Ultimate Comics: X-Men #1, Part 2

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!

15 responses to “Ultimate Comics: X-Men #1, Part 2

  1. [Opening remark: I don’t read the series.]
    Not sure if this has/will be addressed elsewhere, what of the mutants who don’t think they are mutants? We have high powered mutants, but what of those who can run 10% faster? Or can walk with mutation but can’t without? They might not see themselves as mutants. (Let alone ‘he’s a mutant, arrest him!’ paranoia.)
    Conversely, any mention of wrongful arrest/murder of suspected mutants who turn out to be non-mutants? (Gold contact lenses!)

    [If this hasn’t been even touched on, replace ‘mutant’ with ‘Japanese’ under the previous case.]

  2. I’m fairly certain that a good portion of the Japanese were picked up based on immigration records (their own, parents, grandparents or even great grandparents).

    You are quite correct about the mutants though, what does one do if it is a mutation, but not immediately visible.

  3. Apprehend or execute

    “it is very hard to claim that all mutants are inherently dangerous enough to make “apprehend or execute” a reasonable policy”

    Is it perhaps enough to make the claim that SOME of them are therefore they should be apprehended until the danger can be determined? Dont read the series so not sure what examinations take place on captured mutants which may make my argument irrelevant.

    Just to make my point perhaps better if one mutant in a million has a ‘power’ of creating the new great plague (lets say it is fatal to 60% of the population, airborne and has a long infectivity period prior to symptoms) once every 13 days but is indistinguishable from other mutants would that justify the policy. If it does then does the POSSIBILITY of such a mutation justify it?

  4. There is one legal parallel to apprehend or execute: Missouri Executive Order 44 (http://en.wikipedia.org/wiki/Missouri_Executive_Order_44), in which Governor Boggs, after the initiation of the Mormon War, declared “the Mormons must be treated as enemies, and must be exterminated or driven from the State if necessary for the public peace—their outrages are beyond all description.” The order was rescinded in 1976 under Missouri Governor Kit Bond, on the basis of its unconstitutionality.

  5. Elaborating on James Enright’s question, where exactly is the line drawn between “mutant” and “not a mutant?” Mutation, as Patrick Stewart’s voiceover sagely informed us, is the key to our evolution. We are human because our genes mutated from those of earlier hominids, and there are still ongoing mutations spreading through the human population today. A mutation that allowed lactose tolerance in adulthood emerged in Northern European cattle-herders 5-6000 years ago and independently in Africa 3-4000 years ago. So those of us who can digest milk as adults are mutants compared to those who are lactose-intolerant as adults. (That’s right, I’m mutant and proud!) And what about the mutation that causes colorblindness? Or the mutations that give people blue eyes or red hair? For that matter, a study back in June announced that every human’s genome contains an average of 60 new mutations, most of which have no effect.

    So we’re dealing with one hell of a slippery slope here. When every human on the planet has dozens of mutated genes, when many (or, arguably, all) widespread human traits are a consequence of mutation, how in the world can the law define a meaningful difference between a normal human and a mutant? Basing it on mutations that create unusual appearances would mean that every blue-eyed redhead would have to be thrown in a camp or shot on sight. Basing it on mutations that impart unusual abilities would mean that every adult who can digest cheese would have to be put away. So where do you draw the line?

    I suppose you could try to define some sort of cutoff date — someone is a mutant if they manifest significant mutations that didn’t exist prior to, say, 1945. But that would mean Wolverine and Apocalypse wouldn’t count as mutants (unless they’re much younger in the Ultimate universe). And it might require extensive genetic analysis to confirm whether a mutation existed before a certain generation. And you’d still need to define the cutoff line for a significant mutation. Is it a mutant ability that can be used to inflict harm? Perhaps, but that can be defined very broadly. Flying isn’t intrinsically harmful, but Warren Worthington could always, say, drop a rock on someone’s head from a height. And a lot of destructive powers aren’t visible on sight — you couldn’t tell just by looking at Magneto that he could tear a whole skyscraper down on your head. Whereas someone who’s visibly altered from human, say, someone covered in reptile scales, may be completely harmless. So how does a “detain/shoot on sight” law possibly work?

    • This issue was examined in the X-Men (Nimrod (if I recall correctly), the super sentinel that decided that its mission to kill all the mutants extended to killing all the humans, because we’re all mutants.

      Heck, thematically, it goes back to Star Trek, when the Nomad probe decided to kill all the “imperfect” life forms…

  6. Several people have commented above about the feasibility of detecting mutants, especially those who can pass as human. The first issue hasn’t addressed how mutants are identified, except to show that Sentinels can do so with apparently high accuracy. So far I think we have to take it for granted that there is an identifiable, discrete mutation.

    • But one mutation couldn’t produce such a variety of different powers. Unless it were something like a gene that interacted with various different genes to produce different effects. Most genetic traits require the interaction of multiple distinct genes to produce a specific result. So if there were a specific gene grouping that altered the way other genes expressed themselves, maybe that could be the so-called “X gene” behind mutant powers. That’s a huge stretch, but since we’re talking about comic-book biology, it’s possible.

