What Constitutional Lawyers can Learn from Spiderman

Constitutional law could be improved by taking account of the principle that "with great power, comes great responsibility."

Spiderman.

Stan Lee, the co-creator of Spiderman, passed away earlier this week. Spiderman is famous for his efforts to live up to his Uncle Ben's principle that "with great power comes great responsibility." The more power you have, the more important it is to take care that it be wielded justly and responsibly. Call it the Spiderman Rule: far from granting a special immunity from constraint, great power comes with heightened obligations.

This idea may seem like just basic common sense. Unfortunately, it is not sufficiently appreciated in the realm of constitutional law. All too often, courts adopt legal doctrines that enact the exact opposite of the Spiderman Rule: great power confers special immunity from judicial scrutiny normally used to protect individual rights and enforce structural limitations on authority. And all too many lawyers and constitutional theorists applaud such decisions. We would do better to take to heart the wisdom Spiderman got from Uncle Ben.

The fields of constitutional law that could most obviously benefit from greater fealty to the Spiderman Rule are immigration and national security law. Too often, judges accept claims that the president's or Congress' seemingly broad powers in these fields justify minimizing judicial review of policies that violate constitutional rights. For example, in the recent travel ban case, the Supreme Court cited deference to broad presidential power over immigration as a justification for upholding a policy that, in any other context, would be struck down due to extensive evidence of unconstitutional discriminatory motives (President Trump's promise to adopt a "Muslim ban," which he repeatedly linked to the travel ban order).The Court chose to minimize the significance of this evidence because presidential power over immigration deserves special deference, which leaves room for no more than minimal "rational basis" scrutiny of the government's actions.

This was just the latest in a long line of cases where courts have cited deference to broad government power as a justification for minimizing scrutiny of violations of constitutional rights in the immigration and national security spheres. Such deference has led the courts to uphold numerous cruel and massively harmful violations of constitutional rights. These tragic experiences might have been avoided had courts instead recognized that the breadth of government power in these areas actually makes it more necessary to ensure that the government respects constitutional rights when wielding its authority. The whole point of the Bill of Rights (and other constitutional rights), is to impose constraints on the use of government power - especially in situations where that power is otherwise very broad, and therefore particularly dangerous.

Sometimes, judicial deference to the government is defended by appeals to expertise. It is often claimed that the executive and legislative branches have special expertise on immigration and national security policy that judges cannot match. Thus, the latter should defer to the former and not subject their policies to more than minimal scrutiny.

The Spiderman Rule is relevant here, as well. To the extent that the executive or the legislature really does have specialized expertise, it is all the more important to ensure that their knowledge is being used for constitutionally legitimate purposes, rather than as a pretext to justify violations of constitutional rights. Knowledge, at least when used design coercive policies, is itself a kind of power.

In the travel ban case, the Supreme Court majority justified its deferential posture partly on the basis of the administration's claims that the ban was based on an extensive worldwide study of potential security risks. Administration lawyers claimed that the study developed objective criteria that the president then adopted. In reality, the supposedly "extensive" study was nothing of the kind, and the Administration did not consistently apply the study's "information-sharing" criteria for determining which nations should be subject to the ban. The appeal to expertise was in fact a smokescreen for the president's true purposes.

The more specialized knowledge and expertise the government has, the easier it should be for them to provide evidence showing their policies have constitutionally legitimate purposes, even without any special judicial deference. That, of course, is true in cases where the government really is using expertise to pursue a legitimate objective. If the expertise is being used to whitewash what would otherwise be easily recognized as an unconstitutional policy, then that expertise becomes pernicious rather than beneficial, much like any other special ability misused for bad ends. It is as if Spiderman started to use his specialized knowledge and power to harm innocent people rather than protect them.

At the very least, before accepting the government's assertion that a seemingly unconstitutional policy is the result of specialized expertise, courts should demand proof that the policy really is based on application of expertise used to advance the public interest, as opposed to using that expertise as window-dressing for other purposes. For example, specialized expertise on national security policy is irrelevant in a case where national security is not the true motive for the policy in question.

