In the previous post we considered whether discrimination against mutants was constitutional under the Equal Protection Clause of the 14th Amendment and concluded that it probably was. In this post we take a look at substantive due process and whether mutants are a “discrete and insular minority.”
Substantive due process rights are derived from the Due Process Clause of the 14th Amendment: “nor shall any State deprive any person of life, liberty, or property, without due process of law.” While we ordinarily think of due process as being about, well, procedural rights (e.g. the right to a hearing), substantive due process protects rights held to be fundamental to our scheme of ordered liberty or deeply rooted in American history and traditions. McDonald v. City of Chicago, 130 S. Ct. 3020, 3036 (2010). An example of such rights that is relevant here are “the rights of ‘discrete and insular minorities’ — groups that may face systematic barriers in the political system.” 130 S. Ct. at 3101. When a law implicates such a right, the courts apply a strict scrutiny standard.
But the courts do not recognize new substantive due process rights lightly. “Recognizing a new liberty right is a momentous step. It takes that right, to a considerable extent, outside the arena of public debate and legislative action.” Id. However, “[s]ometimes that momentous step must be taken; some fundamental aspects of personhood, dignity, and the like do not vary from State to State, and demand a baseline level of protection. But sensitivity to the interaction between the intrinsic aspects of liberty and the practical realities of contemporary society provides an important tool for guiding judicial discretion.” Id.
So the questions are raised: are mutants a discrete and insular minority? do they face systematic barriers in the political system? do anti-mutant laws threaten fundamental aspects of personhood or dignity that demand a baseline level of protection? I think the answer to all of these questions is yes. Although anti-mutant discrimination is a relatively new phenomenon, it has existed essentially as long as mutants have. Such discrimination is pervasive, sometimes violent, and often backed by the authority of the state. In at least one case it has even lead to the wholesale enslavement of mutants. The discrimination goes to the mutants’ very humanity, and there can hardly be a more fundamental aspect of personhood or dignity than that.
So while the argument under the Equal Protection Clause may be somewhat weak, I think there may be a stronger argument under the Due Process Clause. Did any X-Men series ever address a court challenge to anti-mutant laws? For a couple hundred thousand dollars in legal fees the X-Men could have saved everyone a lot of trouble.