The Problem Still Remains.
Let’s take a walk on the lanes of history. We wouldn’t have to go much further. If we take a ride of sixty years, African-Americans still had to sit or walk or be in designated places in buses, restaurants, or even in graveyards. Ten more years earlier African-American children had to go to different schools than their white counterparts. It was only in 1960 when a six years old child named Ruby Bridges had to be escorted by Federal Agents in an all-white school.
Although it was in 1954 when the Supreme Court declared that racial segregation in schools was unconstitutional, six years later, people were still refusing to let a black child walking into a all-white school. Another forty years back would take us in 1920, when women just got the right to vote, almost one and a half centuries after the declaration of independence. It would take another three years to propose the Equal Rights Amendment to ensure equality of the genders and prohibit discrimination on the basis of sex, and another forty-nine years to pass.
Lincoln passed the “Emancipation Proclamation” in 1863, almost ninety years after the forefathers declared, ”All men are created equal”. Even after the 13th and 14th Amendments gave the African-Americans citizenship and the right to vote, in 1896, the Supreme Court declared that racial segregation was constitutional.
When America became independent from British rule in 1776, only two other nations on earth were truly democratic. Yet, America chose the path of democracy and the forefathers created a constitution with checks and balances between the executive, judiciary and legislative branches, so prudent and timeless that even after 244 years, it remains almost as it were.
The participation of people in forming the government, fair election, peaceful transaction of power and a powerful and unbiased judiciary system were ensured by the laws. Bill of Rights was enacted so that basic human rights cannot be violated. Yet, this is the same America where racism and xenophobia are very much in existence even in 2020.
The Problem of Majority
Why century-old hatred against a few targeted classes is still flowing through the veins of some of the Americans in this modern era is debatable. But despite having a perfect democratic system, a constitution and an unbiased judiciary system why it took America centuries to ensure basic human rights? Is there a flaw in the system?
The problem is America’s Democracy.
The very thing that I am pointing out as the problem is actually the reason America is, well… America. The land of liberty and freedom, the land of free speech and the land of opportunity. American Dream originated from American Democracy. It is undoubtedly democracy that made all this possible. So what am I missing here?
The issue lies within the definition of democracy. Democracy is not the representation of all people. It is the representation of the majority. What that means is that in a perfect democratic country, leaders don’t need the support of all people. They just need most of them to win an election. You need to share the views of the majority to represent them as the government. That means if the majority of the people show hatred toward a particular class, they would most likely want the reflection of their ideology in their representatives as well.
As older people consist the majority of voters, and tend to be more conservative (I am not saying conservative means being racist, it is wrongful to judge a group by the characteristics of a minority of them), let’s assume a voter is 65 years old. That means he was born in 1955, a time when racial segregation was partly still constitutional. It is possible that his ideology would be influenced by the people that might be skeptical of black rights. It is probable because racial segregation did not allow blacks to live in the same residential area as the whites and although racial segregation in schools was declared unconstitutional, it was still very much in practice. So it is possible for him to be influenced by a racist society.
This is the problem of America’s democracy. Anything that defies voter sentiment is hard to change.
The Four Layers
There are four layers of protection against any violation of human rights in America. They are:
· The Constitution written by the forefathers and its amendments.
· The federal laws created within the parameter of the constitution by the legislative branch.
· The President’s Executive and Veto power.
· The Judiciary system that can strike down unconstitutional laws.
Let me give you a simplified description of how these layers work with checks and balances.
· The constitution is the ultimate law. It can only be amended by two-thirds votes of both houses. Even the Supreme Court has no jurisdiction upon the Constitution and its amendments. All federal laws must be within the bounds of it.
· The President can veto any bill passed by the congress and sign executive orders which has the force of a federal law. Although Congress can override a veto and executive order by two-thirds votes on both houses.
· The states can make laws of their own but they must comply with the federal laws and the constitution.
· The Supreme Court can abolish any state law, federal law or executive order signed by the president if it is unconstitutional.
The Supreme Principles
As constitution is the supreme basis of law, Let’s see how the constitution provides civil rights.
There is of course the bill of rights. The first ten amendments of the constitution allowing her people freedom of speech and religion, right against unreasonable searches and seizures, right of a fair trial and other basic rights. Seems pretty fair. But there is a catch. Generally, to enjoy all the rights provided by the constitution, you must be a citizen of the United States. Now, let’s see how the constitution defines her citizens.
According to Section 1 of the 14th amendment of the constitution, this is the definition and the privileges of an American citizen:
“All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. ”
This amendment gives African Americans the citizen status and thus providing them with the same privileges of any other American.
Section 2 of the same amendment describes:
“Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, [being twenty-one years of age,] and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.”
It restricts voter rights to only the men. It was changed by the 19th amendment, giving women the right to vote.
