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Mainstream, VOL LVIII No 28, New Delhi, June 27, 2020

Constitutional Breakdown in the US | Chittarvu Raghu

Friday 26 June 2020

by Chittarvu Raghu

Death of George Floyd and Rayshard Brooks due to the excessive force exhibited by the policemen raises two crucial constitutional points in the context of liberty as enshrined in the fifth amendment of the American Constitution.

The preamble of United Nations constitution begins with the words, ‘we the people’. However till the 24th amendment the racial discrimination was not prohibited by the constitution. African – American Indians have long been the targets of racially charged physical violence. Racism manifested in various forms since the drafting of constitution in 1787 till the death of George Floyd and Rayshard Brooks - 2020. The protest and revolt is inextricably linked with the racial violence.

The American Constitution originally comprised of seven Articles. The first three Articles contemplate the doctrine of separation of powers i.e., legislature, congress and the executive. Articles 4, 5 & 6 contemplate the concepts of federalism i.e., the rights and responsibilities of the State Governments vis-vis the federal government. Article 7 describes the process for establishment of the government.

Article 5 of the Constitution contemplates power to amend the Constitution. The Constitution was amended twenty seven times till now. The most imperative aspect of the American Constitution is the first ten amendments which are collectively called as a Bill of Rights which were made in the year 1971. The frame work of the original Constitution which was drafted does not contain any aspects in relation to rights of the citizens. The Constitutional rights available to the citizens were incorporated in the first ten amendments.

The first amendment relates to freedom of religion, speech, press, assembly, and right to petition. It forbids congress from both promoting one religion over others and also restricting individual’s religious practice. It guarantees freedom of expression by prohibiting congress from restricting the press or the rights of the individuals to speak freely and guarantees the right of citizens to assemble peacefully and to petition their government. The second amendment relates to right of defence and third amendment lays down certain restrictions with regard to prohibition of the government to force individuals to provide lodging to the soldiers.

The fourth, fifth, sixth, seventh and eighth amendments relate to liberty of an individual. The fourteenth amendment contemplates that the State shall not deprive any person of life, liberty or property without due process of law. The fourteenth amendment was brought in 1868. The fourteenth amendment of US constitution is akin to Article 21 of the Constitution of India.

The manner in which George Floyd died under the knee of Minneapolis Officer and the criminal force exhibited by the State police to scuttle the peaceful demonstrations, evoked two constitutional issues in the context of the American Constitution (1) the violation of the fifth & fourteenth amendment and (2) the violation of first amendment. In so far as the former is concerned the fifth and fourteenth amendment speak with regard to protection of rights of an individual in relation to liberty and property without following due process of law.

Obviously the State has violated the rights guaranteed by the Constitution under the fifth and fourteenth amendment which has resulted in the death of George Floyd. The State police exercising criminal force against peaceful demonstrations as against the said infringement of Constitutional rights per-se is in violation of the first amendment of the Constitution. But the constitutional safeguards are not backed by any specific legislation contemplating penal provisions for violating the same.

The US constitution is 233years old. The first ten amendments were made in the year 1791 by way of the United States Bill of Rights. None of these amendments prohibit racial discrimination. These amendments speak with regard to the liberty and justice. The American constitution started evolving in the context of safeguarding civil rights by making 13th, 14th, 15th & 24th amendments. The 13th amendment was made in the year 1865 abolishing slavery and the 15th amendment prohibited the federal government in each State from denying a citizen the right to vote based on that citizen’s ‘race, colour or previous condition of servitude’ and took about 99 years for making 24th amendment and enacting the Civil Rights Act, 1964 to eliminate all forms of discrimination.

Racism in United States has been a key issue in the American Democracy right from drafting of the Constitution in 1787 till now. Race inextricably is woven into the fabric of human rights. Infringement of any constitutional right enjoyed by a citizen apparently racial and failure of the State to react constitutes constitutional failure. Instead of resolving the issue by taking appropriate measures to safeguard the constitutional rights guaranteed to a citizen, the State cannot infringe the right of peaceful demonstrations.

A study shows that racial, economic and educational disparities are deeply entrenched in US institutions. The American history shows exclusion of certain groups though the declaration of the independent states that ‘all men are created equal’. There are incidents of black students subjected to daily verbal assault in the schools, black families waiting in long lines for polio inoculations as white children received speedy treatment.

A study also shows that the wealth gap had also increased substantially with the median white family having ten times more wealth than the median black family. A black citizen was arrested for refusing to yield her bus seat to a white passenger in the year 1955 which led to Montgomery bus boycott in which black passengers refused to utilise the public transit until the officials met their demands which led the Supreme Court to rule that the segregated busses is unconstitutional.

Mortin Luther King Junior advocated for non-violent protest. He believed that the demonstrations are the direct actions to amplify the protest. He won 1964 Noble Peace prize for combating racial inequality through non-violent resistance. Between 1955 and 1968 acts of non-violent protests and civil disobedience produced crisis situations and productive dialogues between activists and government authorities. In this background the Civil Rights Act, 1964 was enacted expressly banning discrimination based on race, colour, religion, sex or national origin in employment and other areas. This legislation was upheld by the Supreme Court of US by Heart of Atlanta Motel Inc. Vs. United States.

The history of racist incidents in the US shows that George Floyd is not an anomaly but is deeply embedded in the system. Brutality exhibited by the police is a common phenomena prevailing in every democratic society. There is a need for a reformation vis-vis the police and also a comprehensive legislation to prevent such racist incidents.

United States has ratified the International convention on the elimination of all forms of racial discriminations (ICERD), but it has failed to implement the treaty.

The US constitution prohibits racism, but is not backed by a comprehensive penal legislation. Unless a specific penal legislation is enacted penalising the acts of racism as an offence, it cannot be completely eliminated.

Chittarvu Raghu is an advocate at the High Court’s of A.P. & T.S.

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