Author: Donald F. Walter, Jr

I. A Brief History of Mixed Martial Arts

In 648 B.C.E., the Greeks introduced the sport of pankration into the Olympic Games. The word pankration is a combination of two Greek words, pan, meaning “all,” and kratos, meaning “powers.” This is an accurate depiction of the sport itself, as it was a potent mixture of Hellenic boxing and wrestling. The sport only truly had two rules: no biting and no eye gouging, though even these techniques were allowed by the Spartans. The bouts could end only when one competitor was knocked unconscious, or submitted to his opponent by raising his hand. Often times, these matches would last for hours, and sometimes ended with the death of one, or even both competitors. The sport became the most popular event in the Olympic Games, and across the Hellenic world.

The matches took place in an arena, or “ring” which was a square approximately 12 to 14 feet across, which the Greeks hoped would encourage close-quarter combat. The matches also featured a referee armed with a rod or switch he used to enforce the rules, which were often broken by opponents that were overmatched. Common techniques included punches, joint locks, choke holds, elbow and knee strikes, and kicks. Kicks to the legs, groin and stomach were quite commonly used. Standing strikes such as these were common, though the overwhelming majority of pankration bouts were settled on the ground, where submission holds and strikes were both accepted practices. Pankratiasts were renowned for their grappling skills, and would employ a variety of grappling techniques, such as takedowns, chokes and joint locks, often to great effect. Strangulation was the most common cause of death in pankration matches.

Ancient Greek pankratiasts became heroes, and the subject of numerous myths and legends. These include the legends of Arrichion, Dioxxipus, Polydamos and even Hercules was believed to be a pankratiast. Alexander the Great sought out pankratiasts as soldiers because of their legendary skills at unarmed combat. When he invaded India in 326 B.C.E., he had a great number of pankratiasts serving with him. This is believed to be the beginning of Asian martial arts, as most Asian martial arts trace their history to India at around this time. Pankration is the first recorded form of what would later come to be known as mixed martial arts, and is the closest any society has come to allowing a truly no-holds-barred unarmed combat sport.

Following the decline of pankration in Greece, which coincided with the rise of the Roman Empire, mixed martial arts fell by the wayside in favor of other combat sports. Sports such as wrestling and boxing became the dominant forms of combat sport in the West, while traditional martial arts swelled in popularity in Asia. This remained the case for centuries until 1925 in Rio de Janeiro, Brazil, when the sport of mixed martial arts experienced a revival from a peculiar source.

In order to fully understand the reemergence of mixed martial arts, it is necessary to take a brief look at the history of the Gracie family of Brazil. In 1801, George Gracie immigrated to Brazil from Scotland, and settled in the Para province of northeastern Brazil. His family grew and flourished, and in the early 1900s, a Japanese man named Mitsuyo Maeda immigrated to the same area. The Japanese government had plans to establish a colony in the area, and Maeda was a representative of the Japanese government. He quickly became close friends with Gastão Gracie, a political figure in the area, and grandson of George Gracie. Gastão used his power and influence to assist Maeda and his agenda of establishing a Japanese colony.

In addition to Maeda’s political prowess and skills, he was also famous in Japan for another reason: Maeda had been a renowned champion of the Japanese martial art of judo. Maeda, or Count Koma, as he was known in Japan, offered to teach Gastão’s son the art of Judo. Maeda trained Gustão’s son, Carlos, in judo from the time Carlos was 15 until he was 21, when Maeda returned to Japan. With Maeda gone, Carlos began to teach his brothers, Helio, Jorge, Osvaldo and Gastão, Jr. the art as Maeda taught it to him. The Gracie brothers were not bound by the tradition that Japanese practitioners of the art so rigidly upheld, rather the brothers began to adapt the art to suit themselves, and to make it more practical. It was in 1925 that Carlos took his brother Helio, who was 11 years younger than Carlos, to Rio de Janeiro, where they opened a jiu-jitsu academy.

As Carlos and brother Helio continued to advance and perfect their art in their new academy, Carlos concocted a brilliant marketing scheme to draw attention to the fledgling academy. He issued what is now famously known as the “Gracie Challenge.” As he explained, “I had to do something to shock the people.” He began the “Gracie Challenge” by taking out an advertisement in several Rio newspapers. The advertisement, which included a picture of the slight Carlos Gracie, information on the academy, and stated “If you want a broken arm, or rib, contact Carlos Gracie at this number.” This effectively began the revival of professional mixed martial arts in the Western world, as Carlos, and later his younger brother Helio, followed by the sons of both men, would take on all comers in vale-tudo matches. These matches closely resembled the pankration matches of Ancient Greece, and were participated in by representatives of area karate schools, professional boxers, capoeira champions, and various others that sought to prove that they were better than the Gracies.

As word of these matches spread through Rio de Janeiro, the public craved these matches. As a result, these matches began to be held in Brazil’s large soccer stadiums, and attracted record crowds. The first of these professional fights was between Brazilian Lightweight Boxing Champion, Antonio Portugal and Carlos’ younger, smaller, and much frailer brother Helio. Helio won the match in less than 30 seconds, effectively elevating himself to the status of Brazilian hero. At the time, Brazil had no international sports heroes, and Helio filled that void for the Brazilians.