Special judicial deference on immigration and national security policy are primarily championed by the political right. But there are areas of constitutional law where it is the left that most often neglects the Spiderman Rule. For example, modern Supreme Court precedent holds that Congress' power to regulate interstate commerce is so broad that it extends to virtually any "economic activity" so long as it "substantially affects" interstate commerce. On top of that, courts defer to the government's assertions that such a substantial effect actually exists so long as there is a minimal "rational basis" for the claim. This leads to rulings like Gonzales v. Raich (2005), where the Supreme Court held that potential effects on interstate commerce were enough to uphold a federal ban on the possession of medical marijuana that had never crossed state lines or been sold in any market.

In Kelo v. City of New London, the Supreme Court ruled that the Fifth Amendment's requirement that government can only take private property for a "public use" is satisfied by virtually any potential "public benefit." It then also ruled that the courts should defer to the government's claim that such benefits exist, and not require proof that they will actually materialize.

Both Raich and Kelo were championed primarily by liberal Supreme Court justices (though the latter was opposed by many liberals outside the Court). These rulings - and others like them - relied on the notion that the government has specialized knowledge of the effect of regulation on interstate commerce and the effect of takings on local economies. But, as with the travel ban case, it is far from clear that objective application of expertise on such matters really was the true impetus behind the policies in question. In Kelo, it is likely that they relevant decision-makers never had much in the way of specialized knowledge in the first place (or, at least, were not very good at using such knowledge as they did have). The development project for which numerous homes were seized was badly designed from the start, and nothing was ever actually built on the condemned property. Today, thirteen years after the Supreme Court approved the takings in a decision citing the City's "carefully considered" development plan, the property is occupiedly only by feral cats. A Court cognizant of the Spiderman Rule might have prevented this tragedy.

The Spiderman Rule does not justify strict judicial scrutiny of every challenged government policy. Many policies simply do not plausibly threaten constitutional rights or breach structural limitations on government power. In such cases, it may not matter whether the government has a good justification for the policy or not, or whether it has used its expertise properly. Alternatively, judicial deference can be justified on the theory that the victims of the policy in question have no relevant constitutional rights (even if other people do), or at least none that have great significance. For example, the travel ban ruling can be defended on the theory that the Bill of Rights does not protect potential immigrants located outside the United States (I criticized such reasoning here). Kelo may be justified if you believe (as some legal theorists still do) that property rights and other "economic" rights have little importance and do not deserve more than minimal judicial protection.

But the Spiderman Rule does have bite in situations where the government tries to evade normal scrutiny of possible violations of the Constitution by claiming it has broad power over the relevant issue or that it deserves deference because of its specialized expertise. The more power and expertise the government has, the greater the risk of abuse, and the more need to ensure it stays within constitutional bounds. As Thomas Jefferson put it, "[i]n questions of power,… let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution." Jefferson wasn't quite as pithy as Spiderman's Uncle Ben. But the two hit upon the same important idea!

UPDATE: Legal scholar Howard Wasserman comments on this post here:

I agree with Ilya that excessive judicial deference is a problem. But it seems to me the Spiderman Principle does not get us very far, because it cuts both ways. The courts would argue that deference and referral to expertise is compelled by the Spiderman Principle--it is how they bring some responsibility to temper the exercise of their great power to declare invalid the executive's conduct.

I certainly recognize that the Spiderman Rule doesn't solve all problems related to deference, and that judges also have their flaws and temptations. But, at the very least, it shows why courts should not pay special deference merely because the case in question involves a policy area where the executive or legislature has great power or expertise. As for disciplining the judiciary itself, there are other ways to do that, without resorting to special deference doctrines. For example, judges can rigorously adhere to methodologies (whether originalist or otherwise) that provide neutral standards for determining when a constitutional violation has occurred.