When Both Sides Make a Compelling Argument: Bakke v California

 The year was 1977 and a white student named Bakke was applying to medical school in California. He was in his thirties, had excellent test scores, and had prior military service to boost his resume. The program only had 100 seats available but Bakke was confident in his abilities. Unfortunately, confidence was not enough, and Bakke was turned down from multiple grad schools. Being an intelligent fellow, Bakke decided to investigate the reason for his plight and discovered that 16% percent of the 100 seats were reserved for "minorities. " On the surface, this did not bother him, but after discovering that his scores exceeded every applicant accepted due to minority status he became infuriated. Bakke pursued a legal battle until the case of Bakke v California landed in the lap of the Supreme Court. 

Standing before the court, Bakke argued that he was discriminated against due to his race and his age. As a veteran, his twenties were spent serving the military, which is why he did not apply at a younger age. Furthermore, Bakke argued that a hard quota system based on race was unconstitutional under the 14th Amendment. By reserving a set number of seats for black students, whites and other races were not receiving equal protection under the law. Bakke also argued that he never committed the sin of racism so he should not be punished for it, after all, his test scores and background were stronger than the other applicants. The final and strongest argument in Bakke's favor was that the 16% value, or any value, is "arbitrary and capricious." If 16% why not 30%, why not 100%? Bakke made excellent points, but the defendants of the university made a compelling case as well. 

The forefront argument for the defense was that such a program posed a "compelling interest" for not only the university but for the nation. With many black applicants being the first in their families to enter college, the issue was seen as a form of equity. The only way to lift blacks out of poverty would be to first give them access to higher education, even if it was unwarranted at first. The race of applicants was used as a proxy or substitute for poverty by the defense. This was a connection that the court agreed with due to statistics. However, this argument today stands on thinner ice. 

With both sides making strong arguments, the court split the baby and ruled in favor of both sides. Although, Bakke technically won the case because the defense was only able to keep part of their current policies. Specifically, schools were not allowed to institute hard quotas but they were allowed to use race and socio-economic status as one of many factors in the admissions process. This is the current doctrine used by universities today, and as you can imagine, division over the decision continues. At least Bakke got his way, he entered the school and graduated a few years later. He then spent the rest of his career working for the Mayo Clinic. 

The sources for this entire blog post came from an in-class mock trial/ discussion. 

When Law is Crafted by the People: Popular Constitutionalism and Non-Judicial Precedent

This blog post will be slightly different than others I have written because it will paraphrase two judicial concepts outlined in an academic paper written by Dean Smith. I will briefly explain these two concepts in two to three sentences. 

The first of these terms is Popular Constitutionalism, which can be defined as a political theory claiming that national dialogue outside the courts changes the meaning of the Constitution. This philosophy has existed for over twenty years and can be found in legislation that either strengthens or weakens Supreme Court decisions. Conversely, Supreme Court decisions can either uphold or reject legislation resulting from popular constitutionalism. Popular Constitutionalism is sometimes referred to when people say the Constitution is a living document that changes with time. Regardless of whether an individual agrees with this idea, it permeates into legislation. As a result, "legislative selection of judge-made concepts of constitutional law helps minimize the risk of subsequent invalidation on constitutional grounds" (Smith). 

Non-Judicial Precedent is the idea that popular constitutionalism and national dialogue can lead to statutes that precede a Supreme Court decision. Non-Judicial Precedent often results from social movements that make changes within society acceptable. Then, the Court hands down a ruling "to make a point, to appease important constituencies, [or] to encourage other States to follow suit" (Smith). 

Source: The Real Story Behind the Nation's First Sheild Law: Maryland, 1894-1897, published in 2014

Picture of the author:

Marching: How Expressive Speech Changed American History

 The Civil Rights Movement of the 1960s was plagued with controversy because the old guard institutions of segregation were being challenged. Peaceful protests were breaking out across the country, especially in the south, to bring awareness to the movement. Thousands of blacks gathered in Birmingham, Alabama in 1963 to march in the streets and demand civil rights. As expected, the police, led by Bull Conner, attacked the protestors with dogs and water hoses to break up the gathering. Martin Luther King Jr led the march and was arrested for doing so, this inspired the youth of the city to join the protest and keep the movement alive. Despite the arrest of King and the new passion found within the youth of the movement, Congress and the President did not step up to enact legislation. MLK knew he had to change the game and shortly after his release, he started to plan the March on Washington for Jobs and Freedom. 