As word of these matches spread to Japan, the great martial arts champions of Japan sought to participate in this new form of competition against the Gracies, who the Japanese thought were defiling their traditional arts. Japanese champions flocked to Rio de Janeiro to do battle with Helio Gracie, who was always out weighed by his opponents, often by more than 100 pounds. He defeated many great Japanese fighters, and in a trip to the United States, Helio defeated the World Freestyle Wrestling Champion, American super heavyweight Fred Ebert. One-hundred-thirty-five pound Helio continued to defend the Gracie name and their martial art, often against opponents weighing as much as 300 pounds, from 1935 until 1951, fighting over 1000 fights, until Carlos’ son, Carlson, and later Helio’s sons Rolls, Rickson and Rorion took over the roll of family champion in upholding the “Gracie Challenge.”

The new combat sport of vale-tudo fighting became immensely popular, quickly rising to become the second most popular sport, in terms of ticket sales, in Brazil behind soccer. This is a status that the sport still enjoys today. Leagues and organizations were soon formed and events began to be held regularly all over Brazil. The fights featured practitioners of Brazilian jiu-jitsu, muay Thai kickboxing, luta livre wrestling, boxing and various other styles. As these events, and as a result, Brazilian jiu-jitsu, grew in popularity in Brazil, the Gracies branched out to the United States.

In the early 1980s, Helio’s oldest son Rorion, came to the United States to teach Brazilian, or Gracie jiu-jitsu as he preferred to call it, in California. Like his father and uncle before him, he issued the infamous “Gracie Challenge” in his new home, but added a new twist. Rorion offered $100,000 to anyone who could defeat him, or one of his brothers, in a vale-tudo match. These matches again brought Brazilian jiu-jitsu much popularity. As Rorion realized the potential this style of fighting offered to spread his family’s art, he sought to create an organization that would promote this sort of fighting in the United States.

After years of hard work, and promoting his family’s art and his idea for an American vale-tudo league, Rorion Gracie met Art Davie, a salesmen who had first become interested in this style of fighting during a trip he took to Thailand where he witnessed an underground mixed martial arts event. Davie utilized his connections in the television industry to set up a meeting for himself and Rorion Gracie with Bob Meyrowitz, who was president of Semaphore Entertainment Group (SEG), a corporation that specialized in putting on live pay-per-view sporting events. Together, the three men established the “Ultimate Fighting Championship,” which held its first event in 1993. The first “Ultimate Fighting Championship” (or UFC as it is more commonly known) event sold 86,000 pay-per-view buys, and by the third event, the buy rate was up to 300,000 pay-per-view buys per show. This secured a place for the sport of mixed martial arts in the United States, but this place was not a reputable one.

The Ultimate Fighting Championship had introduced a form of fighting which it dubbed “no-holds-barred,” or NHB fighting. The first six Ultimate Fighting Championships had very few rules. In fact, there were no weight classes, no time limits or rounds, and no mandatory safety equipment. The only rules were that fighters could not eye gouge, bite, or fish hook, and fights could only end with a referee’s stoppage, knock out, or submission, which could be signified verbally, or by a “tap out,” where the fighter must tap the mat, or his opponent three times with his hand or foot to signify that he submits. The event took place in an octagonal cage, dubbed “The Octagon.”

The format of the event was that of a one night tournament, where competitors would fight several bouts in one night, in a single elimination style tournament until a champion was named. The lack of weight classes became an obvious problem from the outset, when 415 pound Hawaiian sumo wrestler was allowed to fight 216 pound Dutch kick boxer Gerard Gordeau. This scene was later repeated in the third UFC event, when 6-foot-8inch tall, 600 pound sumo wrestler from New Jersey, Emmanuel Yarborough, was allowed to fight 5-foot-11-inch tall, 200 pound karate fighter from Illinois, Keith Hackney.

Another problem that quickly became obvious was the lack of time limits, and judges. By UFC IV, most of the competitors had caught on to Royce Gracie’s success, and had begun to learn grappling techniques. As a result, the fights became longer and longer. It reached a point where the fights were running over the allotted pay-per-view time slot, and the UFC was losing fans, as they viewed the long periods of ground fighting as boring. SEG realized that it had to do something, so in 1995, at UFC V in Charlotte, North Carolina, the UFC instituted a 30 minute time limit, but did not have judges. Thus, when the much anticipated Royce Gracie-Ken Shamrock rematch ran over the 30 minute time limit, it was ruled a draw. The fans were outraged. This resulted in the use of judges beginning with UFC VI to decide the outcome of fights that outlasted the time limit.

As the UFC gained popularity, it became a pertinent political topic, as Arizona Senator John McCain launched a campaign against the UFC. As a result, in 1997, pay-per-view carriers dropped the Ultimate Fighting Championship events from their line-ups. This was partially SEG’s fault, as they had marketed the UFC as a blood sport, by drawing attention to the negatives that surrounded the event. SEG’s marketing of the event boasted that it was a “no rules,” or “no-holds-barred” fighting event, where anything could happen, even death. This was a successful marketing scheme in the beginning, as it drew attention to the sport from curiosity seekers, but it later backfired politically. As the political uproar began, and Sen. McCain became an outspoken champion of the abolition of the sport, states began to outlaw mixed martial arts competition. This forced the UFC to move its events from state to state, until the pay-per-view providers dropped the events from their services. In the words of UFC ring announcer, Bruce Buffer, this caused the UFC to “basically go underground.”

