Smallville III: Doppelgängers and Direct Democracy

This marks the third post in our series on Smallville (1, 2), which ended its run a week ago. This time we’re looking at two plot elements in Season Ten: Lionel Luthor’s reappearance and the vote to overturn the Vigilante Registration Act. Spoilers, as always, follow.

I. Dopplegängers

Early in Season Ten, Clark accidentally activates a “Mirror Box,” which transports him to Earth-2, an alternate universe where Lionel Luthor, not Jonathan and Martha Kent, discover Clark the day of the meteor shower. The world is a rather bleak and terrifying place, and the alternate version of Clark is really quite a monster. Of interest for us is that the alternate version of Lionel manages to cross back into the “real” world when Clark returns. Of course, the “real” Lionel died several seasons ago, so Evil Lionel represents something of a surprise for our heroes.

Lionel goes about reclaiming the assets and property disbursed upon “his” death several years before. We talked about resurrection and probate law a while ago, and this winds up being pretty much the same analysis. The key here is that Evil Lionel is passing himself off as Real Lionel, and no one has any reason to suspect otherwise. The only way to really prove that he’s a doppelgänger is to have Real Lionel make an appearance, and that’s not going to happen. Even exhuming the body wouldn’t be conclusive proof, given the apparent state of cloning technology in the Smallville universe. Remember Lana faking her own death a few seasons ago? Using a clone. Lionel could have done the same thing here, and it’d be very, very difficult to prove otherwise. And really, a court is going to have a much easier time believing that someone like Lionel faked his own death than it will believing that he’s from an alternate reality.

Furthermore, other than Tess and Oliver, most of the LuthorCorp execs, i.e. the people with the most vested interest in Lionel’s status, are probably pretty excited to have him back, seeing as the business always seemed to do better when he was in charge. Lex did okay, but he’s still dead, and the Oliver/Tess administration seems to be mostly a series of disappointing quarterly reports and inconveniently fatal explosions. A return to the old guard would plausibly be welcomed.

So ultimately, while it may take some explaining, the mere fact of Evil Lionel’s presence will probably speak for itself, and it’s entirely possible that after some months, he could wind up getting most of his assets back. Particularly as the estate seems to still be winding down, given the continuing discovery of artifacts like the Mirror Box. Assets still in the estate would be his merely for the asking.

II. Direct Democracy and the VRA

A fairly serious plot arc in season ten is the Vigilante Registration Act, which seems to be pretty similar to the Superhuman Registration Act we’ve been discussing over here. This Act is even less worked out than the SHRA, but the show spends a lot less time playing with the details, so this winds up being less of a problem than it is in the Marvel Universe, particularly as the act seems to have been in force only for a few months, and with only a few dozen targets. But the same kind of constitutional issues are present, and the analysis is basically the same, so we won’t duplicate that discussion here.

The new wrinkle is that midway through the season, there is a popular vote to overturn or repeal the VRA. While Law and the Multiverse has, we hope, demonstrated itself as having a charitable eye for Acceptable Breaks from Reality where getting the law right would make for bad television, we are here coming to an exception: this portrayal of the legislative process is spectacularly, unforgivably wrong.

Why? Because there is absolutely no mechanism, constitutional or otherwise, for direct democratic referendum on any piece of federal legislation. Never has been, and unless the Constitution is amended, there never will be. The Constitution explicitly and self-consciously creates a system of representation and permits no direct participation of the people in the legislative process.

The federal constitutional amendment process, for example, is initiated by either Congress or the state legislatures.  Unlike many states, the people are never directly consulted about amendments.  Even more, despite the massive hype surrounding the Presidential election, direct election of the President is actually a myth: the fact that the popular vote matters at all is a feature of political custom and state law, not constitutional law. The Constitution provides that the President shall be elected by the Electoral College, not by the popular vote, and though states may determine their own means for choosing their Electors–including popular vote–Electors are under no constitutional obligation to vote the way their state’s popular vote goes, and state laws attempting to punish “faithless electors” have yet to be ruled on by the Supreme Court (probably because it’s never made a difference). So for starters, the federal government of the United States is way less democratic than most people probably think.

