and of course Rorschach in applying final punishment, as opposed to stopping felonies or even misdemeanors in progress, didn’t frequently cross the line from citizen’s arrest into vigilantism, but that’s a question of how far they’re allowed to go, and not whether they’re allowed to fight crime *at all*.

  5. I don’t think a law imposing a blanket ban on “Costumed Adventuring” would pass constitutional muster, at least in today’s world. Costumes, it seems, would be protected under the first amendment (freedom of expression). And “adventuring” is vague enough that a Woman wearing a burqa and making a pilgrimage to Mecca could plausibly be prosecuted. Let alone Halloween activities (is trick-or-treating an “adventure”?). It’s simply too vague.

    But then again, perhaps in Watchmen’s universe the Supreme Court is even more deferential and toothless than in ours.

    • That’s not a fair reading of the phrase “costumed adventuring.” In context it is clear that it refers to costumed vigilantism, not the mere wearing of costumes, nor ‘going on an adventure’ in the normal sense, or even doing so while wearing a costume. The phrase ‘costumed adventurers’ was created by Moore as an alternative to ‘superhero,’ since with the exception of Dr. Manhattan no one in the Watchmen universe has superpowers. A basis for criminalizing the costume part specifically is that the concealed identity makes it harder for police to investigate crimes committed by costumed adventurers.

      The First Amendment objection is easily avoided. Since the Keene Act only bans costumed adventuring and not the wearing of costumes generally it is a content-neutral time, place, or manner restriction on speech, which is reviewed less strictly than a content-based restriction. “Our cases make clear, however, that even in a public forum the government may impose reasonable restrictions on the time, place, or manner of protected speech, provided the restrictions ‘are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information.'” Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989) (quoting Clark v. Community for Creative Non-Violence, 468 U. S. 288, 293 (1984)).

      Here, the restriction does not refer to the content of the speech (i.e. what the costume depicts), it is narrowly tailored to serve the significant government interests of crime prevention and public safety, and it leaves open ample alternative channels for communication of the information such as wearing the exact same costume while not engaged in vigilantism.

      • Then why not pass a blanket law against “covert vigilantism”? That would outlaw professional costumed “heros” but would still allow legal bounty hunting, neighborhood watches, etc.

  6. I think the Keene Act is a law against covert vigilantism, just one that uses a synonymous phrase (“costumed adventuring”) that Alan Moore–an Englishman–thought sounded appropriate for 1930s America. Remember that the Keene Act was passed in 1977 but the phrase “costumed adventurer” dates back to the 30s in the Watchmen universe.

  7. I must take issue with your analysis as it Ignores United States v. Lopez which seems fairly analogous and indicates the Commerce Clause may not extend so far as to include blanket vigilantism if it’s inherently a not economic issue. Growing and raising crops is because of the regulation of crops being the properly within the ICC, but the possession of a gun on school grounds is not.

    If the law included a weasel clause limiting the power to only locations involved in interstate commerce it might pass muster. But this seems far more like Lopez than Raich.

    • I don’t think the Keene Act applies to “blanket vigilantism” but rather “costumed adventuring” specifically. The problems the Keene Act addressed were the crimes, abuses, and mistakes of costumed adventurers who, because of their anonymity, could not be held accountable.

      Hence my example of how it might be implemented: “The Keene Act could be based on requiring, for example, that anyone working in [the market for crime prevention and investigation services] do so under their real identities.” The actual implementation details would be a bit more complicated than that, but at heart this is a safety regulation of a well-known market that includes private security firms, private investigators, and bounty hunters, all of which often work across state lines or even national boundaries. This seems to fit Lopez’s rubric: “Congress is empowered to regulate and protect…persons…in interstate commerce, even though the threat may come only from intrastate activities.” Here, Congress is empowered to regulate and protect legitimate private security workers and the market for their services even though the threat may come from the intrastate activities of costumed adventurers.

