From Preethi v New York 293 U.S. 367 (1934):
The State of New York has provided such significant encouragement, both overt and covert, that the actions of Superman must be judged to be that of the State. [...] It is this Court's considered opinion that there would not be much use to Constitutional protections if the State could do an end run around those protections through the use of private parties. By engaging in the same type of work as the Metropolis police department, and with their cooperation and approval, Superman may fairly be described as a state actor.
From Shoe v New York 293 U.S. 377 (1934):
Obtaining by enhanced senses any information regarding the interior of the home that could not otherwise have been obtained without physical intrusion into a constitutionally protected area constitutes a search. [...] In permitting the use of this evidence upon trial, we believe prejudicial error was committed.
From The Daily Planet, anonymous letter to the editor, December 19th, 1934
Taken together, there can be no question that these rulings severely curtail Superman's ability to effectively conduct law enforcement within the United States. In the coming months, dozens if not hundreds of appeals will be filed on the premise that Superman has engaged in procedural error, in which the Metropolis police department and others were complicit. The Fourth Amendment of the Constitution has been incorporated against the states, which many see as a worrying expansion of federal power. Yet while people argue over what the right legal structure for dealing with Superman is, what they seem to miss is that Superman only obeys the laws because he chooses to. He has already graciously said that he will abide by these rulings, yet one has to wonder what the Man of Steel actually thinks of them. All too often, we forget the enormity of his powers and treat him like a constant, but what man can exist without change?
Lois and Clark stood outside the Metropolis Courthouse with the other reporters, waiting for the verdict. Calhoun's trial had been sped through, and there was little doubt that Superman had used pressure of some sort to make that happen. The early portion of the trial had been marked by an enormous amount of evidence being thrown out, with the judge citing the new Supreme Court rulings. A number of the charges had been dropped after that, though it was still enough to put Calhoun away for the rest of his life. Bail had eventually been set at one hundred thousand dollars, which Calhoun had happily paid as though it were chump change to him. Clark no longer smiled when the topic of the case came up. He'd submitted an article to Perry about corruption in the case. It alleged witness intimidation, jury tampering, and juror misconduct, but his sources were shaky and couldn't be verified to Perry's satisfaction.
"Not guilty!" came a shout from within the courthouse. The reporters began to crowd around, to get a picture of Calhoun or shout a question out to him as he walked out. Lois went with the pack, but Clark stayed behind. He had a defeated look on his face, like he'd known that it was coming but hoped he was wrong. Lois got her comment, and Clark wrote up an article about how Superman was nearly useless in the face of organized crime with the laws the way they were.
A week later, someone began setting fire to the homes of known or suspected abortionists. Superman stopped them, which caused a significant controversy. So far as Lois could tell, that was the whole point.
"Why do you think Superman doesn't stop abortions from happening?" asked Lois. It was a question that many of her fellow Catholics had asked for a long time. She'd been practically mobbed by the other churchgoers when she'd gone to Christmas Mass, since people seemed to think that she and Superman were as close as two peas in a pod. In their defense, The Daily Planet hadn't been quick to correct that view.
"He used the term unambiguous good, didn't he?" asked Clark. Lois had predicted that Metropolis would eventually break him, but she hadn't thought it would be such a long, slow decline.
"Well that's the whole idea," said Lois. "If Superman isn't stopping the abortions, then that means he doesn't seem to think stopping them is an unambiguous good."
"He wants to avoid the controversy," said Clark. It was clear that his heart wasn't in the conversation.
"Avoiding controversy outweighs unambiguous goods?" asked Lois.
"I don't know," said Clark. "The world is complicated. I'd really rather not talk about this."
