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.

20 responses to “X-Men: Days of Future Past

  1. IMO it would be interesting to highlight how sentinels are pretty much just giant anthropomorphic drones.

    • I thought the Sentinels were genuinely autonomous. Drones are Unmanned Aerial Vehicles (UAVs) which means that the pilot is somewhere many miles away, not that they’re able to operate on their own. We do have some robots that can do that now, but for obvious reasons* we’re cautious about using them.

      *Obvious as in “bad line of programming might cause it to think that a fan on a portable toilet is a helicopter rotor and open fire” (that actually happened) not obvious as in “robot rebellion all of us think of because the plot’s been done a million times already”.

      • They are autonomous within the limits their programming–the second generation of Silver Age Sentinels was programmed to prioritize protecting human life over all other actions, and couldn’t violate that. Days of Future Past specifically refers IIRC to the Sentinels being given a dangerously open-ended program.
        Perhaps the legal explanation is that the president rationalized the Sentinels as some sort of drone program, and then things got out of hand.

  2. Melanie Koleini

    I haven’t read the story but am I right to assume that the President wasn’t impeached because most of Congress was in favor of defying the Supreme Court too?

    • Steve Rushing

      I don’t recall it being explicitly covered, but I would imagine that it may have something to do with the fact that the president just sent out an army of rampaging killbots despite the law saying he wasn’t allowed; impeachment proceedings are a poor shield against giant fists and eye-lasers.

  3. Alvaro Freitas

    I don’t know anything about American law, but when I read this statement: “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.” I immediately thought about the internment camps of japanese-americans during WW2.
    How did that come into effect? Anything like that could be used as an excuse for the President, int the story?

    • The justification for internment of Americans of Japanese ancestry was, well, the war. The rule of law is different in time of war*. The justification of supression of mutants is that they are actually a different species from humans, and therefore not covered by the laws that apply to people. That makes the closer analogue of Supreme Court infamy not Korematsu, but the Dred Scot decision that black people didn’t have any rights under the federal constitution.

      *A war that actually threatens the homeland and disrupts the operation of government and industry. For example, Congress may suspend habeus if the operation of the courts is disrupted.

  4. What about Andrew Jackson and the Cherokee? He basically told the Supreme Court to go to hell, and then did what he wanted.

    • Ryan Davidson

      No, he didn’t. You’re probably referring to Worcester v. Georgia, but the main point of the holding is that it is the federal government, not the states, that regulates relations with Indian tribes. Jackson may not have liked the decision, but no one seems to have directly flouted it.

  5. Can Congress declare war against an organization?

    • Congress can declare war on nouns. An organization, such as the BOEM, could either be criminalized or declared to be something like the Taliban.

  6. Secondly, does the decision to use the Sentinels necessarily mean that the president defies the Supreme Court? Can’t he argue that there’s an attack by mutants on the US and he as commander in chief has decided to use the Sentinels to defend the country and that Congress recently passed a law is incidental?

    • It’s been a long time since I’ve read this arc, but I think the Sentinels were ordered to enforce the MCA. Deliberately enforcing a law found unconstitutional would be pretty much flouting a Supreme Court order.

      On the other hand, if they were given a more “Robocop-like” mandate to enforce Constitutional laws, that would be fine but it wouldn’t specifically target mutants. If they were given a mandate to enforce Constitutional laws but to focus overwhelmingly on crimes committed by mutants, then they would probably run into profiling and other due process issues and it would likely be found unconstitutional eventually, but that would at least avoid directly flouting that particular ruling and would require later rulings from the Supereme Court.

      • Great — departmentalism with Sentinels as the Fourth Branch entitled to interpret and enforce the Constitution in their own right. (I believe Federalist X talks about how Sentinels are not tyrannous because they have no WILL).

  7. I haven’t read this in a long time, but people keep throwing around this word, war. Isn’t the MCA, just an act? It doesn’t actually call for war does it?

    • Yes, the MCA was an act for controlling/registering/interning mutants–we didn’t get details–not waging war. After it was struck down, the president activated the Sentinels.
      As this was partly in response to the assassination of Sen. Kelly. Could the president get away with claiming a national security need to stop the mutant terrorists (while interpreting that term very loosely?).
      The story states that the Sentinels were reactivated in response to the Supreme Court decision, so my impression is that this was a backup plan and not in the original plans for the MCA.

  8. Has there been a version where having mutant powers was declared a sickness, and they tried to enforce a mandatory quarantine due to the potential risks those with the “condition” allegedly pose to the general population?

    • Quarantine is only meaningful for communicable diseases, which possession of the X gene, like all genetic disorders, is not.

  9. As I recall, the big thing was that the government was so zealous about mutants that they made the critical mistake of giving the Sentinels way too broad paramaters, so, as the future Kitty puts it, they decided the best way to do it was to take over the country. It’s more about the whole “danger of giving machines power” that the legalities of stuff but shows how you gotta be careful with loopholes.

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