The Ultimate Fighting Championship remained a fringe oddity, without pay-per-view coverage, and banned from all but a handful of states for several years, until the franchise was purchased by Zuffa, LLC. Zuffa, a Las Vegas based media and casino management company owned by Lorenzo and Frank Fertitta, took over the UFC franchise with the intention of returning it to its former popularity, and eventually gaining the sport mainstream acceptance. The Fertittas and Zuffa president Dana White sought to turn the UFC into a “good, clean sport with actual rules,” which would allow the sport to eventually become sanctioned. This would be a huge step for the UFC, as “sanctioning provides a legitimization for the sport,” according to Bruce Buffer.

Dana White and the Fertitta’s work came to fruition in 2001, when the UFC returned to pay-per-view, with record buy rates, and record ticket sales at their live events. The new and improved UFC returned with a stricter set of rules, which included rounds, time limits, five weight classes, a list of 31 fouls, and 8 possible ways to win. Also, the UFC fighters were drastically different from those that entered the Octagon in 1993. Current UFC fighters are among the best conditioned athletes in the world. Often, fighters train for more than six hours a day, which is comparable to, and often more than the amount of time boxers and other professional athletes spend in training on a daily basis. Also, fighters work on strength and conditioning, in addition to their striking and grappling skills.

The difficulty of mixed martial arts training can best be summed up in the words of two of the sport’s stars, as former UFC heavyweight champion Tim Sylvia says “Mixed martial arts training is the hardest thing I have ever done in my life,” and UFC light-heavyweight contender Chuck Liddell stated that mixed martial arts training is “more rigorous training than almost any other sport.” The new breed are well-rounded fighters, versed in numerous styles of combat, and equally at home on the mat, as standing and trading punches and kicks. Among the new breed of fighters are former Olympic medallists, NCAA champions, Pan American games medallists, and even a long list of former NFL football players, and boxing champions. Many of these fighters are college graduates, and several are graduate school students.

Today, the UFC’s pay-per-view buy rates are rising quickly, as are ticket sales at their live gates. Fighters now spend five to six years fighting in smaller events, building their resumes to compete in the big show. Fans continue to flock to the sport looking for the excitement and intensity of the purest form of one-on-one competition on the planet today. Mixed martial arts is also currently the fastest growing sport in the United States, as mixed martial arts events and training centers spring up all over the country, and the money the sport is making continues to grow at a nearly exponential rate.

II. An Overview of the Conflict between the States’ Police Power and Personal Liberties

Since the ratification of the United States Constitution in 1787, it has been understood that the federal nature of the government set forth by the Constitution effectively created a system of dual sovereignty. This implies that both the national, and state governments have powers that are peculiarly their own, and that can not be exercised by the other sphere of government. Since the powers granted to the federal government are enumerated within the Constitution itself, the federal nature of the American form of government grants the remaining powers to the state governments . Among the powers that are held by the state governments is the so called “police power.” This power grants the states the right to police their citizenry in the interest of their health, safety, welfare and morality.

The origin of the concept of the police power, as it is exercised by the state governments of the United States, can be found in the writings of John Locke. John Locke, whose political philosophy heavily influenced the Founders of the United States of America, believed that the reason why mankind entered into societies from its original state of nature was to ensure that the individual people could enjoy “their properties in peace and safety .” In order to escape the state of nature, the people entered into a “social contract,” which formed societies, which in turn required governments to be fully functioning political entities that would best be able to protect the property of their citizenries while preserving peace and safety. As part of this preservation of property in a peaceful and safe environment, the governments of these societies had to be able to act in the interest of self-preservation. To Locke, self-preservation included defending the people’s health, welfare, safety and morality . In the United States, the defense of these interests would later come to be called the police powers. Morality was a particularly key component for democratic societies, in Locke’s view. In democratic societies, the people are sovereign, and therefore, they must be up to the task of governing themselves. It is Locke’s view that in order for rule to be legitimate, or “good,” it must be virtuous . This is evidenced by Locke’s statement that:

“…the golden age (though before vain ambition, and amor sceleratus habendi, evil concupiscence had corrupted men's minds into a mistake of true power and honour) had more virtue, and consequently better governors, as well as less vicious subjects… ”

So it would therefore stand to reason that since the people are sovereign in democratic societies, in order to assure that the society is governed as well as it can be, the people must remain virtuous. This justifies the state policing its citizenry in the interest of keeping the morality and the virtuous nature of the society intact.

A history of this need to defend the morality and the safety of the people can be found in American jurisprudence. These values, particularly the standard set of moral values that can be found in American culture have come to be known as “the American way of life.” The so-called “American way of life” can be loosely defined as the morals and values that are commonly accepted to be part of the overall culture of America. These things include monogamous marriages, children’s rights, and certain standards of decency and obscenity. The first major case that provides for the defense of the “American way of life” in the history of American jurisprudence is the case of Reynolds v. United States (1878). Reynolds was a Mormon man who claimed that he had a religious duty to commit polygamy, even though this was outlawed by a federal statute. The Supreme Court ruled against Mr. Reynolds, and in the opinion of the Court, Chief Justice Waite stated,

“Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. Suppose one believed that human sacrifices were a necessary part of religious worship, would it be seriously contended that the civil government under which he lived could not interfere to prevent a sacrifice? Or if a wife religiously believed it was her duty to burn herself upon the funeral pile of her dead husband, would it be beyond the power of the civil government to prevent her carrying her belief into practice? So here, as a law of the organization of society under the exclusive dominion of the United States, it is provided that plural marriages shall not be allowed. Can a man excuse his practices to the contrary because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances.”

