X-Men Days of Future Past highlighted a disturbing idea: the US Government deploying Drones (Sentinels) to kill US citizens solely on their racial status (Homo Superior, opposed to Homo Sapiens). There would be no crime, no arrest based on probable cause, no right to counsel, or even a trial. Simply killed for their racial status.
Would that be Constitutional?
No, for multiple reasons.
As a preliminary matter, a Court would find a “mutant” is a “person” and a US Citizen under the law. Determining that a Homo Superior is a human being is not as controversial as claiming Orca Whales have their 13th Amendment rights violated at Sea World (an argument that lost in Tilikum v. Sea World Parks & Entm’t, Inc., 842 F. Supp. 2d 1259, 1262-1264 (S.D. Cal. 2012).).
A Homo Superior is born like Homo Sapiens, often from other Homo Sapiens. Whether you believe life begins at conception or viability, there is no question that human beings are conceived and born of other humans. Moreover, Homo Sapiens and Homo Superiors can have children together. Human beings cannot cross-bred with other animals (Thank God).
The Constitution would not tolerate human rights being striped of those born of other human beings. Moreover, the very idea someone’s child is “not human” because they are Homo Superior has the moral weight of determining humanity by eye color.
There are many historical examples of countries enacting raced-based legislation, imposing nightmarish laws in the past. In the United States, one only needed to have 1/32 African heritage to qualify as a “slave.” Courts even took the view that there was a “presumption of law…that a person of African descent is a slave, but that the presumption may be repelled by any evidence tending to show he is free.” Lee v. Tapscott, 2 Va. 276, 282 (Va. 1796). Further evidencing horrific legal abominations, Nazi Germany required someone to have 1/16 Jewish heritage to be a “Jew” for Hitler’s genocidal war crimes.
Those are two examples from the eighteenth through twentieth centuries etched into my memory from college. The horror of state licensed inhumanity should never be forgotten.
There are far more good laws than bad. The Due Process Clause of the 5th Amendment states that “[N]or shall any person . . . be deprived of life, liberty, or property, without due process of law . . . ” The 14th Amendment to the United States Constitution further states:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
A Court would be hard pressed to say a “mutant” is not a person under the law without resurrecting the ghosts of Dred Scott and Korematsu. A Judge who would uphold the use of Sentinels would simultaneously channel Chief Justice Taney in saying mutants were not “people” and Korematsu,except instead of interning mutants because of their racial status, to kill them without a trial, regardless whether any crime had been committed. Any such law would be convicting citizens for the crime of being a Homo Superior with an extra-judicial death sentence.
There is no way Congress could authorize the use of Sentinels without triggering “Strict Scrutiny,” because it is a race-based law that calls for the execution of US citizens. While the Government could argue there is a compelling government interest in national defense, there is no way they could argue systematically killing citizens without a trial is in the government’s interest. Secondly, there is no way any such law would be narrowly tailored, because the Sentinels would systematically kill any mutant. (See, Richmond v. J. A. Croson Co., 488 U.S. 469, 476 (U.S. 1989), for the strict scrutiny test). There would be multiple less restrictive means to carrying out the compelling government interest of national defense without mass murder.
The Constitution further requires the right to a trial and counsel. People in the United States cannot be randomly arrested for no reason, let alone roadside executions by a Drone. There is simply no way the use of Sentinels would be Constitutional because of the extreme denial of Due Process or Equal Protection for Homo Superior citizens.