Early on, Clark had been eager to engage her. He'd liked having her attention of course, but he'd also been more sure about himself then, more convinced that he could get her to come around to his way of thinking. It wasn't just that she'd worn him down though, everything about him had started to become so … mechanical. It hadn't affected his work, and if anything he had been increasing his output. But the spark that was Clark Kent was dimming, and Lois wondered if there was anything she could do about that. She and Clark were more colleagues than friends, but she spent more of her time with him than anyone else, at least when they weren't out in the city chasing down stories.
"Do you want to go see the mural after work?" asked Lois.
"Sullivan already covered that," said Clark without looking up from his typewriter.
"I said after work. I meant more as something to look at," said Lois. "For entertainment. Which I think is the point of it." Clark looked at her. "Not a date or anything like that, just friends. And maybe afterwards we'll get a bite to eat somewhere?"
A slow, cautious smile crept onto Clark's face. "Sure, I'd like that."
When the mural was finished it would stretch for three city blocks, but so far only two blocks of it had been completed. It was a mosaic made up of small tiles, each about the size of a fingertip, visible as a coherent image only from a few steps back. They started walking it from the end that was supposed to represent the past, when the island that Metropolis was built on was home to the Lenape Indians.
"It's white-washed," said Clark. "But I don't suppose anyone expected anything else. None of the subjugation or slavery that marks the actual history of the city. There should be men in collars somewhere around … there."
"Clark, I know you're still a bit raw about Calhoun getting off," said Lois. "But you've got to snap out of it eventually."
"It's not just him," said Clark. "It's all the rest that are just like him. Do you know how many guilty men go free?"
"Better for ten guilty men to go free than one innocent man rot in jail," said Lois.
"Why that number?" asked Clark. "Why ten and not five?"
"It's not meant to be literal," said Lois.
"I'm just curious," said Clark. "It's in the Bible, did you know that? Genesis 18:23 'And Abraham drew near, and said, Wilt thou also destroy the righteous with the wicked?' The numbers were different though. God said that if he could find ten innocent men in the whole of Sodom and Gomorrah he would refrain from raining down brimstone and fire."
"That's kind of gruesome," said Lois. They walked past a colonial scene of men planting crops and raising cattle. It was unimaginable that land in Metropolis had once been cheap enough that you could farm it.
"In the end, God destroyed Sodom and Gomorrah," said Clark. "Because it was a place of evil. But he saved the only innocents in it first, because God is perfect, and that was within his power."
"Unfortunately," said Lois. "The justice system is run by men. There's a distinct lack of perfection. Are you just figuring this out now?"
"No," said Clark. "Believe me, I know how imperfect people can be." He bit at his lip. "I don't know, maybe I just never studied history as closely as I should have. It's easy to forget that slavery ever happened, you know? And there are crimes against humanity that are just swept under the rug, forgotten by everyone, though you could still find the mass graves if you looked hard enough."
"Jesus Clark," said Lois. "You really know how to show a girl a good time."
Clark was silent after that, but she could tell he was still thinking along the same lines as before and just not saying anything out loud. She wished that the final part of the mural had been finished, so that they could talk about something more pleasant. She'd heard that it was going to be like something out of science fiction, with spaceships going to the moon and robots serving people dinner. Lex Luthor was the man behind the project, and he'd proven himself an optimist. It was somewhat comforting that the future history of the world was going to be written by men like him.
"Do you think that Superman should have just killed Calhoun?" asked Clark.
"No," said Lois. "Can you imagine the panic that would have caused?"
"No one would have to know," said Clark. "Superman could just abduct him and drop him in the middle of the Pacific to drown."
"Superman wouldn't be that cruel," said Lois. "Even the state tries to keep their executions as clean and painless as possible. And that's all a moot point. Superman doesn't kill, everyone knows that. Your average criminal would rather be arrested by Superman than the cops, because Superman is gentle."
"You're right," sighed Clark. "They take him for granted. The whole trial with Calhoun proved that. No one feared what Superman would do when the verdict came down. They didn't think it was suicidal to challenge Superman's will. And they were right."
