Volume 22
Issue
2
Date
2024

Military Necessity and Racial Discrimination

by Paul J. Larkin, Charles D. Stimson, and Thomas W. Spoehr

Americans celebrate July 4th with beach outings, baseball, hot dogs, and fireworks. Yet it is the last of those items that most signifies the importance of the day. The nation might have declared its independence via publication of a document signed by various political leaders at Independence Hall in Philadelphia, Pennsylvania, but America truly became independent only by force of arms that were carried and used by Americans willing to place their lives at risk for their families, for their friends, and for the prospect of what Thomas Jefferson’s memorable words called “Life, Liberty, and the pursuit of Happiness.”1 Only because there are Americans still willing to go in harm’s way does our native tongue remain English rather than German, Japanese, Russian, or Chinese, and the liberties declared in the Declaration and guaranteed by the Constitution remain available to all.

One of those liberties, as Martin Luther King so poetically said in 1963, is the right of Americans “not [to] be judged by the color of their skin but by the content of their character.”2 Yet for more than a century, the nation failed to make that dream a reality. Slavery, and its bastard child Jim Crow, kept black Americans from realizing the benefits that the law should provide to all.3 Beginning in 1954, however, the nation started to turn the ship around. In Brown v. Board of Education, the Supreme Court of the United States held that, based solely on their race, black school-age children cannot be denied access to the same free publicelementary education offered to white students.4 The Court then began a march through other features of American law that discriminated against blacks, ultimately holding that all state institutions should be open to people of all races without restriction.5 The Court recently reaffirmed that rule in Students for Fair Admissions v. Harvard College, saying, “The conclusion reached by the Brown Court was thus unmistakably clear: the right to a public education ‘must be made available to all on equal terms.’”6

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1.

Declaration of Independence ¶ 2 (July 4, 1776).

2.

Martin Luther King Jr., Speech at the Lincoln Memorial: I Have a Dream (Aug. 28, 1963).

3.

See, e.g., ERIC FONER, RECONSTRUCTION: AMERICAS UNFINISHED REVOLUTION, 1863-1877 (Updated ed. 2014); KENNETH M. STAMP, THE PECULIAR INSTITUTION (1989); C. VANN WOODWARDTHE STRANGE CAREER OF JIM CROW (2001).

4.

347 U.S. 483, 493 (1954).

5.

See, e.g., Gayle v. Browder, 352 U.S. 903 (1956) (busing); Mayor and City Council of Baltimore v. Dawson, 350 U.S. 877 (1955) (public beaches and bathhouses); Loving v. Virginia, 388 U.S. 1 (1967) (marriage).

6.

600 U.S. 181, 204 (2023) (quoting Brown, 347 U.S. at 493).