      Still, historically, when societies have defined some groups as being legally distinct from other groups, they haven’t based those definitions on solid biology or genetics, but on societal assumptions about what differences mattered. And the Sentinels would only be using the parameters that were programmed into them by their creators, or by lawmakers. So there’s good reason to question the basis for their definitions.

      • Oh I agree that the biology is tenuous at best, but this is after all a blog about law, not science. Our usual approach is to take the facts as given and apply real-world law (although we will sometimes note if the facts are glaringly inaccurate or implausible). So if the book says there’s a consistent, identifiable genetic marker for mutant powers, then we won’t spend much time disputing that.

      • The basic idea doesn’t really make sense, but it’s a fact that we have to accept for the story to work. Basically it’s the same as buying the idea of someone getting increased strength and endurance because they were bitten by a radioactive spider.

      • Martin Phipps

        I haven’t read comics since the 90s but I remember that this was how it was explained for the 616 universe. Even back in the sixties, Roy Thomas (who took over the writing of X-Men from Stan Lee when Stan became the Editor of the Marvel line) was aware of the problem: he had a character save mutant kind by explaining (in X-Men 59) to a group of Sentinels that ALL humans were mutants because they had evolved from lower primates so “protecting mankind from mutants” made little sense. (Later, in Avengers 102-104 the Sentinels came back having decided that if all humans are mutants then they’ll kill us all.)

        The Sentinels came back again in the 80s. Now the Sentinels were able to distinguish humans from mutants due to the presence of an “active x-gene”. It was explained in the comics like this: all humans carry the X-gene, a gene that was supposedly implanted in humans over a million years ago by the alien race known as the Celestials. The X-gene activates itself in combination with other genes. Thus, the son or daughter of a mutant in the 616 universe is usually a mutant because offspring have similar genetic make up to parents but the mutant powers will differ because the offspring are not exact clones of the parents.

        I swear I’m not making this stuff up. http://en.wikipedia.org/wiki/Celestial_%28comics%29#Biography

        Anyway, active X-genes emit low levels of radiation that Sentinels can detect. Now, one storyline (X-Factor #13-14 (February-March 1987)) had a Sentinel ask itself if killing mutants is enough if ALL people carry the X-gene in which case mutants will continue to pop up in the future as two normal humans can have children with mutant powers. So it is definitely canon in the comics that all humans carry the X-gene but it is only active in mutants.

        On top of that, humans and mutants emit different “brain waves” and this enables Cerebro to detect mutants anywhere in the world. A telepath like Professor Xavier can use Cerebro to read the mind of anyone in the world and pin point their location. So there are, presumably, at least two distinct ways to detect mutants in the 616 universe.

        Presumably in the new Ultimate Universe, only mutants carry the X-gene and this is because they were exposed to a virus.

    • Melanie Koleini

      In this universe, mutants are the result of an experiment that went wrong. Some infectious agent escaped the lab and infected people like a virus, truing them into mutants.

      As an undergraduate, I worked in a molecular genetics lab. Among other things, I created mutant fruit flies. So, while I haven’t ever tried to mutate a human’s DNA, I have some idea how it could be done. Here is an extremely oversimplified explanation:

      Step 1: Insert the coding for the ‘X gene’ into a retrovirus.
      Step 2: Infect the human with ‘retrovirus X’
      Step 3: Inside human cells, the retrovirus hijacks the cell’s resources to make DNA that codes for the retrovirus. This will also result in the X gene being put into the cell.

      If all the mutants that the authorities care about are the indirect result of the initial experiment, then identifying them should be possible with genetic testing. They just have to look for the X gene. There is one caveat. Anyone born a mutant (their parent was infected with the retrovirus) would probably have the X gene in every cell of their body. But, people who become mutants due to infection would likely be chimeras. Some of their cells would have the X gene but other cells would be free of it.

      • James said: “Oh I agree that the biology is tenuous at best, but this is after all a blog about law, not science. Our usual approach is to take the facts as given and apply real-world law (although we will sometimes note if the facts are glaringly inaccurate or implausible).”

        But my point is about the law, not just the science. The point is that the science used to justify discriminatory laws is usually bogus and based on discriminatory assumptions. For that matter, lawmakers in general have a pretty shoddy understanding of science even when they have no deliberate malicious intent. So even granting that the “actual” biology of the Marvel Ultimate Universe is different from ours, that doesn’t rule out the possibility that the claims being made about the definition of mutants are wrong even by in-universe standards. Just because the government says there’s a clear way to distinguish a mutant from a non-mutant, that doesn’t mean the assertion should be taken at face value.

        So what I’m saying is that, within the universe of the story, there may be legitimate legal and scientific grounds for challenging the government’s definition of mutants, particularly when that definition is dictating who has civil rights and who’s being denied them. So it’s premature to assume that the science being used by the government is actually true in-universe. There may be an upcoming issue or storyline revealing that it’s based on junk science or arbitrary definitions. All we can validly say at this point is that the government claims its definitions are accurate.

  7. I’m curious if the apprehend or execute statute could be applied as quarantine precaution if the mutations are defined as a biological hazard (from the aforementioned government experimentation)?

  8. Could “apprehend or execute” be descended from the Defense bill that just passed at the end of 2011? It allows terror suspects (including citizens captured inside the U.S.) to be detained more or less indefinitely. (Or at least it does, until it gets a court challenge…I think.)

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