It was time for a change of tactics. "Clark, can you talk to me about life in Smallville?" asked Lois.
"You hate Smallville," said Clark.
"I was a military brat, and I grew up all over the country," said Lois. "I lived in a couple places like Smallville, and I was always bored. But I think maybe I've been projecting my own experiences onto what I've been imagining. So come on, I promise not to make fun. You never talk about it anymore."
Lois had been right. Smallville seemed to be just the trick. There was no more talk about mass graves or killing the innocent along with the guilty. Maybe it was just because she'd spent so long around Clark, but where she'd rolled her eyes at his stories about small town Kansas before, now she was almost interested. As he talked, he grew more animated, until his mood had visibly improved. From there it wasn't that difficult to keep him upbeat, and after a long talk about the possibilities of the future in front of the unfinished section of the mural, they'd gone out for dinner and then drinks, though Clark only had soda water. Lois wasn't sure whether he wasn't so bad as she'd thought he was, or whether she'd just been worn down by his constant presence. Either way, Operation Cheer Up Clark had been a rousing success, and when he came into work the next day he was nearly back to his old self.
Everything started to fall apart two weeks later when the governor's children were kidnapped.
Lex Luthor was slow and careful.
He never said the name "Clark Kent" out loud. There were hundreds of Clarks in Metropolis, and hundreds of Kents, but so far as Lex could find, there was only a single Clark Kent. It wasn't inconceivable that every time he heard his full name his super hearing kicked. Everyone chattered about Superman all day, but surely very few people talked about Clark Kent. He was a reporter, and his name appeared in nearly every issue of The Daily Planet, so perhaps there was some cover there, but Lex wasn't about to risk it. He had Superman's secret, and it was the most precious thing in the world.
Getting records was difficult. Lex had set himself up as one of Superman's champions, a man inspired by a zeal for the alien that few others had. He was the chair of the Conference on Extraterrestrial Science and two other organizations, and somewhat noted as a collector of information. Now this was working against him, because any connection he formed with Clark Kent would be immediately suspect. If Lex had simply remained an anonymous businessman, there would be nothing too surprising about him purchasing The Daily Planet and looking through its files. But for Lex Luthor the Superman scholar to do it - well, there was no way that Superman wouldn't suspect something.
Lex was moving slowly, and the other players in the game were getting creative. He was certain that Willie Calhoun was one of them, but didn't know what intent would explain the actions. There were smear campaigns and contrived moral quandaries - attempts to put Superman in a position where his values would be challenged. Thankfully, none of it seemed to affect the alien. Lex would have killed Calhoun if he could have seen a way to do it. It would have been worth it just to stop the plots. There were so many contacts and lines of communication that had been burned in the last few months though, and so few ways of getting dirty work done. Worse, a failure might alert Calhoun. Lex could only hope that he would figure something out about Clark Kent before Calhoun or someone else made Superman angry.
Willie Calhoun was losing.
He'd won in court, but everything else was in a shambles. Crime was dropping in Metropolis all over the place, and loyalty seemed to be a thing of the past as more and more people moved away. The ones that were left were animals, idiots without the proper restraints. Willie had once had money, and a nice house, but he was in debt to the banks now with no way he could see of getting out. He had no real skills he could use in the real world, and no real nose for legitimate business like Luthor. He was getting old, and this was the end of the road.
"Fuck Superman," said Willie to his empty office. He hoped the alien would hear. There was hardly a day that went by without some new fantasy of what he'd do to Superman if the alien weren't invulnerable. It was comforting, thinking of ripping into that impenetrable flesh.
Superman had cast a spell over the city, one that grew with every passing day. The last time that people had really doubted him was during the bombings, when they'd wondered why it was that he wasn't doing more. What Willie needed to do was to replicate that feeling. If the people stopped believing in Superman, maybe he'd finally fuck off and fly away. All the worst psychopaths of Metropolis had been left in Willie's employ, and it was time to use them.