Getting the mechanics of the Presidential or congressional elections wrong is one thing, and probably excusable. Not everyone is a policy wonk. And in other cases, we’ve been pretty forgiving about authors and editors who don’t have the details of administrative law figured out. A lot of lawyers are pretty fuzzy there too. But making up an entirely new, unprecedented, and quite probably unconstitutional political form goes beyond the pale. This is high school civics stuff, not high-level political theory. Citizens of the United States have absolutely no opportunity to vote upon federal legislation. None. Zero. Nada. So a vote to “repeal” the VRA is completely meaningless.

Okay, theoretically, it’s possible for a repeal bill to be written that has as its trigger the results of the popular vote.  Triggers are a common feature of legislation, but they are usually based on either time or a future action of the legislature (e.g. a declaration of war).  Using a popular vote as a trigger would likely be so politically and legally controversial that the debate over the legitimacy of the procedure would probably overwhelm the debate over the underlying issue.  And of course the repeal bill would still have to be passed by Congress and signed by the President.

It’s also not clear under which enumerated power of Congress the popular vote could be taken under.  Remember, regular federal elections are handled by the states, though somewhat regulated by the federal government through laws like HAVA.  It’s quite possible that Congress would have to ask or bribe the states to handle the voting.  If any state abstained from participating in the vote that would call into question the legitimacy of the whole process.  The whole thing is, at best, a giant mess.)

If the writers wanted to come up with a high-stakes vote on the legislation, they could have. Witness the drama and wrangling that went into getting the ACA passed last year. It did come down to a few key votes, some of which were late at night or right down to the wire, and the drama dominated the news cycle for weeks at a time. But it was all representatives and senators doing the voting, responding to pressure from the public, not citizens voting on their own behalf. This would have made Martha Kent’s role even bigger, as instead of simply giving a stump speech here and there, she’d have been actively involved in the process. Of course, that would have meant paying Annette O’Toole more, and while that’s no bad thing for the episodes she’s been in, it may not have been possible for budgetary or logistical reasons.

Still, shame on the writers for not finding a way to do this even within the bounds of the Hollywoodland legal system. Even if they’d fudged the process of actually getting a bill through Congress, that’d have been okay. Congressional procedure is notoriously arcane, and in the light of the ACA last year, any writer worth his salt should be intimidated by the thought of getting that right. Any TV show that gets bicameralism and presentment down gets a free pass on legislative procedure as far as we’re concerned, as that’s the about as much legislative procedure as adult Americans can be expected to know. But this? Bad writers! No biscuit!

III: Conclusion

So with this post we’ve got one thing the authors get basically right, i.e. Evil Lionel can probably claim Real Lionel’s assets without too much difficulty, and one outrageously wrong, i.e. there is absolutely no provision in the American political system for direct popular referenda on federal legislation. There’s plenty more to look at in this series, so we’ll probably return to it at least once or twice more.

15 responses to “Smallville III: Doppelgängers and Direct Democracy

  1. I remember thinking the federal referendum thing was weird, too, but Smallville was actually filmed in Vancouver. If the writers were Canadian, they may not have known better, since Canada apparently has a system for national referendums.

    Smallville and Metropolis are obviously in the U.S., but I’d say the writers deserve some slack if they didn’t actually take American civics in high school.

    • That still suggests a desire on the part of the writers to deal with the issue in a specific manner rather than actually stopping to think if it made any sense. Besides that, it would have required less than fifteen minutes on a computer to track down the relevant information.

  2. Martin Phipps

    Remember Lana faking her own death a few seasons ago? Using a clone. Lionel could have done the same thing here, and it’d be very, very difficult to prove otherwise.

    Difficult but maybe not impossible. First of all, let’s assume that they can get DNA at all from Lionel’s body after he’s been dead a few years. I would imagine they could. If you want to know if the dead Lionel is a clone you also need to find a sample of DNA that you know was from the real Lionel. Of course, the DNA in the chromosomes in the clone would be identical to the DNA in the original BUT the mitochondrial DNA would be different. Mitochondrial DNA is different from chromosomal DNA in that it all comes from the mother. To fake mitochondrial DNA you would need to find an egg donor with the same mitochondrial DNA as Lionel’s mother. This is something you could theoretically do but it would mean having to find a female relative of Lionel’s mother and Tess wouldn’t have Lionel’s mitochondrial DNA because she got hers from her mother. So you would basically have to trace back family trees and find somebody in Scotland and get her to agree to be an egg donor all for the sake of producing a clone with the same mitochondrial DNA as the original. Now it is sounding extremely far fetched.

