X-Men: Days of Future Past

No, not the upcoming movie, the 1981 X-Men comics storyline in issues # 141-42 (Kindle edition). It’s about an alternate future in which Sentinels are loosed by the federal government to round up mutants. It’s a major component of the X-Men mythos, and it’s been revisited several times in the comics and is apparently at least some inspiration for the next X-Men movie.

There are some spoilers within, so be warned, but honestly: the story is three decades old. It ought to be fair game at this point. Anyway, the story directly involves some legal wrangling, and we’ll take a look at that.

I. Background

The basic plot is that in “the future”–2013, fittingly enough–things have gone badly wrong. In 1980, a group of Evil Mutants (who still have the chutzpah to call themselves “Evil Mutants”) assassinate presidential hopeful Senator Robert Kelly. This leads to a massive increase in anti-mutant sentiment, and the next president proposes something called the Mutant Control Act, which Congress passes and said President signs into law. But the story says that the Supreme Court ruled the MCA to be unconstitutional. Under normal circumstances, that would be the end of the story, but apparently, this President felt sufficiently empowered by his electoral mandate to ignore the Court and turn the Sentinels loose, the judiciary–and Constitution–be damned.

Let’s start by saying that we can’t very well evaluate the constitutionality of a law for which we do not actually have any text. But we have looked at similar laws elsewhere, e.g., the Keene Act and the Superhuman Registration Act. So we can offer an opinion as to the potential legality of these sorts of laws in general, and commentary on the realism of the political situation described in the story.

II. The Mutant Control Act and the Constitution

Again, we’ve evaluated these sorts of laws before, and our conclusion, in general, is that Congress can probably pass some form of such an act, relying on a combination of Constitutional powers, including the commerce power, the draft power, various national security and foreign relations powers, etc. But we’ve usually concluded that these laws would be pushing right up against some of these enumerated powers, so that over-reach is distinctly possible. For instance, we concluded that Congress could probably draft mutants, or just superhuman persons generally, and that Congress can probably set up teams of superhumans around the country, but it probably can’t use the draft power to do it without repealing Posse Comitatus (which is a lot less likely than many things that happen in comic books!). Similarly, Congress can probably impose content-neutral time/place/manner restrictions on costumes, but it isn’t going to be able to ban the use of costumes outright, as that would constitute expressive conduct under the First Amendment.

But the story makes it sound like this is a really extreme version of these laws, and the goal seems to have been things like forcing mutants to wear power-dampening collars and sticking them in internment camps. It’s pretty easy to see why the Court might not go for that. This would almost certainly constitute a violation of Due Process as secured by the Fifth Amendment, and possibly even discrimination of the basis of race in violation of the Fifteenth Amendment. Given the way the MCA is described, this is a plausible outcome.

III. Unleash the Sentinels!

But what about the President ignoring the Supreme Court and turning the Sentinels loose on the country? Well. . . that does seem a little unlikely. Contrary to what you read on the Internet, our constitutional system of government survived the events of September 11 more or less intact. Arguable erosion of civil liberties is not the same thing as the complete suspension of the rule of law, and it’s the latter, not the former, that happens in the story. The President and the Supreme Court have been at odds before, but until now, one or the other has always caved before causing a true constitutional crisis.

So even if a President going completely off the reservation seems a tad far-fetched, the writers are to be credited for understanding that such a move would indeed represent the end of the United States’ period of constitutional government. Indeed, the rest of the world is so terrified by what happens in the US, and so fearful of the possibility of the Sentinels expanding their mission from “protecting” baseline humans in the US to “protecting” baseline humans everywhere, that everyone in the dystopic version of 2013 is pretty much convinced that there’s going to be a massive nuclear exchange in the immediate near future. So maybe a few points off for going that way, but more points added for understanding the consequences of doing so.

But, on the other hand, one might plausibly argue that this is one of the first X-Men storylines that takes the existence of beings like mutants seriously enough to show the political consequences thereof. In comic books, the common response of politicians to the discovery of the widespread existence of mutants looks like proposing bills with arguments related to gun control (which these days is a dicey thing to base any law on). In the real world, it would probably look more like “Holy bleepity bleep! Send in the Marines! The SEALs! The 22d Airborne! The 28th Bomb Wing! Whatever we’ve got, send ’em in!” In other words, a massive overreaction if this sort is depressingly plausible.

IV. Conclusion

If nothing else, Days of Future Past occupies a significant enough place in X-Men history and mythology that it’s basically required reading. It’s a fairly well-crafted yarn, and as an added bonus, the trade paperback includes a few issues prior to the main event, which both give a brief summary of the X-Men’s history from their inception through the end of the Dark Phoenix saga and the departure of Cyclops. Oh, and there’s also an intensely trippy sequence where they go through a version of Dante’s Inferno with Dr. Strange. So yeah. But the legal aspects are handled with enough detail and accuracy to be one of the more creditable efforts in the genre. They went into just enough detail to make the plot work and then got said details right. That’s how you do it, folks.