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Trump vs US Congress vs Judiciary in USA, a fascinating duel

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Narasimhan Vijayaraghavan
The author is practicing advocate in the Madras High Court

‘Knees on Necks’ is not the United States of America, the founders would have dreamed of. But, were they completely blameless? Did they not leave behind the vestiges of slavery, as an institution in the very Constitution of 1787 vintage they framed. Despite the high moral ground they took in the 1776 Declaration of Independence? It is a fascinating history to delve into, at least on the margins and periphery, if not the deep depths that such a scholarly study may mandate.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.
— Declaration of Independence, 1776

Those were the lofty ideals in words that rang loud, as Founding Father Thomas Jefferson captured it. The irony should not however be lost that on the very day, date, (time and) year Thomas Jefferson wrote those immortal words, there were half a million slaves, who accounted for 20% of the colonies’ populace itself.

That was not the height of irony. It was that Thomas Jefferson himself owned 100 slaves at that time. George Washington, Benjamin Franklin, James Madison and John Jay, among many others, too owned slaves in exercise of their ‘inalienable individual property rights’.

US of A is not now in the throes of the Viral Pandemic with a record number of deaths of over One Lakh alone, but nationwide protests in the wake of the death of George Floyd, Minneapolis, which are shaking its democratic foundations.

It was not until 1st Jan, 1863, that Abraham Lincoln introduced the Emancipation Proclamation, which spelt the beginning of the end of slavery as a ‘permissive institution’. And later, the Thirteenth Amendment (Amendment XIII) to the United States Constitution abolished slavery and involuntary servitude, except as punishment for a crime. In Congress, it was passed by the Senate on April 8, 1864, and by the House on January 31, 1865. The amendment was ratified by the required number of states on December 6, 1865. On December 18, 1865, Secretary of State William H. Seward proclaimed its adoption. It was the first of the three Reconstruction Amendments adopted following the American Civil War.

Racism is nothing new in the US of A. It is as old as the hills, harking back to the days of slavery. US has seen too many black lives lost and the Pandemic appears to have exacerbated the wounds.

Trump’s provocative tweets have not helped, as public intellectuals and opinion leaders have put the administration on the mat. Calls for the military to intervene, contrary to Insurrection Act have invited robust responses from retired Defence Secretaries and military Generals. The government is under siege and polls suggest that majority Americans, despite the polarised state, are disgusted with the Trumpian responses. The US Congress is also slated to meet next week, to rustle up legislations to ‘pin the police down to legal ways’.

It would therefore appear that Legislature is seeking to corner the Trump led Executive. Of the three branches that constitute a democratic polity, can Judiciary be far behind? Judiciary, by construct, is a political institution. But it is not ‘political’ as in the case of what ‘politicians’ practice. It always refrains and is reticent on such occasions. Not this time.

Now, contextually, read this June 4th,2020 Joint Statement issued by The Nine on the Supreme Court of the State of Washington (not the US Supreme Court)..(An interesting mix of– two males, one a white, one African American female, one Asian immigrant female, and two of Hispanic origins).

Racism is nothing new in the US of A. It is as old as the hills, harking back to the days of slavery. US has seen too many black lives lost and the Pandemic appears to have exacerbated the wounds.

The Statement is pointed and poignant. It is seemingly ‘controversial’ as rarely, if ever, Judiciary deep dives into such divisive issues as racism, and publicly at that. Anonymous quotes may be on. But a formal statement of this kind. That is new.

Donald Trump’s ‘base’ has steadfast stood by him. The polarisation may help his re election bid too, though the poll numbers, on date, favour the presumptive Democratic Presidential candidate, Joe Biden, Vice President to President Barack Obama, for two terms.

But, the killer news is- Judiciary wading into the George Floyd imbroglio, a racist issue of humongous proportions. Unheard of, in the annals of over 240 years of US Judiciary, they say. Or the Judiciary in any democratic polity. A fascinating Executive vs Legislature vs Judiciary battle, is on the cards. A constitutional tussle of iconic proportions and a mouth watering one, at the academic level for us, for it does not concern any of our institutions, except as a rare precedent.

Just imagine this. The Full Complement of Judges of a State High Court in India issuing such a statement on our caste divide? That would be something! The present statement dt. 4th June,2020 from the Supreme Court, State of Washington, is of that genre. Truth to tell, the idealistic yet ironical ideologies vis a vis the practice of the Founders of US Constitution, cannot be ignored or eschewed from reference. Can they be?

(Narasimhan Vijayaraghavan – author is practising advocate in the Madras High Court)

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Narasimhan Vijayaraghavan
The author is practicing advocate in the Madras High Court

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