MLK constantly spoke about the first amendment in his speeches and in many respects, he was a genius in utilizing his rights. The bedrock of the Civil Rights Movement was the first freedom, the freedom of religion. By making the word of God his benchmark and brandishing himself as a servant of God, King was able to amass a spiritual following. I would argue that if a prophet has ever lived in the United States it would be MLK. He is named after a former priest who started the reformation, he cited biblical prophets just as Jesus did, and he died, as predicted, before reaching the promised land like Moses. 

Religion was King's foundation and speech was his weapon. Luther's charisma on the podium was overwhelming and after viewing his speeches in full it is clear that he was born to be a leader. By exercising his right to free speech, Luther was able to amass a following and achieve his mission. 

This brings us to the use of expressive action in the Civil Rights movement. The right to peaceably assemble turned the rhetoric of the movement into something material. Bus boycotts, sit-ins, and marches showed that people are stronger together. To demonstrate their strength, 250,000 people answered Luther's call to assemble in Washington on August 28th, 1963. 

To learn more about the March and MLKJr please read the links below:

https://www.naacp.org/marchonwashington/

https://www.britannica.com/event/March-on-Washington

Amorphous Enemies: The War on Poverty

The 1960s were a tumultuous time in American history. As a nation, we were in the thick of the Vietnam War which was causing our image abroad to be tarnished and our economy at home to wither. The Women's Rights movement was picking up steam and the Civil Rights Movement was shaking mountains. Capitalizing on civil unrest, Lydon B Johnson decided to institute wide-sweeping social programs in an effort to help blacks. In his first State of the Union address of 1964, LBJ launched the War on Poverty to "not only relieve the symptom of poverty, but to cure it and, above all, to prevent it." 

The War on Poverty quickly merged with LBJ's "Great Society" and Congress was off to the races, passing spending bills in tandem with the President. Through collaboration, LBJ and Congress created 40 new programs ranging from loan assistance to food assistance. Most of these programs were birthed in the Economic Opportunity Act but four other laws were passed for the most major provisions to the War on Poverty. These separate laws created the Job Corps, Food Stamps, Medicare, and Medicaid. 

The following graph shows government spending on poverty/ welfare programs in comparison to national poverty rates. A naive individual would assume that as government spending increases, poverty would decrease but the reality is different than this fiction. 

The real results show that increased spending stopped impacting poverty rates in 1970, just 6 years after the War on Poverty began. Since then spending has only increased while poverty has remained relatively constant between 10-15%. Once again, when it comes to government, we see that theory and practice are the same in theory but not in practice. 

However, even the claim that government spending was effective for 6 years can be called into question because poverty was already declining prior to 1964 (as expressed in the graph). With Medicare and Medicaid costing 25% percent of America's yearly spending, the question must be asked: Is there any merit to these programs? Do they really help every person they impact? 

After analyzing the data, I would argue that these programs do not help people but rather make them dependant on the government to suit their needs. I do not believe these programs should be abolished but I do believe their budget should be decreased and the qualifications to receive aid should be tightened. Perhaps a timeline should be placed on assistance and once that period of time is reached you can no longer receive aid. 

