The United States has a
complicated government structure consisting of a national Constitution and
laws, state constitutions and laws, as well as county and city laws. The
United States Declaration of Independence states, “…. that endowed by their Creator
with certain unalienable Rights that among these are Life, Liberty and the
pursuit of Happiness.” These unalienable
rights can be interpreted as economic, social and cultural rights. In looking at the different jurisdictions within
the United States, some laws back up this statement and address economic,
social and cultural rights ESCR. The United States Supreme Court is called upon
to interpret these laws from these different jurisdictions within the context
of the national Constitution. Unfortunately,
that interpretation of the US Constitution changes over time and at present is
one of the central discourses today within the cultural wars of the United
States.
Founding members of the United
States Constitution believed that by setting up a division of powers in the
government protected individual rights by preventing majorities to form and
capture power to be used against minorities.
The Constitution alone contains few individual rights but later the Bill
of Rights provided individual rights focusing on political and civil
rights. At the time of writing and
ratification of the US Constitution there were no human rights as we know today. Looking at the Bill of Rights several of the
Amendments relate to the articles in the UDHR that pertain to political and
civil rights and none that relate to articles 22 – 27 of the UDHR which pertain
to (ESCR). Other Amendments of the
Constitution over time have strengthened human rights protection still focusing
on political and civil rights and lacking in ESCR.
The US Constitution and how it
relates to the UDHR can be linked to the United States participation in forming
early United Nations human rights standards.
Eleanor Roosevelt as the Chair of the Committee that drafted the UDHR continued
President Roosevelt’s legacy by promoting economic human rights as laid out in
the President’s Economic Bill of Rights. Unfortunately, the United States support
of economic rights policies did not transfer over into the Cold War era. The
United States reluctance to accept ESCR during the Cold War came from the idea
that these rights were communist doctrine and the United States being a capitalist
free market system based policies on a government that protected political and
civil rights but saw ESCR as entitlements.
The United
States reluctance to ratify UN treaties has to do with the obligations that
goes along with ratifying the treaties because some of the policies in the
United States during the early years and today such as discriminating against
African Americans, and not passing a Women’s Equal Rights Amendment to the
Constitution would be in violation of UN treaties which would make the United
States vulnerable in International Law.
Changing the Constitution is not an easy process, three fourths of the
50 states must ratify an amendment before it becomes law. In over 200 years
there have only been 27 Constitutional Amendments.
The United
States has a “National Constitution” and a United States Supreme Court; all 50
States have their own individual constitution, and their State Supreme Court;
the state constitutions cannot conflict with the United States Constitution. A recent campaign for marriage equality is a classic
example how National and State Laws and Courts work. Some States made same sex marriage legal,
some made it illegal. This went on for years.
In 2014, 35 states had legalized same sex marriage, through state
legislative law, state court case or local federal court case. During this time the issue was moving through
state and federal court systems. In July 2014 alone
five court decisions reversing the ban on same-sex marriage were in the works
in different states and a couple on their way to US Supreme court. When working
on an issue like this it can takes years until it runs through State supreme
courts which needs to happen before it can be appealed to the US Supreme Court
where the final decision is made after the five judges review the complaint in
context of the US Supreme Court. On June
26, 2015 the US Supreme Court legalized same sex marriage in all 50 states and
US territories. The LGBT community won a
long battle for marriage equality on a national level.
The U.S. Supreme Court acts as a
mechanism to insure the rights of the American people and in case decisions
have identified fundamental rights not explicitly stated in the Constitution,
such as same sex marriage. Lower U.S. courts provide a mechanism for people
whose constitutional rights have been violated to get a fair hearing and
depending on the appeal the case can be resolved there. The U.S. Congress also passes laws that
protect constitutional rights and provide remedies for victims of human rights
violations. The most important of these domestic laws are those that prohibit discrimination,
including discrimination based on race, gender, religion, or disability.
An example of a law passed by the United
States Legislature outside of the Constitution and in line with International
Human Rights doctrine is the Safe Drinking Water Act of 1974. In 2016 a case came up in Flint, Michigan
where there was a clean water crisis.
The Safe Drinking Water Act of 1974 that is administered by the
Environmental Protection Agency that establishes minimum standards for state
programs to protect underground sources of drinking water was sued in federal
court. The UN didn’t have a clean water
policy until November 2002, when the United Nations Committee on Economic,
Social and Cultural Rights adopted General Comment No. 15 on the right to water.
Flint, Michigan’s water was contaminated in 2014 and was followed by law
suits being filed citing violations to the Federal Safe Drinking Water Act of
1974 the case decided in favor of Flint residence. Because the United States has not ratified
the ICESCR no human rights violation was pursued by NGOs or the United Nations
in this case.
The US
congress has limited flexibility to address ESCR including the right to health,
education, public welfare and the right to collective bargaining. (2012 p.1)
There is global trend for local governments to looking at international human
rights laws and mechanisms when forming local policy. This is not only happening in the United
States, but also globally with organizations such as the United Cities and
Local Governments (UCLG) that has members in two-thirds of the UN’s member
states. The City of Seattle’s Race and
Social Justice Initiative (RSJI) is an example of a local government entity
using the values and concepts of Human Rights to make policy. (2012 p.1)
Seattle’s RSJI has created opportunities for civic engagement and worked with
local communities to identify problems and shape solutions.