Now as it looks like the constitution seems pretty straight forward about the rights of the people and offers equal rights and privileges to all despite their race, sex or religion. And we know that every federal and state law must maintain the constitution. Even the Court is unable to change it. That means if the constitution provides civil rights to people, no other institutions should be able to violate them by any means.
But there are three more layers to talk about.
Let’s check some statistics about the House of Representatives and the Senate of the current Congress.
· Members of the House were 57.6 years and Senators 62.9 years of age on average at the beginning of current Congress
· Most are Protestant Christians.
· Representatives served on average of 8.6years and Senators 10.1 years.
·Only 54 African Americans in House of Representatives and 3 in Senate.
Source: Congressional Research Service
If we pick a random Senator, most probably he is going to be an old white Christian male. If we take the average, he is almost 63 years old and served for 10 years. He doesn’t necessarily need all the voters of his state to win the election. He has to see which age group has the most voter turnout. According to the 2014 Midterm Election, the majority of the voters are in the same age group as he is. 39.4% of the voters are above 60. The age group 45–59 consists another 30.3% of the voters. That means of all voters 63.9% are old and lived in a time of segregation and inequality. That is way above the majority. Only 10% of the voter who came to the poll were between 18–29. This is unusual because although the age group of 60 and above cast almost 40% of the votes, they represent roughly 20% of the population. (Source:Politifact)
The age group most reluctant to change, elect the senator, Congressman or even the President. They are who determine the result of reelection.
There is a very little percentage of representation of African Americans in both houses. Moreover, the voters who were born in a particularly modern time and when saw the change in the concept of equal rights are the ones that don’t go to vote. It is no surprise that society is resistant to modern views.
The Commander in Chief
The President is the most powerful man in the country. Constitution bestows President with such powers that whenever he seems necessary, he can give Executive orders, which are treated as federal laws and can veto any bill passed by the legislation.
The power of Executive Orders had been practiced by the Presidents before to ensure or restrict civil rights, especially in wartime. For instance, Roosevelt issued Executive Order 8802, banning racial or ethnic discrimination on the nation’s defense industry. In Executive Order 9981,Truman issued, “There shall be equality of treatment and opportunity for all persons in the armed forces without regard to race, color, religion, or national origin,” ending the segregation in the military.
But the controversial usage of Executive Order had been in practice. After the Pearl Harbor attack in 1941, Roosevelt signed Executive Order 9066, which resulted in the confinement of Japanese Americans, Italian Americans and German Americans in concentration camps. This was passed in a time when sentiment against the axis forces was maximum and the American descendants of these countries bore the cost of it.
The factors applicable in a Congressional Election are also applicable in the Presidential election. If we take the 2016 election as an example, voters above 45 years are 61.8% of the voters. Only 24.7% of the voters are black, Asian or Hispanic. 15.7% are under the age of thirty. There is really little incentive for the man most capable of change for the minorities to actually act on it.
Some might say that the President and Representatives are supposed to be influenced by the voters. That is true, they surely are indebted to those who elected them, and it is in the definition of democracy to comply with the majority.
Even if the majority shows hostile views against the minority, the government cannot do the same even if they want to. Because all the rights of people are protected by the constitution. But that hadn’t been the case.
Democracy doesn’t mean being biased to the majority, it rather means ensuring the rights and privileges of all people by the ideology of the majority.
The Guardian of the Constitution
Well, here comes another catch. Although the constitution protects civil rights, laws are always subjected to interpretation. We must remember that the Justices also hold distinctive ideologies and as members of the society, they can also be influenced by the beliefs and principles that define it. And similarly, if we look into history, the landmark civil rights case often describes how the society as a majority perceived things. For example, after the 15th amendment (which was ratified in 1869) there had been zero amendments concerning black rights. Yet, within 1896 and 1968, multiple contradictory rulings and reforms regarding racial segregation and discrimination were passed by the Supreme Court, Congress and by the executive orders of the President.
Even if a law remains unchanged for centuries, it can be interpreted by the Supreme Court differently at different times and thus its meaning can vary.
To understand some of the rulings of the Court and reforms by legislative and executive branch we have to know the contexts and history behind them. For instance, in the case of Plessy v. Ferguson, this rule was passed in a time when the southern states were displeased with the 13th to 15th amendments, abolishing slavery and giving blacks the right to vote. The Southern states were already passing “Black Codes” to restrict black rights. The landmark decision held that “racial segregation is constitutional” and cleared the path for Jim Crow laws.
