This post continues our series on the first issue of Ultimate Comics: X-Men, in which we discussed (spoiler alert!) government tort liability for the creation of mutants through genetic experiments gone awry. This time around we’ll be talking about civil rights and the limits of government power.
In this alternate universe, human-mutant relations have deteriorated to the point that mutants have been ordered to be interned in “Containment Centers.” Any mutant who refuses to turn himself or herself in may be shot on sight. It is not clear if the law makes it legal for anyone to shoot a mutant or only for the police or military. Curiously, the book refers to the “apprehend or execute statute” as well as Executive Order 3144. This is not necessarily a contradiction, however. There could be a law giving the President broad powers to address the “mutant threat,” and the President could have issued one or more executive orders pursuant to those powers. This is consistent with the historical inspiration for the storyline, which we’ll discuss in a moment.
The bigger question is: is this possibly legal in the first place? Perhaps surprisingly, the answer is only probably not. Why only
“probably? For the answer we have to turn to the historical parallel to this storyline: the internment of Japanese-Americans during the Second World War and the case of Korematsu v. United States, which challenged the constitutionality of the “exclusion zones.” The Supreme Court upheld Executive Order 9066, which created the exclusion zones, in a 6-3 decision, despite applying the strict scrutiny standard for racial discrimination. Although most (if not all) current Supreme Court justices are on record as regarding Korematsu as either wrongly decided or at least lacking in precedential value, the case has never been formally overturned.
This is significant because anti-mutant discrimination is apparently not subject to the same kind of judicial scrutiny as racial discrimination in either the regular Marvel Universe or (obviously) in the Ultimate Comics: X-Men universe (although we have suggested that there’s a good argument that it should be). Thus, if mutants are not legally protected from discrimination, then the courts might allow the internment of mutants despite the tenuous thread that Korematsu hangs from because affirming mutant internment would not require affirming Korematsu.
The other major issue is the “apprehend or execute” law, but this part is pretty much impossible to justify. Although police officers may constitutionally use deadly force to stop a fleeing dangerous suspect when it is reasonable to do so (Scott v. Harris, 550 U.S. 372 (2007)), it is very hard to claim that all mutants are inherently dangerous enough to make “apprehend or execute” a reasonable policy (Exhibit A: the mutant known as Chickenwings).
Of course, individual mutants who resisted violently could find themselves subject to deadly force, but that is no different from ordinary criminals in the real world. Going further than that would violate either the Fourth Amendment right to be free from unreasonable seizures (as discussed in Scott) or the right to Due Process (if the law expressly authorized extrajudicial killing).
So far this is shaping up to be a good series. The next issue comes out this week, so check it out!