The governor's two children were abducted on their way home from private school. The abductors had used chloroform on both the driver and the children. The operation must have been carried out in nearly complete silence to prevent Superman from hearing, but this was par for the course in Metropolis. The driver was found laid down in the front seat with his throat slit. By the time Superman had arrived at the governor's mansion, an hour had passed and the kidnappers were long gone. No ransom note ever came. The radio and newspapers latched on to the story, and someone from somewhere had dug up a picture of June and Robert Whitman waving at Superman as he flew through the air, which only added fuel to the fire.
It was five days later that Lois found another letter perched on her desk, again requesting that she come up to the rooftop. She grabbed her pencil and notepad, then made the trek up.
"Hello Lois," said Superman. He stood with his back to her, looking out over the city. His cape flowed out behind him. Even after all this time, Lois couldn't help but see him as anything but a god.
"Superman," she replied. "What brings you to my neck of the woods?"
"I found the governor's children," said Superman. He didn't turn around to face her.
"And are they alright?" she asked.
"No," replied Superman.
Lois was quiet for a moment. She'd been covering the story double time, since Clark was out with the flu. She'd been hoping it wasn't the Lindbergh baby all over again. "Were they-"
"Off the record?" asked Superman.
Lois hesitated for a moment, then tucked her pencil behind her ear. "Sure."
"I found them in a farmhouse forty miles outside of Metropolis. They had June in the kitchen on a table," said Superman. "Laid out on her back. Only eleven years old and they were-" Superman stopped. "I barely recognized her. They were taking turns with her."
Lois felt her stomach churn. She didn't want to be hearing this.
"Robert had been put into the refrigerator," Superman continued. "Nine years old, and they'd used a hatchet to get him into small enough pieces that he'd fit on the shelves."
Superman kept clenching and unclenching his fists, and Lois could only think about how much power he was exerting when his knuckles went white. Enough to turn coal into diamonds, probably.
"There were three men there," said Superman. "Three men, and they were - animals. Monsters. June had a gag in her mouth, and she was screaming around it." He took a breath. "I flew in as fast as I could. I pulled her out of there and flew her to the nearest hospital. She beat against my chest the whole time, crying and shouting. Either she didn't realize who I was or - or she realized, and she hated me for being too late." He swallowed hard. "And then I went back for the men."
Lois wanted to say something, but the words were stuck in her throat.
"Do you know what I did to them?" asked Superman.
Lois took an involuntary step back. She couldn't help herself. She could see the anger radiating off of him now, barely kept in check. It had been there the whole time, as plain as day, she just hadn't thought to look for it. The muscles on his neck were strained and his teeth were clenched. "What did you do?" she asked in a soft, small voice.
"I arrested them," said Superman.
"You … what?" asked Lois.
"It would have been so easy to kill them," said Superman. "No one's seen the upper limits of my strength. I could have just snapped my fingers and -" He did just that, and there was a thunderclap. It left Lois's ears ringing. "- like that. Dead. I could have pushed my fingers straight into their brains, faster than a speeding bullet. It would have been better than they deserved. They deserved to be chained up in the deepest, darkest cell I could make for them and slowly starved to death."
"Superman," said Lois, but there wasn't any set of words that could come after that to make everything okay.
"I can't keep doing this," he said. He finally turned around, and she could see tears in his eyes. "I can't keep pretending that I'm someone that I'm not - some paragon of truth and justice. I'm just -" he seemed to start to say something but changed his mind. "Just an alien from the planet Krypton. I'm not perfect."
"No one is asking you to be," said Lois, but she knew that wasn't true. Millions of people were clamoring for Superman to be a million different things. They assumed he was perfect, they just thought he was perfect in the wrong way. "They just want you to try your best."
