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The X-Men, Marvel Comics' popular mutant heroes sworn to protect a world that hates and fears them, were declared "nonhuman creatures" in a Jan. 3 ruling by Judge Judith Barzilay of the U.S. Court of International Trade.

This allowed Marvel Enterprises Inc. to label action figures based on the X-Men and other Marvel characters as toys - figures representing animals or "creatures" - rather than dolls - toys representing humans - and thereby win a lower duty rate on figures imported from China in the mid-1990s.At the time, the tariff code placed higher duties on dolls than toys.

In the words of the Comic Book Guy, "Worst ruling ever."

X-Men fans were outraged that the courts would define their heroes as anything less than human. They look different and their DNA might deviate from the norm, but they have the same hopes, fears and dreams that "normal" human beings do. Why should the law view them any differently? More importantly, why should anyone outside the cloistered world of comic book fandom care? The answer is simple: the X-Men, for all their spandex excess, represent the future of the human race.

Biotechnology promises a world where parents can engineer their children to be smarter and stronger than the norm. It promises a world where splicing animal DNA with that of humans is a commonplace procedure. It even promises a world where the blind will see and the lame will walk thanks to mechanical cybernetic implants.

The citizens of this brave new world will no longer be, in the strictest biological sense, homo sapiens. But will they still be human? Probably not. At least not in the eyes of the law.

America has been attempting to define - and deny - personhood since the days of the founding fathers. The Constitution enshrined into law the idea that black slaves were only worth three-fifths as much as free white men. Roe v. Wade declared that unborn children are little more than extensions of their mothers and therefore undeserving of the rights and protections given to those the state recognized as full-fledged human beings. Judge Barzilay's ruling, while not applicable to cases involving human beings, is a good indicator of how the legal system will view the genetically deviant citizens of the future.

In her 32-page decision, Judge Barzilay wrote that "a 'mutant' is an individual … with freak or grossly abnormal anatomy, abilities, etc." It may have once been a part of the human species, but its mutation makes it "something other than human."

The judge makes a compelling case. Barring the existence of some ineffable element like a soul, what is a man but the sum of his DNA? Man has an awareness of self, but so do great apes. Man has a more powerful mind than any found in nature, but IBM predicts that computer brains will be the equal of human ones in terms of sheer processing power within two years. Intelligence is clearly no longer an adequate method of determining personhood; therefore, the only legitimate definition of humanity is a narrow one based entirely on specific genetic characteristics.

The biotech-created mutants of the not-too-distant future obviously wouldn't make the cut. Like the X-Men, their tailor-made genes would not only set them apart from the teeming masses of humanity but above them as well. Enhanced physical traits would give them an unbeatable edge in sports competition while improved mental faculties would ensure their dominance in business and the sciences.

For the first time in its history, mankind will no longer be the dominant species on this planet. The last time this occurred was nearly 30,000 years ago when the dim-witted Neanderthals found themselves competing with our more highly-evolved ancestors, the Cro-Magnons. Guess who won and guess who only exists today in fossil form.

Fortunately for us mere mortals, we no longer exist in a state of nature. We now have the rule of law and its conveniently elastic definition of personhood. All human jurists have to do is declare mutants non-persons and let the legislators do the rest.

Congress could pass laws barring mutants from running for public office. They could enact legislation that would prevent mutants from owning businesses or heading major corporations. They could even curtail mutant breeding in order to keep them a minority.

Inevitably the mutants would begin to chafe under this genetic apartheid. They would strike back against their human oppressors - perhaps violently. Acts of mutant terrorism would lead to reprisals by the humans, which would in turn lead to even greater violence on the part of the mutants. All-out war would ensue with victory coming only through genocide: one species wiping the other from the face of the earth. And have no illusions about which species would emerge triumphant.

The future does indeed look grim. All across the world scientists are busy breeding our replacements - whether we want them to or not. The science fiction of the X-Men will be the science fact of tomorrow. The only real question left to us is whether we will embrace them or attempt to destroy them.

If we continue to define humanity in a solely quantitative way, conflict is inevitable. A few microscopic strands of altered DNA will forever separate man from mutant. There will never be common ground unless we accept that there is something transcendent about the human condition. The law must recognize that both natural humans and lab-grown mutants alike are "endowed by their Creator with certain unalienable Rights." Humanity can no longer be defined as a function of the mind or the body but of the heart and the soul.

For if we label the X-Men nonhuman creatures today, what then will we label our children tomorrow?

Joshua Elder

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