  8. Interesting analysis, and I like what you’re doing with the blog, but the obvious objection is the First Amendment one, not freedom of religion but freedom of speech. This has been extensively litigated in the context of so-called anti-mask laws, used against the KKK.

    • First, what is the argument that the First Amendment even applies to the actions of costumed adventurers? Is chasing and beating up a criminal an act of speech or expressive conduct? A protest against the failures of the police, perhaps? That seems a bit strained. Is there “[a]n intent to convey a particularized message…present, and [is] the likelihood…great that the message would be understood by those who viewed it?” Texas v. Johnson, 491 U.S. 397, 404 (1989). I don’t think vigilantism by costumed adventurers would qualify under either part of that test.

      Even so, I think the Keene Act would be a content-neutral time, place, and manner restriction since it does not actually prohibit the wearing of identity-concealing costumes, only costumed adventuring, and I believe it would pass constitutional muster.

      But let’s consider it as an anti-mask statute. Not all anti-mask laws have been held unconstitutional. In the 2004 case of Church of the Ku Klux Klan v. Kerik, the Second Circuit held that New York’s anti-mask statute was constitutional (Note that then-Circuit-Judge Sotomayor participated in that decision.). The court held that the mask did not convey a message independent of the rest of the Klan’s regalia. “Inasmuch as the robe and hood draw an association between the American Knights and the Klan that is clear and unmistakable to any viewer, the addition of the mask cannot make that association any clearer.” Church of the Ku Klux Klan v. Kerik, 356 F. 3d 197, 206-07 (2d.Cir. 2004). A court could find that a costumed adventurer’s mask does not add to the asserted message, whatever that is.

      The court further held that there is (at least as of yet) no “right to conceal one’s appearance in a public demonstration.” 356 F.3d at 209. To the extent costumed adventuring is expressive conduct, it would seem to be more akin to a public demonstration than to, for example, being a member of a civil rights organization, for which a right to anonymity has been found. See, NAACP v. Alabama, 357 U.S. 449 (1958).

  9. I don’t disagree that anti-mask laws can be constitutional. It’s merely that, given the current state of constitutional discourse, starting with federalism rather than First Amendment concerns is an odd way to frame the question.

    In addition, the question is not whether chasing criminals is expressive; the question is whether wearing a mask or costume is (and the answer to that is pretty clearly yes, at least under some circumstances, which is why it is for example unconstitutional to ban nonfraudulent wearing of military uniforms in expressive works like plays). If the conduct is only criminal because it’s undertaken in costume, or even if the punishment is greater because it’s undertaken in costume, then First Amendment scrutiny is triggered. See, e.g., RAV v. City of St. Paul. In Fred Schauer’s terms, the First Amendment’s scope is implicated, even if a First Amendment claim would ultimately fail, in a way that the First Amendment is not implicated in a basic prohibition on robbery.

    • These are good points. I may have to address the First Amendment issues more fully in a followup post. I started with federalism because that was the query posed by a commenter, but clearly there’s more to work with here than I first thought.

      By the way, my main area of practice and research is IP (in case the first post wasn’t a giveaway), so there should be some future posts of particular interest to you.

    • It would be more likely to withstand scrutiny if it was phrased to depend on concealment of one’s identity and therefore attempting to escape accountability, rather than ‘costumes’ as such. On that basis, once Ozymandias revealed that his given name was Adrian Veidt, there’d be no objection to him continuing to beat up criminals* in any crazy get-up he wanted, so long as he wasn’t trying to conceal his identity. Basing it on costumes, though, suggests that he wouldn’t be allowed to do so (even if he hadn’t retired voluntarily), which could well be an abridgement of his 1st Amendment rights.

      *Those in active commission of a felony or appropriate misdemeanor, in accordance with most states’ citizens’ arrest statutes, anyway.

  10. I don’t have a comment, but couldn’t see any other way to sign up for blog updates or RSS feed, so please sign me up for your site updates. Thank you!