This is the first such defense of the “American way of life,” or defense of any such moral standard. The tradition of defending the American moral standard in jurisprudence continued in the case of Gitlow v. New York (1925). Benjamin Gitlow, the appellant in this case, and a member of an American Communist organization, was indicted and convicted of “criminal anarchy.” This case came to light as part of the “Red Scare,” which was an intense fear of Communism spreading to the United States during the 1920s and 1930s. Gitlow held that the statute ran contrary to the due process clause of the 14th Amendment. In the opinion of the Court, Justice Stanford held that though the First Amendment protects the freedom of speech and press as fundamental rights and liberties, these rights are not absolute and can be abridged in the interest of preserving the government or cultural identity of the United States .

The cases of Gitlow v. New York (1925), and Reynolds v. United States (1878) both serve to preserve the “American way of life,” or at least conditions that provide for a healthy democracy in the United States, but they do not stand alone in American history. Another example of the states using their police powers can be found in the case of state required vaccines. As reaffirmed in the 1905 case of Jacobson v. United States, the individual state governments can require that students be fully vaccinated prior to enrolling in public schools, as vaccinations are viewed as necessary to ensure the health and safety of its citizenry . The issue of the prohibition of child pornography, as presented in the case of New York v. Ferber (1982) is another example of a state using its police powers to promote the morality of the citizenry, and preserving the “American way of life.” In the Court’s opinion, Justice White stated that “It is evident that a state’s interest in ‘safeguarding the physical and psychological well being of a minor’ is ‘compelling.’” The Supreme Court case of Federal Communications Commission v. Pacifica Foundation (1978), Justice Stevens authored the opinion, in which he set out “time, manner, and place” regulations, which sought to limit the accessibility to patently obscene content, and to prevent people from being accidentally exposed to such material in the interest of protecting America’s moral fiber.

Even as the pendulum of American jurisprudence began to swing toward allowing more personal liberties, often at the expense of the states’ police powers, the rights of the states to police the citizenry in the interest of the citizenry’s health, safety, welfare and morality are not forgotten. The police powers of the states’ have actually found a champion in recent years in the form of Justice Antonin Scalia. Justice Scalia’s dissenting opinions in the cases of Romer v. Evans (1996), and Lawrence v. Texas (2003), and his concurring opinions in Barnes v. Glen Theatre, Inc. (1991), and Cruzan v. Director of the Missouri Department of Health (1990) serve to provide valid defenses of the police powers. In Romer, a case concerning discrimination against homosexual persons in Colorado, Justice Scalia states clearly that the states have a right to defend traditional moral values. In his dissent in Romer, Scalia states:

“The constitutional amendment before us here is not the manifestation of “a bare [desire] to harm” homosexuals, but is rather a modest attempt by seemingly tolerant Coloradoans to preserve traditional sexual mores against the efforts of a politically powerful minority to revise those mores through use of the laws.”

The case of Lawrence v. Texas (2003) concerned the constitutionality of a Texas statute that made homosexual sodomy a criminal offense. Justice Scalia’s dissent vigorously defended the Texas statute. As part of his opinion, he stated that “the Texas statute undeniably seeks to further the belief of its citizens that certain forms of sexual behavior are ‘immoral and unacceptable’- the same interest furthered by criminal laws against fornication, bigamy, adultery, adult incest, bestiality, and obscenity.” This statement clearly shows that the right of the states to act to preserve a certain moral standard in the interest of self-preservation is still alive and well in the minds of some judicial officials, but these two cases do not stand alone as dissents by a justice on the fringe. Justice Scalia offered a similar argument in Barnes v. Glen Theater, Inc. (1991), in which the Court ruled that nude “go-go” dancers in an Indiana adult bookstore were violating an Indiana law that stated that their display was indecent, and a misdemeanor. In his concurrence, Justice Scalia states that “Our society prohibits, and all human societies have prohibited, certain activities not because they harm others but because they are considered, in the traditional phrase, ‘contra bonos mores,’ i.e., immoral.” In Cruzan v. Director of Missouri Department of Health (1990), a case concerning the so-called “right to die,” and the discontinuation of life-sustaining procedures, Justice Scalia continued his strong trend of defending the police powers. He offered a concurring opinion which stated that the Court has no business deciding cases involving the “right to die,” as it is a moral issue that the people should decide through their legislatures, not something that should be left up to the Court.

Though there seems to be a plethora of convincing arguments and jurisprudence that supports the states’ police powers, there is also a great deal of weight granted to the other side of this debate. The tradition of the protection of personal rights and liberties can, ironically, also be traced back to the philosophy of John Locke. Locke believed that the principal purpose for the creation of societies, and consequently governments, was to preserve the property of its citizens. In his Second Treatise on Government, Locke states that

“the great and chief end, therefore, of men uniting into commonwealths, and putting themselves under government, is the preservation of their property; to which in the state of Nature there are many things wanting.”

This provides that the public exists solely to serve the private. It was Locke’s belief that the best form of government is the one that protects the rights and properties of its citizens as much as possible, all while infringing upon these things as little as possible. Since it is widely held that Locke was the most influential philosopher to the Founders of the United States of America, his ideals carried over to the United States Constitution. This is evidenced in the strong value that is placed on personal rights and liberties in American culture. Many Americans are quick to point out that America is “a free country,” or are equally as swift in the invocation of their First Amendment rights when confronted with someone trying to limit their actions or speech.