The time between 1954–1968 is called the era of the civil rights movement. The murder of Emmett Till, The bravery of Rosa Parks, Ruby Bridges, the leadership of Malcolm X and Martin Luther King sparked the black rights movement against all the discriminations and segregation. A series of reform laws were passed and Supreme Court declared discriminative laws like segregation in schools, interstate and intrastate transportation facilities and inter-racial marriages unconstitutional. Congress passed the Civil Rights Act of 1965 abolishing all discrimination and the Voting Rights Act of 1965 making it easier for the blacks to vote. All of it came as a cost of country-wide protests, peaceful marches, unreasonable arrests and deaths of the African Americans.
The rights of the homosexuals had always been a heated debate. Most of the opposition against homosexuality came from a religious point of view as the Bible condemns homosexuality. But many argue that “Separation of church and state” is a legal term related to the first amendment which states, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;” So, even if the prejudice against gay people comes from a religious sense, it has no constitutional basis. Some also argue that sexual orientation is a form of civil liberty, which is ensured in the constitution. But the problem is that these interpretations had been made only after the public opinion swing regarding this matter. Let me give you examples.
The ruling of Bowers v. Hardwick came in a time when support for gay marriage and LGBTQ rights was minimal. It validated the constitutionality of a sodomy law of Georgia, criminalizing homosexuality. In that time only 44% of Americans believed gay or lesbian relations between consenting adults should be legal. (Source: Gallup). Even after ten years of this ruling, Defense Against the Marriage Act (DOMA) was passed by Congress in 1996 which stated that marriage is the union of a man and a woman. It is noteworthy that according to Gallop, the support for Gay Marriage was only 27% back then.
Interestingly, ruling on Obergefell v. Hodges came only when the support for gay marriage reached a majority of 60%. The Court ruled DOMA unconstitutional and validated Gay Marriage nationwide.
It is worth mentioning that President Obama had his reservations about gay marriage at his 2008 campaign. They dramatically changed with the public sentiment. Some argue that involving Courts in validating gay marriage influenced the Christian religious institutions to make peace with uncomfortable beliefs.
The problem here is that although the laws remained almost the same, it was interpreted differently at different times. Despite the fact that the Court should always remain unbiased, it cannot always exclude public sentiment when passing judgments.
As the Court has an odd number of seats, at any time, the Court is either liberal or Conservative, rather than having a neutral point of view.
And this is the case because the appointment of a Supreme Court Judge is a political process. The President nominates a Judge (Both of Federal and Supreme Court) mostly when the Judge has common ideological views as the President. Then he/she has to be vetted by the Senate for confirmation. Here, the Judge needs majority. You may argue that a Judge who will have the power to review federal laws should be appointed by a larger margin so that his/her ideology is vetted more efficiently and resonates with a larger number of representatives. But 51 votes from only one party in Senate is enough to appoint a Judge. This indicates, the appointed judges are supposed to lean toward a more radical ideological perspective. The current Court falls on the right side of the ideology spectrum with four Justices being with more liberal views and five with conservative.
You may ask, of the four layers, three of them are at some point of the history had been vulnerable to public sentiment. But why the constitution remains unbiased? Yes, it had some obsolete sections in the past which had been amended. But unlike the federal laws or Court rulings, it didn’t change from good to bad. It appears that the constitution is the most consistent of the four layers.
The answer again lies in the vote of the majority. When a President is elected, he needs the majority of the electoral colleges, when a representative is elected, he needs the majority of the vote, passing federal and state laws need the majority of votes and the Judges who sit in the Court are elected by the President and vetted by the Senate. They need the majority to get appointed, thus it is natural that the sentiment of the majority will be reflected in the people that make or review laws. But any amendment of the constitution doesn’t only need the majority in any houses, it needs two-thirds of the votes of the members of both houses. Then it needs to be approved by three-fourths of the State legislatures. And once an amendment is ratified nor can be overturned by the Court.
Nation More Divided Than Ever
Americans are so proud of their democracy, the Court’s leaning to the public opinion is often appreciated. The same thing applies to the other two branches of the Government. Although the legislative and executive branch must comply with the majority it is also important to protect the constitutional rights despite where the public sentiment swings.
Americans are deeply ideologically polarized. It had been in the past and it is growing every day. In the past, a political or ideological debate occurred only on the topic of national interest. And generally, there had been a common ground of belief between the parties. But recently the overlapping ground is growing thinner. From topics of national security to whether one should wear a mask during this pandemic have been subjected to intense debates between the Republicans and Democrats. A sense of mistrust hangs between them. The path of neutrality is becoming narrower. Any slight leaning to each side is being labeled as conservative or liberal. The practice of sanctimony has engulfed the people.
And what is troubling is that the politicians are reluctant to end this practice. There had been incidents where the President himself supported wrongful views and misinformation just because his fanbase does the same. Endorsing white supremacy, slamming the media or most recently being indifferent to wear a mask in this life and death situation only proves how flawed the democracy really is.