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Watching the Watchmen

By Jack M. Balkin

Quis custodiet ipsos custodes? This question posed by the Latin satirist Juvenal is familiar to anyone who has read a basket of books on judicial review. I?ve seen it translated as ?Who will guard those selfsame guardians? in the context of asking: if the Supreme Court is the guardian of the Constitution, who will ensure the Court follows that supreme law? In the next few weeks, you are more likely to see it translated as ?Who will watch the Watchmen?? as we move toward the opening of the film based on Watchmen, a famous graphical novel. Fragments of this question appear throughout the story as the ?superhero? vigilante characters (all but one lack superhuman abilities) grapple with various moral dilemmas.

Last week I tested my students? awareness of the movie, which was quite high. I used it to discuss the meaning of the Latin phrase, but the novel?s story is not without constitutional interest. In the alternate reality 1980s of Watchmen, Richard Nixon is in his fourth term as president. The 22nd Amendment, barring more than two presidential terms was repealed when he won the Vietnam War and led the U.S. to a position of dominance over the Soviet Union with the help of ?Dr. Manhattan,? the one person with superhuman abilities, the victim of a science experiment gone wrong. The other Watchmen are ordinary humans (albeit with some extraordinary talents) who have fought crime according to their varying codes of morality. One of the reasons the novel has enjoyed such success is that the moral choices the characters face seem real, despite an ultimately implausible (at least to me) plot. Here?s something else worth thinking about for those who remember the Cold War. In the novel, the dominant position of the U.S. has not promoted national security. Instead, by backing the Soviet Union into a corner, it has virtually guaranteed a nuclear war. Dr. Manhattan is a literal deus ex machina, but even with god-like abilities, he cannot stop every nuclear warhead. How this gets resolved I?ll let you discover. Or your students can tell you.

Full post as published by Balkinization on February 23, 2009 (boomark / email).