American jurisprudence lends itself to this love of personal liberties as well. This can be most easily seen in the post-1960s era of Supreme Court jurisprudence, with the most notable of these cases being Roe v. Wade (1973). This case challenging Texas’ abortion laws that made it a crime to “procure an abortion” is considered a landmark case not only in the issue of abortion, but in the area of personal liberties in general. In the Court’s opinion, as delivered by Justice Blackmun, the Court recognizes that American citizens are entitled to a right of personal privacy under the First, Fourth, Fifth, Ninth and 14th Amendments, as previously affirmed in the case of Griswold v. Connecticut (1965) . This case also establishes a key limitation on the personal liberties of the citizenry. In Justice Blackmun’s opinion, he states that:

“It is reasonable and appropriate for a State to decide that at some point in time another interest, that of health of the mother or that of potential human life, becomes significantly involved.”

This limit of harm to another citizens, or to one’s self would seem to indicate that though personal liberties carry a great deal of weight and significance, they are still subordinate to the police powers, which provide for the health, safety and morality of the citizenry. This, though, would change over time.

Another significant case in the history of personal liberties jurisprudence in the United States is that of Bowers v. Hardwick (1986). This case concerned an adult male who had been charged with violating Georgia’s sodomy law by committing a sexual act with another adult male in his bedroom. The Court reversed the lower court’s decision that the law was in violation of the respondent’s fundamental rights to privacy and intimate association. Justice White delivered the Court’s opinion in this case. In the majority opinion, Justice White held that no right exists under the Constitution which grants homosexuals the right to engage in sodomy, even though it is consensual and conducted in private. He claimed that victimless crimes do not escape punishment, as consensual sodomy would represent a victimless crime, as both parties were consenting adults. White made a further claim that other activities, such as adultery and incest are conducted in privacy, between consenting adults, but they are still illegal. This is because the law is based on “notions of morality,” according to White. This decision seemed to confirm that individual liberties were completely subordinate to state police powers when the action harmed the public safety, welfare or morality. This would later be reversed by the case of Lawrence v. Texas in 2003. The Lawrence case directly overturned the Bowers decision. In the Court’s opinion in Lawrence, Justice Kennedy made the point that “freedom extends beyond spatial bounds,” and that “liberty presumes an autonomy of self that includes freedom of thought, belief, expression and certain intimate conduct.” Justice Kennedy’s opinion makes it clear that the people of the United States should be free to choose and pursue their preferred way of life. This decision also made it clear that mere appeals to morality were not enough to restrict a person’s liberties, and that the only clear outer boundary to personal liberties would be the harming of a non-consenting party. This was of particular importance, as homosexuality is widely held to be immoral, and is a controversial topic among many Americans, particularly those of strongly conservative religious convictions.

Though Lawrence is a landmark case, it is not the first case to state that mere moral appeals are not enough to limit personal liberties. The first case to hold this position is the case of Stanley v. Georgia (1969). In Stanley, the Supreme Court reversed a lower court conviction for knowing “possession of obscene material.” Justice Marshall delivered the Court’s opinion, which stated that the First Amendment “prohibits making the private possession of obscene material a crime.” Justice Marshall went on to state that the mere fact that the materials were considered ‘obscene’ was not enough of a justification to invade the personal rights of citizens that possess them. In this decision, Marshall makes the bold claim that the state is not interested in what is morally right (a concept that would later be expounded in Lawrence) by stating that:

“Yet in the face of these traditional notions of individual liberty, Georgia asserts the right to protect the individual’s mind from the effects of obscenity. We are not certain that this argument amounts to anything more than the assertion that the State has the right to control the moral content of a person’s thoughts. To some, this may be a noble purpose, but it is wholly inconsistent with the philosophy of the First Amendment.”

This was a bold statement for the time, but it set the precedent for later decisions, such as Lawrence, and Romer v. Evans (1996). Though Romer was previously mentioned for Justice Scalia’s defense of the police powers in his dissenting opinion, Romer is also significant in that it expanded personal liberties by declaring that a Colorado state constitutional amendment was discriminatory against homosexuals. This decision disregards the fact that the amendment is fair, as homosexuality is widely considered immoral. Justice Kennedy, in the Court’s opinion, states that:

“If the constitutional conception of ‘equal protection of the laws’ means anything, it must at the very least mean that a [bare] desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.”

Justice Kennedy’s defense of the personal liberties of homosexuals clearly neglects the issue of morality, other than to say that homosexuals are an “unpopular group” politically.

He was only afforded the opportunity to neglect the moral issue that Justice Scalia so readily introduces in his dissent in the same case because of the controversial tradition of jurisprudence that was established in Stanley v. Georgia.

When analyzed separately, the tradition of jurisprudence that results in the protection of the police powers of the states, and the tradition of jurisprudence that defends and expands the personal liberties of the citizens would seem to come from entirely different judicial systems, but the two must be reconciled. It is apparent that in the eyes of the Supreme Court, the issue of morality has become a non-issue, with the only exceptions being Justice Scalia’s dissents in Romer and Lawrence, and his concurrences in Barnes and Cruzan, and the Court’s “time, place and manner” restrictions placed on obscene materials in 1978’s FCC v. Pacifica Foundation. With the exception of Justices Scalia and Thomas, who joined Scalia in his opinions in the aforementioned cases, the present Court seems to concur that the four legs of the police powers have been reduced to three by eliminating the concern for morality, and that the three remaining legs have been diminished from what they once were. The present Court, and as a result recent trends in American jurisprudence, tend to side with personal liberties over police powers in almost every conceivable instance. As a result, personal liberties have expanded greatly in the past two decades, at the expense of the police powers, but it must be determined whether these issues should be left up to the courts to decide.