  11. As most “superheroes” in the Watchman universe were military officers or otherwise agents of the military, could it have been amendment to USC 18 chapter 33? Several of those laws (§ 702, regarding impersonating an officer of the military; § 712, about private investigators implying they have governmental powers; or § 716, regarding the use of uniforms of any public employee) seem to be in the right area.

    • No, most weren’t any such thing; just those that were allowed to continue operating after the Keene Act, and to whom it clearly didn’t apply. Of course, Manhattan didn’t really do much ‘adventuring’ before *or* after, and Comedian switched to mainly doing black ops abroad.

  12. How about the equal protection clause of the 14th amendment?

  13. One of the cases that overturned a anti-mask statute was American Knights of the KKK v Goshen. NdIN 2000. I don’t have the full cite. The lower court opinion in the 2nd circuit case is here http://mlcastle.net/masklaw.html. aha, American Knights of the Ku Klux Klan, Case No. 3:98-CV- 403RM (N.D. Ind. May 4, 1999). There was a florida case, maybe 2004, I forget how it turned out. Wearing a costume can be expressive under Tinker v Des Moines or Cohen v California.

  14. “Consequently, actions resulting in the restriction of
    free speech, such as prohibiting persons from engaging
    in anonymous speech, are unconstitutional. American
    Knights of the Ku Klux Klan v. City of Goshen, 50 F.
    Supp.2d 835 (N.D. Ind. 1999) (holding ordinance
    prohibiting KKK from wearing masks to conceal identity
    from the public unconstitutional because of its tendency
    to restrict freedom to distribute information).”

    – McIntyre v. Ohio Elections Comm’n, 514 U.S. 334 (1995).

  15. I believe the intent of the authors was to do two things:

    1) Provide a plot device for outing supers, and

    2) Show that under 5 terms of President Nixon (remember, the Constitution was amended so he could continue to run for President indefinitely) the government would become so intrusive and unchecked that laws our reality would find blatantly unconstitutional would be accepted in the Watchmen universe.

    The fundamental flaw of this nonetheless entertaining website is that is presumes the Constitution remains constant across multiverses. However, I believe it is reasonable to assume that in a parallel universe where superpowers are real, there may be many other differences, including the functioning of government. Legal analysis of a superhero situation under our own Constitution is a good exercise in theory, but ultimately the answers to most of these questions would depend on what the multiverse authors want the Constitution to say in that other reality.

  16. This post also probably applies to the laws passed in the Civil War series that Marvel did, although I am not sure how a superhero agency like SHIELD plays into that.

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  18. How did Nixon essentially become president for life? Did you mean FDR? I’m sorry if that’s off topic, but that just confused me when I read it.

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  21. Isn’t vigilantism, costumed or not, forbidden per se? As far as I know, it would violate several due process norms. I think Keene act is a dramatic device that probably should had been resolved in a different way. For example: Let’s suppose that in the 1940’s the watchmen were sanctioned as a governement authorized agency. As such it would operate within the bundaries of the law. In 1977, the agency is disbanded, so the vigilantes, not being governement agents anymore, could not perform those activities without breaking the law and therefore, becoming felons themselves.

    • First off, there is no crime or tort of “vigilantism” as such, so no, it isn’t directly forbidden. But more broadly, it depends on what you mean by vigilantism. The law privileges several kinds of activities that might be considered vigilantism in some circumstances, such as self-defense, defense of others, and citizen’s arrest. For an example of a sort of “costumed adventuring group” that is pretty careful about staying within the bounds of the law, see the Guardian Angels.

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  23. I graduated from law school in 1990, when the “rule” for interpreting the Commerce Clause was “interstate commerce is whatever Congress says it is”–particularly in light of Wicard v. Filburn and Gonzales v. Raich….

    But in light of all the weirdness that is National Federation of Independent Business v. Sebelius, 567 U.S. ___ (2012), do you still think the Keene Act would pass Constitutional muster under the Commerce Clause?

    Frankly, I think you’d be better off attaching it to a spending bill–money for police, or roads…whatever.

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