The killing of George Floyd and Rayshard Brooks due to excessive force by policemen raises two crucial constitutional points in the context of liberty as enshrined in the Fifth Amendment of the American Constitution.
The preamble of the United States Constitution, adopted in 1787, begins with the words, ‘We the People’. However, until the 24th Amendment, racial discrimination was not prohibited by the Constitution. The American Constitution originally comprised of seven Articles. The first three Articles contemplate the doctrine of separation of powers, i.e., legislature, judiciary 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 the powers to amend the Constitution. The Constitution has been amended 27 times till now. The most imperative aspect of the American Constitution is the first ten amendments which are collectively called as Bill of Rights, which were established in the year 1791. The framework of the original Constitution does not contain any aspects in relation to rights of citizens. All the Constitutional rights available to 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 promoting one religion over another and also restricts an individual’s religious practice from encroaching on another’s. It guarantees freedom of expression by prohibiting Congress from restricting the press or the rights of individuals to speak freely. It guarantees the right of citizens to assemble peacefully and to petition their government. The Second Amendment relates to right of defence and the Third Amendment lays down certain restrictions to prohibit the government from forcing individuals to provide lodging to soldiers.
The Fourth, Fifth, Sixth, Seventh and Eighth Amendments relate to the 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 is akin to Article 21 of the Constitution of India.
The manner in which George Floyd died under the knee of a Minneapolis Police officer and the criminal force exhibited by the police to scuttle the peaceful demonstrations raise two constitutional issues: (1) The violation of the Fifth & Fourteenth Amendments, and (2) The violation of the First Amendment. The State has violated the rights guaranteed by the Constitution under the Fifth and Fourteenth amendments. The police exercising criminal force against peaceful demonstrations per-se is in violation of the First Amendment. However, the constitutional safeguards are not backed by any specific legislation contemplating penal provisions for violating the same.
The US constitution is 233 years 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 only of liberty and justice. The American Constitution started evolving in the context of safeguarding civil rights. The 13th Amendment was made in the year 1865 to abolish slavery. 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’. It took another 99 years for the 24th Amendment and the enacting of the Civil Rights Act, 1964, to eliminate all forms of discrimination.
Racism in the United States has been a key issue right from the drafting of the Constitution in 1787. Race is inextricably woven into the fabric of human rights. A study shows that racial, economic and educational disparities are deeply entrenched in US institutions. There are incidents of black students subjected to daily verbal assault in schools, black families waiting in long lines for polio inoculations while white children receive speedy treatment. A study has shown that the wealth gap has increased substantially over the years, 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 the Montgomery bus boycott in which black passengers refused to utilise the public transit until officials met their demands, which led the Supreme Court to rule that the system of segregated busses was unconstitutional.
Martin Luther King Junior advocated for non-violent protest. He believed that public demonstrations were direct actions to amplify protest. He won the 1964 Nobel 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 but also productive dialogues between activists and government authorities. It was against the background of public protest that the Civil Rights Act 1964 was enacted to expressly ban discrimination based on race, colour, religion, sex or national origin in employment and other areas. This legislation was upheld by the Supreme Court in the case, 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 the victim of an attitude deeply embedded in the system. Brutality exhibited by the police is a common phenomenon in every society. There is need for reformation of the police and also of a comprehensive legislation to prevent such incidents.
The United States has ratified the International Convention on the Elimination of all Forms of Racial Discriminations (ICERD) but it has failed to implement it within its own territory. The US Constitution prohibits racism but this is not backed by comprehensive penal legislation. Unless a specific penal legislation is enacted to penalise acts of racism as an offence, racism cannot be eliminated.
The writer is an Advocate at High Court of Andhra Pradesh and [email protected]