In Justice Scalia’s aforementioned dissent in the case of Cruzan v. Director, Missouri Department of Health, Justice Scalia stated that these controversial issues of morality and safety should be decided by the legislatures. This idea is the ideal solution to the controversial issues that involve concerns that fall under the four legs of the police powers. This would best coincide with the American system of democratic republicanism. The United States of America was founded on the principles of a democratic republicanism, which means that elected officials would represent the people that elected them in the passing of legislation and enacting of laws. This allows for the greatest amount of accountability in the law making process, since elected officials have to be reelected at the end of their terms, and if an elected official acts in a manner that is displeasing to his or her constituency, they will lose that election. Also, these elected officials directly represent the American people. Neither of these two things is true of the judiciary. Supreme Court Justices are not elected officials, so they do not directly represent the people of the United States, and they also serve a life term, which means that they can not be held accountable, except through impeachment, which is a difficult process to undertake. Also, the Supreme Court was not intended to make law. Rather, the Supreme Court was intended only to review laws and aid in the interpretation of the Constitution and laws of the United States. Therefore, it should not be up to the Supreme Court to determine what is in the best interest of the people of the individual states of the United States and their safety, morality and welfare. The issues that fall under the police powers of the individual states should be determined and decided upon by the elected officials of the individual state legislatures, and not left up to nine un-elected officials that are in no way directly accountable to the people whom these laws would affect.

III. A Defense of Mixed Martial Arts

Since the sport of mixed martial arts was first introduced to the United States in 1993, it has been the subject of much heated political debate. The opponents of mixed martial arts have leveled numerous arguments against the sport, and under the leadership of Arizona Senator John McCain, they even succeeded in forcing the sport from national pay-per-view carriers, and convinced several states to ban the sport. The four year forced hiatus that the sport experienced from 1997 until 2001 was a direct result of the political onslaught headed by Senator John McCain. Though on the surface, this event may look to be a terrible set of circumstances for the sport of mixed martial arts, but in reality this hiatus allowed the sport to almost totally reinvent itself. Though the rules of the UFC had been changed prior to the sale of the franchise to Zuffa by SEG, the sport still carried much of the negative stigma that was associated with the unruly nature of the early UFCs until the sport was dropped from pay-per-view carriers for several years. When the sport reemerged in 2001, many of the sport’s greatest opponents had all but forgotten about it, which allowed it to reemerge under the political radar. This also allowed the sport to gain a new fan base and to expand its support.

A major factor in the reemergence of the sport, and the return of the sport to pay-per-view was the utilization of a new set of rules. The Unified Rules of Mixed Martial Arts Combat, as drafted in New Jersey, and later adopted in Nevada on July 23, 2001 were a welcome change to the sport. The new rules featured five weight classes, rounds, time limits, a list of over 31 fouls, and eight possible ways for the fight to end . This differed greatly from the rules present at the sport’s genesis in the United States, which allowed for no weight classes, no time limits, no rounds, two methods of victory, and only three fouls. In drafting the Unified Rules of Mixed Martial Arts Combat, the commission that worked on the project had the goal of making the sport safer, and to take the sport from a spectacle into the realm of respectable sporting events.

According to John McCarthy, head referee for the UFC since UFC II, the commission looked to other combative sports for rules that the sport of mixed martial arts could incorporate. Among these sports were the accepted Olympic rules for boxing, judo and wrestling, as well as the rules for professional kickboxing, and Brazilian jiu-jitsu tournament rules. The primary obstacle that the commission had to overcome was that no other sport in existence permitted striking while the participants are on the ground, but this is an essential feature in mixed martial arts. Nonetheless, the commission included striking on the ground in the rules. The Unified Rules of Mixed Martial Arts Combat have become the standard rules of not only the UFC, but of most major mixed martial arts promotions in the United States, and have been adopted by many states, including New Jersey, Nevada, Florida, California and Louisiana.

In order to fully understand why it was necessary for the sport to adopt the Unified Rules of Mixed Martial Arts combat, it is necessary to analyze the exact arguments that have been leveled at the sport. The sport has been called “barbaric,” and labeled as “human cockfighting.” Beginning with Calvin McCard’s opposition to the holding of UFC IIX in San Juan, Puerto Rico, politicians began to take notice of the negative aspects of the sport. Most notable among these was Arizona Senator John McCain. McCain, an avid and lifelong boxing enthusiast, was horrified when he was shown a tape of an early UFC. He sparked a letter writing campaign to prevent UFC IIX, but the event went on despite his opposition. McCain’s next target was Colorado, the intended site of UFC IX, which also went on despite strong opposition, but with new rules. Following UFC IX, John McCain targeted the cable pay-per-view providers to encourage them to drop the UFC. He encouraged Neil Henry, a personal friend of Senator McCain’s, and the owner of TCI, the pay-per-view provider that was hosting the UFC’s events to drop the UFC from his service. Senator McCain also sat on the FCC commission, which had much say over Mr. Henry’s business. Mr. Henry voiced many of the opinions that Senator McCain and other opponents of the UFC had been voicing up until that point. Mr. Henry and Senator McCain believed the sport was “too brutal,” and that “to hit a man when he was down was un-American.” Other opponents of the sport believed that the sport raised serious moral issues, in that it encouraged two participants to enter a cage, or ring and seriously injure or maim one another.