    Besides, you didn’t discuss how Lionel was found out: Tess found finger prints from her adoption records. Okay, first of all, since when do people have to get fingerprinted when they put children up for adoption? Second, didn’t the original Lionel get convicted of killing his parents? So wouldn’t the state have already had Lionel’s fingerprints? Anyway, whatever, it turned out that Lionel’s fingerprints were reversed. Mirror Lionel was arrested as an imposter.

    But hold on, here’s the question: who did they think Mirror Lionel was? Could Mirror Lionel now claim that he was a clone of the real Lionel and thus be entitled to _something_ as a blood relative of Lionel Luthor?

    Here’s the thing: if everything of Mirror Lionel is reversed then all his major organs would be reversed. Hell, he would even be different on the chemical level with all of his proteins and DNA chemically different from regular human DNA and protein. Of course then this would beg the question “What did Mirror Lionel eat?” because our DNA manufactures proteins based on amino acids that we find in our food and if all those amino acids are reversed from what we’re expecting then we can’t produce new proteins and we will slowly die from a lack of proper nutrients. I also doubt if Lex’s cloned body would have been able to accept a mirror image of his father’s heart without rejecting it. I don’t think the Smallville writers gave any of this any thought.

    Oh and what if dead Lionel were a clone? What then? When did dead Lionel replace Lionel and where has Lionel been all this time? Dead Lionel’s falling out of Luthorcorp was ruled a suicide. (Really? Seriously?) That case would have to be opened up again if dead Lionel were a clone because now you would have suspicious circumstances. If you assume that Lionel cloned himself and then killed his clone then he’s going back to prison: there’s no @#$%ing way a walking talking clone is not a human being and if faking your death means pushing your clone out of a window then that’s murder. Lana got a free pass because Lex supposedly testified to the (bullshit) “fact” that the clone was “never alive”. (It was “never alive” but it had grown up to become an adult Lana Lang.) Lana also killed a couple of non-cloned people including Genevieve Teague so she should be in prison anyway. (I don’t dislike Lana but even beautiful people go to jail when they kill people, right?)

    • It’s true that using someone’s egg cell and thus ending up with a clone with different mitochondrial DNA is the closest way to reality of making a clone. It’s also true that sci-fi cloning is so far from reality anyway that there’s no reason to expect it to be close to reality in this particular way. (I don’t know if standard crime-related DNA tests are sensitive enough to detect such a tiny difference, anyway–mitochondrial DNA is a tiny portion of the genome, and the difference in it would be even tinier.)

      As for clones being “never alive”, that doesn’t necessarily mean it has no biological processes. It probably means that the clone was not a person–that it had no brain activity. If the clone has no brain activity, it’s just a bag of organs, which are literally alive, but there are no moral problems with killing it. Since the Lana clone was *not* walking and talking, this could keep Lana out of prison (but not Lionel).

      • Martin Phipps

        Legal or illegal, it’s a crying shame that she killed her clone. I can think of much better uses for a Lana Lang clone than using it to fake Lana’s death. Presumably Lex himself was planning to, um, use the Lana Lang clone if Lana ever left him.

  3. Martin Phipps

    There is absolutely no mechanism, constitutional or otherwise, for direct democratic referendum on any piece of federal legislation.

    It is possible for somebody to know a lot of biology and be completely ignorant of law so forgive me if this is a stupid question.

    Do we _know_ that the VRA was a federal law? What if it were just Kansas law? Could they have a referendum then? That’s what crossed my mind when I originally watched the episode.

    • I’m pretty sure that it was some manner of act of Congress. Otherwise one Gen. Wilson wouldn’t have been involved, nor do I imagine that Star City is in Kansas, and Oliver seemed to be followed there by government agents. It also beings into question who the Kansas State Legislature built bases all over the world (or at least within US territorial waters).

  4. Dennis Castello

    I’m curious, have any comic (or television) writers sounded you two out on legal elements of the stories they are writing? Seems like they really should.