"My best? I can hear everything going on in the world right now," said Superman. "No one thinks about what that means." He pointed to the north. "Just there, six miles away, a house is on fire. The family has evacuated, but their possessions are burning. A little girl is crying because she left her doll behind, and I can see it melting. She's calling out for me to do something. Over there, two miles down the road, a man just punched his wife in the mouth, and shouldn't I be going to stop him from doing it again?" He pointed east. "There was a flash flood in China a handful of minutes ago. I can hear three women choking to death. If I left now, I might be able to save them." He pointed to the south. "There was a car accident near Atlanta, eight seconds ago. When the windshield shattered it sliced a man across his neck. If I left now, I might be able to get him to the hospital before he bleeds out." He shook his head. "But I'm not doing anything to help anyone. I'm standing here on this rooftop, talking to you."
Superman stared out over the city, unmoving. Lois watched him.
"It's not selfish to take time for yourself," said Lois. She tried to keep her hands from shaking. She was scared of him, and she wondered whether he could tell. "If that's what keeps you sane, there's no shame stopping to take a breath."
"Of course there is," said Superman. "Do you know why I wanted to kill those men? It wasn't just because of what they'd done. It's because I didn't do enough. I was busy taking time for myself. Those men were monsters, but I'm a monster for not doing more. I'm a fraud."
He was silent for a long moment, staring out into space while he listened to people die. "I really should be going." Lois tried to think of something to say, but Superman stepped backwards off the roof and plummeted downwards. The last thing she saw was his cape fluttering behind him.
Her heart was hammering away in her chest. Her palms were sweaty. There was no force in the world that could stop Superman. He was being pushed harder than he could handle, and she was the only one that knew. He'd revealed himself to her in confidence, but what she now knew was bigger than any promise. Superman was unstable. She had no idea what to do about that.
Lex Luthor had done some quick, sloppy math.
Superman spent a minimum of four hours a day as Clark Kent. He didn't spend the entire day in the office, and was often out in the field reporting on something or another, which gave him some time to be Superman. Lex Luthor had read every article written by Clark Kent over the past year, and there were some trends that suggested to him that much of the information was gathered through the use of x-ray vision and super-hearing. Clark Kent rarely used direct quotes, and rarely claimed that he'd asked someone a question. He also had a tendency towards unnamed sources. So call it four out of every eight hours of every workday as Clark Kent. Forget for a moment that Superman went about his do-goodery in an incredibly inefficient way and just crunch the numbers with best guesses about the variables and probabilities.
The existence of Clark Kent cost four people their lives in the average day. A human life was worth less to Superman than the ability to sit at a desk for an hour. And that was just actual death. If you included rape, assault, property damage, and theft, it became even more atrocious. Lex immediately revised his estimate of the existential risk posed by Superman upwards by a substantial amount.
Lex had investigated the Clark Kent issue as much as he could from as remote a distance as possible. There were a number of troubling aspects to it, aside from what it implied about Superman's psychology and the value that Superman placed on human life.
Clark Kent's first byline for The Daily Planet had preceded Superman's arrival by three months. Superman had claimed to study the world for two weeks before intervening in human affairs, but that was clearly a lie. And where had Clark Kent come from? You couldn't just get hired without paperwork and references. It was admittedly possible that a number of people were in on the deception, but Lex thought it unlikely. He'd spoken to Lois Lane in person on a number of occasions, and she hadn't let even the smallest false note slip. Even if she were a masterful liar, now that Lex knew the truth he should have been able to spot something in retrospect. He would speak to her again to make sure, but if Superman's interviewer weren't in on the secret, Lex couldn't imagine anyone else would be either.
No, the signs pointed to Clark Kent existing in some respect prior to his arrival in Metropolis, and this buried past was where Lex needed to be looking. He hired out a private investigator to strike up a conversation with a photographer at The Daily Planet named Jimmy Olsen, and when the topic of a recent article came up, Jimmy was all too ready to spill the beans on Clark Kent. He'd been obliging enough to provide a location: Smallville, Kansas.