The claims against the sport that were based on the health and safety of its participants seem to be widely based on misunderstanding. First, a sort of cultural determinism seems to have influenced the opponents of the sport of mixed martial arts. Unlike Japan and Brazil where mixed martial arts have a long history of popular acceptance, American society’s only experience with a mainstream combat sport is with that of boxing. Under the Marques of Queensbury rules, boxing only permits punches thrown to the head and body, unlike mixed martial arts which permits punches and kicks to all areas of the body with the exception of the groin, neck and back of the head, as well as knees and elbow strikes, takedowns, throws, and submissions.

Also, in boxing, the participants wear large padded gloves, whereas in mixed martial arts, the participants wear only minimally padded gloves. On the surface, this would make the sport of mixed martial arts seem significantly more dangerous, but in reality, it is actually safer. The heavily padded gloves used in boxing are actually employed to protect the boxers’ hands, not their opponents’ face and body. This allows the boxer to throw more punches to the head and body of his opponent than mixed martial artists, as mixed martial arts gloves do not protect the wearer’s hands as much as boxing gloves. In addition to the lower level of padding used in mixed martial arts gloves, the greater volume of techniques that can be employed in mixed martial arts actually make the sport safer as well. In the words of professional mixed martial artist John Rallo,

“After all the goal in boxing is to punch you opponent in the head until he is unconscious. This is not the goal in our sport. There are many other ways to win. Since 1900 their have been over 1000 documented deaths in boxing. There has been 1 in MMA in 70 years. That was in Russia at an unsanctioned event. Ironically the death was caused by strikes to the head.”

Mr. Rallo’s claim about the sheer volume of deaths in the history of the sport boxing is substantiated by numerous reports, most notable of these is the Manuel Vasquez Boxing Fatality Collection. The Vasquez Collection is a documentation of all reported deaths in the sport of boxing since 1900. The list compiled by Vasquez, and continually updated since his death, now contains 1,157 names. Ironically, one such death in the sport of boxing, the 1995 death of Jimmy Garcia, was witnessed by Senator John McCain, as he sat ringside. Strangely, Senator McCain remains a fan of boxing, a sport with a marred safety record, and over 1,000 recorded deaths in a little over 100 years, but he continues to be an opponent of the sport of mixed martial arts, which has not had a serious injury in the recorded history of the sport. In comparison to many sports that are widely and popularly accepted in American culture, including football, cheerleading, hockey, boxing and basketball, mixed martial arts is relatively safe. The numerous ways in which a fight can end in a mixed martial arts event, the great deal of safety precautions taken by promoters, and the attentiveness of mixed martial arts referees, who can end the fight at any time they see fit are all reasons why there have been no serious injuries in the recorded history of sanctioned mixed martial arts events. The effect that the various ways in which a mixed martial arts fight can end have on the safety of the sport is illustrated by John Rallo in his statement that:

“…it is honorable to tap in our sport. If you quit in a boxing match you may not fight again. Look at Roberto Duran after the "no mas" match with Ray Leonard. He was looked down upon and never regained his edge after that fight. A KO is not the only means of victory. The average boxer takes several hundred blows to the head in a winning performance. In MMA I have been in fights and not even taken one punch. If you take down your opponent and finish the fight on the ground you greatly reduce the chances of being KO'ed or even hit at all. Obviously there are injuries. This is a contact sport. But the injuries are no more severe then those suffered by collegiate wrestlers or football players.”

Even in the case of mixed martial arts events that are held on Indian Reservations, or in casinos where sanctioning bodies are not present, and the events are not monitored, such as Rob Braniff’s Freestyle Fighting Championship, it is still commonplace that the methods of business, safety measures employed and the ethical measures taken far surpass the rules and regulations set out by the sanctioning bodies of outlying areas.

Another major argument against the sport of mixed martial arts is that it is immoral, and goes against the morals that are considered part of the “American way of life.” Opponents of the sport question the sport’s morality, as it requires two opponents to enter a ring or cage with the intention of hurting or injuring one another. Another moral argument against the sport is that striking a downed opponent is “un-American.” Proponents of the sport strongly disagree with these allegations. Proponents of the sport strongly disagree with these allegations. One such proponent, John McCarthy emphasizes that the fighters in mixed martial arts do not fight to inflict pain on one another, rather they fight for the sake of competition. He states that all of the fighters that he has talked to about this issue say that when they fight, it is all about the sport, and that it is more an issue of dominance, like a game of chess, rather than one of inflicting pain on another human being. In this vein, Mr. McCarthy says that the ethics of mixed martial arts are the same as those of other widely accepted sports, such as football or hockey, where inflicting pain on the competition is merely a part of the sport, not the ends of competing. Professional mixed martial artist John Rallo reinforces this. Mr. Rallo says that when he fights:

“I feel respect for my opponents. They trained just as hard to beat me as I did to beat them. You can't underestimate anyone in this sport. One mistake and the fight is over. My emotional state is probably nervous…As for getting into the ring to harm my opponent this is not true. I am getting in the ring to win the competition. Unlike boxing, I can use submissions to defeat my opponent. Since competitors can honorably tap out usually nothing more is injured then pride. If you know them well it does complicate things a bit. But it is a sport. It is not personal. After the match is over you get up shake each other’s hand and continue to be friends.”