To do more reading on LBJ, the War on Poverty, and its impact today please see the links below:

https://www.census.gov/library/stories/2020/09/poverty-rates-for-blacks-and-hispanics-reached-historic-lows-in-2019.html

https://assets.aarp.org/rgcenter/health/fs149_medicare.pdf

https://www.statista.com/topics/1091/medicaid/

https://www.cbpp.org/research/federal-budget/policy-basics-where-do-our-federal-tax-dollars-go

https://www.washingtonpost.com/news/wonk/wp/2014/01/08/everything-you-need-to-know-about-the-war-on-poverty/

Klansville USA

Where do you think the Ku Klux Klan was strongest in the 1960s? Perhaps Mississippi or Alabama, heck maybe even Arkansas. Shockingly, all three of these guesses would be incorrect. The most liberal state in the south, North Carolina, had the largest membership of KKK members from 1966 to 1970! With over 10,000 dues-paying members and thousands of mingling spectators, how did such a cult-like following arise? The answer lies with one man: Bob Jones. 

To understand Bob Jones one must first understand the origins and history of the KKK. The KKK began in Tennesse following the end of the Civil War and was led by some old Confederates. The group, like all things, started small. The founding members saw the group as a close circle of friends who used sick humor to perpetuate racism and segregation in the South. Dawning white robes, these few men would go out at night on horseback to terrorize and kill free blacks in the name of protecting the Whites. The humor of the group became obvious as membership grew. To start, the Klan has a ridiculous set of names that are used to classify rank. Instead of General, Captain, or Sargent the Klan has Wizards, Titans, Hydras, Dragons, and Cyclopses. Furthermore, the Klan had rituals in which they would circle a burning cross and sing chants. At first, this turned people away but history tells us that people are willing to do anything for a sense of belonging.  The First Klan died out but a Second Klan was reborn in the 1920s with such strength that it was able to elect 10 governors. Four million members of the Second Klan marched on Washington to demonstrate their political power. Finally, the Klan went dormant again until Brown v Board of Education. The possibility of integrating schools infuriated Bob Jones and he wanted to elect officials that would ensure that did not happen. Bob also felt a spiritual connection to the Klan because his parents were both members in the 1920s and they marched on Washington. 

Bob was racist in that he did not blacks or Catholics to intermingle with "his" people. HE was okay with them receiving rights and freedoms but he firmly believed in the "separate but equal" ideology. This is why Jones never stood up until Brown was decided and integration became the goal of state governments. Brown traveled all across North Carolina and set up local chapters of the KKK claiming that he had every right to use his freedom of speech. Jones historically claimed that he had the same rights as the NAACP. Wealthy whites did not become members because they did not want to mingle with Bob Jones who they saw as white trash. This only further emboldened Jones who saw the KKK as his way to gain status. Jones accepted that poor whites would not be above rich whites so he settled on surpassing blacks instead. This message resonated with rural communities in North Carolina and Jones quickly started to amass a fortune for himself as North Carolina's Grand Dragon. 

By advocating for peace and using the Klan as a voting block Jones was able to keep the Federal government off his back. Furthermore, Jones and his followers hated communism which was the main focus of the FBI at the time. On record, some FBI agents supported Jones and his rhetoric on communism. Jones was on top for four years but even the sun sets in paradise. Following the death of activists in a neighboring state, LBJ came after the KKK with vigor. Jones was brought before Congress on charges of misusing Klan funds which landed him in prison for one year. After his release, the Klan was all but gone and members felt manipulated out of their money. Thank goodness that leaders tend to be corrupt because if Jones handled Klan funds correctly then the Klan would have lived on for a long time. Bob did get one final win though, in his honor, the Bob Jones University of South Carolina was established making his legacy live on for generations. 

To learn more about Bob Jones, the KKK, or the Red Scare please read the links below:

https://www.britannica.com/topic/McCarthyism

http://mallhistory.org/items/show/175

https://www.pbs.org/wgbh/americanexperience/features/klansville-gallery/

How President Truman Earned His Gold Star

Harry Truman had little political experience before becoming the Vice President to President Franklin Roosevelt, but his charming personality made him an excellent choice. FDR is a president who is well-known for two things, World War Two and The New Deal. Likewise, his successor, President Truman, is known for two things; both equally controversial. 