  5. Melanie Koleini

    Ken Arromdee said “It’s also true that sci-fi cloning is so far from reality anyway that there’s no reason to expect it to be close to reality in this particular way. (I don’t know if standard crime-related DNA tests are sensitive enough to detect such a tiny difference, anyway–mitochondrial DNA is a tiny portion of the genome, and the difference in it would be even tinier.)”

    While I agree cloning in the comic book universe may not involve using someone else’s egg cell, differences in mitochondrial DNA can definitely be detected in real life. Mitochondria contain some of the most highly variable sequences of DNA. Also, it is often possible to extract mitochondrial DNA from samples where the nuclear DNA is too degraded to test.

    A lab may not extract mitochondrial DNA if they are comparing 2 good quality samples, since the mitochondria only shows evidence of the maternal line. But if 1) a sample is of low quality, or 2) you want to find out if 2 people were of the same maternal line (but not necessary mother and child) the mitochondrial DNA will be extract and compared.

  6. Perhaps Smallville doesn’t occur in our universe, but rather, in an alternate reality that has federal referenda?
    Thus the writers would not actually be in error; they are merely making a gradual reveal of the differences between our realities. One can imagine a civics class in Smallville where the teacher asks the students to ponder the implications of a nation without direct popular vote: “Why, students, wouldn’t that mean that Congress could pass a law and the people would have no recourse? A man who got fewer votes nationwide could still become president. What a foolish system!”
    The class would laugh at the idea, and we viewers would get a better idea of just how alien Smallville is!

    • Ryan Davidson

      Well it doesn’t occur in our universe–DC calls our Earth “Earth Prime”–but one of the basic tenets of most comic books is that the world is the same as ours unless they specify otherwise. There being no indication that their political system is any different than ours, it’s supposed to be safe to assume that it isn’t.

  7. I’m still confused over what the VRA does (other than set up secret underwater military prisons and such which I doubt were really part of the bill). Apparently in Smallville it’s perfectly legal to grab a bow and go around shooting petty thieves unless the federal government passes a law specifically making it illegal. I’m all for self defense, but there’s a difference between shooting someone who’s attacking you while you were minding your own business, as opposed to putting on a mask and going bad-guy hunting.

    Aren’t the Blur, Green Arrow, etc. exactly what the law describes? Vigilantes, like the Punisher or the guy from the Death Wish movies except for a little less bloodshed. Are Clark and friends really pushing for everyone to take justice into their own hands? Or do they just think they are special enough to deserve special rights allowing them to do hero work that “normal” people aren’t allowed to do? (Hmm… maybe they could try to get some Act passed allowing a special Registration which lets them do Vigilante work or something…)

    • Ryan Davidson

      Two things: first, we’re all confused over what the VRA does too. It’s never actually explained, and exactly how we get from “registration” to “gestapo” isn’t spelled out even as clearly as it is in Marvel’s Civil War. So there’s that.

      But second, the legal status of costumed vigilantes–and that’s what superheroes are, make no mistake–is questionable. There’s definitely a right to defend both one’s self and others, but going out of one’s way to look for trouble? Problematic, especially if one is using dangerous weapons to do it. Some schmuck in Michigan recently got arrested and arraigned for hanging off the side of a building while dressed as Batman: three counts of carrying a concealed weapon, three counts of possessing a dangerous weapon, and one count of disturbing the peace. Looks like they didn’t even bother with the trespassing charge.

      This case does seem to indicate the attitude that real law enforcement officials might have towards masked heroes: more trouble than they’re worth. Of course, that’s a utilitarian calculus, and the presence of criminality or criminals that they could not control might change that calculus. But in Smallville‘s case in particular, Clark doesn’t seem to be involved in fighting crime that most other people know about. There’s some talk about his cleaning up the streets in season ten, but most of the Big Bads have been completely below the radar as far as the government is concerned. So there may well be some antipathy there.

      Still, generally speaking, the state is pretty used to having a monopoly on the use of force and isn’t likely to be all that excited about sharing.

  8. Have either of you looked at Season 8 yet? Davis Bloom kills a lot of “bad” people and, as far as I know, the cases are left unsolved. While they didn’t make the connection on the show, in real life the presence of vigilantes + a lot of dead “bad” people -> vigilantes are going around killing people so let’s round them up and put a stop to it.

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