As for the morals of the sport of mixed martial arts being un-American, this statement too is refutable. Though the United States of America was founded on the principle of religious freedom, it is quite easily recognized that the founding of the United States of America and its government had a heavy Christian influence. This manifests itself in many ways, even to this day. It can be seen in everything from American currency, which bears the statement “In God We Trust,” to the Pledge of Allegiance, which proclaims the United States of America to be “One nation under God,” and these are just two of many examples of the imprint that Judeo-Christian beliefs and morals have on the United States. Since the American way of life and the morals that comprise it have their roots in the Judeo-Christian belief system, it would be difficult for the opponents of mixed martial arts to level a moral argument against the sport, since the first book of the Holy Bible (which happens to be part of the religious scripture for not only Christian religions, but Judaism, and Islam) features a tale of a mixed martial arts style competition between Jacob and God. Genesis 32 tells the story of how Jacob grappled with God at Peniel for the duration of a night. When the night was over, Jacob had dislocated his hip, and for his refusal to submit, or “tap out” in mixed martial arts terminology, God blessed Jacob.

Currently, mixed martial arts is the fastest growing sport in the United States of America. Its fans and participants can be found all over the country, and in all walks of life. They represent every race, creed and class of people in the United States. They are teachers, police officers, attorneys, truck drivers, accountants, laborers, ministers, soldiers, doctors, students, and family members. They are as much American as the fans and athletes involved in any other sport that is popularly and culturally accepted by the people of the United States of America. They are not savages, barbarians or criminals, nor are they a collection of social deviants and miscreants as people like John McCain would have the voting public believe. They are simply people who enjoy a sport that is misunderstood and as a result, feared and hated.

As the fan base of the sport continues to expand and grow, the sport will receive more attention as it edges closer to mainstream American culture. Currently, UFC events are covered in USA Today, and the Fox Sports Network, which has aired several fights from UFC events on its network, and ESPN airs similar competitions as part of its regular line up. It is only a matter of time before the sport of mixed martial arts is a mainstream sport which will rival boxing, but in order for the sport to gain mainstream acceptance, the public must be educated on the sport. As long as the terrible misconceptions that are associated with the sport continue to permeate society, misguided opposition to the sport will exist based on these misconceptions and irrational ideas. Only with education will the society ever fully accept the sport of mixed martial arts. Until the public can be educated, the sport will remain a fringe oddity to some members of the population, and will continue to be considered in the same vein as “extreme” sports, though it could achieve much greater things. The potential for the success of the sport exists, as evidenced by the widespread acceptance and monetary gains the sport has gained in both Japan and Brazil. It is only a matter of time before the sport of mixed martial arts sweeps the United States.

Bibliography (arranged in order of use)

1. Arvanitis, Jim. “Pankration.” Greece.org. <http://www.greece.org/olympics/research/wrestling/>.
2. Peligro, Kid. The Gracie Way. Montpelier: Invisible Cities, 2003.
3. “Ultimate Fighting Championship: From Spectacle to Sport.” Fightnews.com. <http://www.ufcfightnews.com/ufc/history.html>.
4. “Fight Finder.” Sherdog.com. <http://www.sherdog.com/fightfinder/>. Bernstein, Al.
5. “UFC: Spectacle to Sport.” Pay-per-view. 18 Oct. 2003.
6. “Rules.“ UFC.tv. <http://www.UFC.tv>.
7. The Constitution of the United States of America.
8. Locke, John. The Second Treatise on Government.
9. Reynolds v. United States. 98 US 145. 1878.
10. Gitlow v. New York. 268 US 652. 1925.
11. Hodge, Jr., James G. “School Vaccinations Requirements: Legal and Social Perspectives.” National Conference of State Legislatures State Legislative Report. <http://www.ncsl.org/programs/health/slr2714.htm>.
12. New York v. Ferber. 458 US 747. 1982.
13. Federal Communications Commission v. Pacifica Foundation. 438 US 726. 1978.
14. Romer v. Evans. 517 US 620. 1996.
15. Lawrence v. Texas. 537 US 1231. 2003.
16. Barnes v. Glen Theater, Inc.. 501 US 560. 1991.
17. Cruzan v. Director, Missouri Department of Health. 497 US 261. 1990.
18. Roe v. Wade. 410 US 113. 1973.
19. Bowers v. Hardwick. 478 US 186. 1986.
20. Stanley v. Georgia. 394 US 557. 1969.
21. McCarthy, John. Personal Interview. 10 Nov. 2003.
22. Plotz, David, and Halkin, Hillel. “Fight Clubbed.” BJJ.org. <http://bjj.org/editorials/19991117-fightclubbed/>.
23. Rallo, John. Personal Interview. 12 Nov. 2003.
24. Svinth, Joseph R. “Death Under the Spotlight: The Manuel Velazquez Boxing Fatality Collection.” Journal of Combative Sport. Feb. 2003. <http://ejmas.com/jcs/jcsart_svinth_a_0700.htm>.
25. Silverman, Amy. “John McCain Breaks up a Fight.” The Phoenix New Times. 12 Feb. 1998. <http://www.phoenixnewtimes.com/issues/1998-02-12/feature2.html>.
26. Braniff, Rob. Personal Interview. 11 Nov. 2003.
27. The Book of Genesis, 32. The Holy Bible.

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