Before discussing what these events were, the stage must be set and a brief elaboration on American history must be given. The year was 1945 and World War Two was coming to an end. Germany had fallen and the United States was now island-hopping its way to the Japanese homeland. Unfortunately during this crusade, America's 32nd President died of a cerebral hemorrhage leaving the nation without a leader in a time of war. Following protocol, the standing Vice President Harry Truman inherited the most powerful office in the land and became the 33rd President of the United States. 

Truman wanted to respect the legacy of FDR by swiftly ending the war with Japan and by furthering social progress domestically. This first goal was achieved when Truman made the decision to drop the first atomic bomb "Little Boy" on the Japanese city of Hiroshima. On August 6th, 80,000 people died instantly within the blast radius, but Japan refused to surrender. In response, a second atomic bomb was dropped on Nagasaki killing an additional 40,000 people at the moment of impact. This second blast pushed the Japanese to surrender because according to Emperor Hirohito, "The enemy for the first time, used cruel bombs."

This decision by Truman has been widely criticized by citizens and historians alike. However, the second thing Truman is remembered for was a turning point in American race relations. Following World War Two on July 26th of 1948, President Truman passed Executive Order 9981 which desegregated the Armed Forces. This historic move was made to encourage desegregation domestically and to show Blacks that they were equal in the eyes of the government. 

From this point forward, Blacks and Whites would share living quarters and even be deployed together on combat missions. Many generals were opposed to this decision because they believed Blacks did not have the mental fortitude to succeed in combat. This preposterous opinion was quickly disproved and Blacks went on to serve with Whites throughout the Korean and Vietnam Wars. Unlike the atomic bombs, this is a decision modern Americans are proud of. The legacy of Truman is embedded within Executive Order 9981 and his progressive decision will always remain in the history books. 

To learn more about President Truman and his major contributions please consider the following links:

https://www.ourdocuments.gov/doc.php?flash=false&doc=84

https://www.history.com/topics/world-war-ii/atomic-bomb-history

https://www.britannica.com/biography/Harry-S-Truman

When Separate was No Longer Equal: Brown v Board of Education

Following the landmark case of Plessy v Ferguson in 1896, segregation became the norm in the American South. All public amenities ranging from movie theaters to water fountains were separate on the grounds of race, but one man wanted to change that. Oliver Brown, the plaintiff, brought a class-action suit against the Topeka, Kansas Board of Education when his daughter, Linda, was denied access to an all-white public school. This 1954 case overturned Plessy v Ferguson and was the catalyst of integrated public facilities across the United States. The Supreme Court ruled that to be separate was to be inherently unequal and the equal protection clause of the 14th Amendment was redefined. 

As with the previous State v Mann post, I was tasked with impersonating a defense lawyer of the state. My assignment was to make an appeal in favor of segregated schools and I had to argue from a legal perspective. This assignment was more challenging than State v Mann because in that case, I was arguing against slavery, and in this case, I am arguing in favor of segregation. Below you will find the exact transcript of my remarks.

"The issue of separate but equal accommodations within public facilities was established long ago in 1896 with the case of Plessy v Ferguson. This case established the separate but equal doctrine that has dominated our land ever since. My argument before the court today is that we honor Stare Decisis and veer away from Judicial Activism. As established in 1896, public accommodations for different races are equal which makes the matter of integration a moot point. Individual businesses may provide unequal accommodations and we encourage these businesses to be prosecuted with the full force of the law. Currently, all legislation and amendments to our Constitution dictate equal protection under the law for all citizens, as expressed in the 14th Amendment which was ratified in 1868. Separate accommodations are equal because the quality of the services remains the same and in theory, the services should be indistinguishable from each other. Some would argue that this practice is immoral but we are a nation of laws. The precedent of this case was established on moral grounds in a time when the horror of slavery was being purged from our land. If we follow morals rather than law then our government is only as good as the people elected or appointed to fill them. By adhering to law and precedent we have been able to safeguard our nation from mob rule and protect our institutions from tyranny. The case before the court today should respect precedent so our Constitution can be maintained."

For case details and for a full history of the case please read the links below:

https://brownvboard.org/content/brown-case-brown-v-board

https://www.history.com/topics/black-history/brown-v-board-of-education-of-topeka