Constitution, "To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the Government of the United States, or in any department or officer thereof"? If in this debate there is to be any statement that there have been no treaties which have been ratified which have been deleterious in their effect, even though the treaties themselves might have covered entirely lawful subjects, then I have given you two leading illustrations as to the reputation of the charge of the Secretary of State and the Attorney General that we could not produce that sort of result. Who has the power to tell Congress how to legislate on the subject of a lawfully made treaty? Who is to tell Congress what legislation it is to enact to implement a treaty and when it is to do it? In our opinion, to state the question is to answer it. We are of the opinion that the reservation is totally ineffective for the accomplishment of its purpose of preserving our internal structure. The same lack of power is evident as to the second part of the reservation-that of preserving the power of the States. By the Constitution and all decisions of the Supreme Court, the States are deprived of all power by treaties and implementing legislation, to say nothing of the effect on existing constitutions, decisions, and legislation. It follows that as the reservation route is ineffective to stop the operation of a constitutional power in Congress, the situation can be corrected only by a constitutional amendment to accomplish the exact purpose of the reservation of the Senate in the ratification of the charter to the effect that the treaty shall not enlarge the powers of the Federal Government or to limit the powers of the several States with respect to any matters recognized under the Constitution as being within the reserved powers of the several States. We submit that the action of the Senate in the ratification of the Charter of the Organization of American States proves our contention completely that only a constitutional amendment can restore the United States under the Constitution to a nation of delegated powers of Congress and reserved powers of the States. Without that amendment the people of the United States have another kind and character of government without their approval, assent, or knowledge. A peaceful revolution has been attained. As we have shown, treaties have a tremendous effect on our form of government. Are we obliged to give up that form of government in order to cooperate with other nations? Are any others giving up their chosen form? A great change has been effected and the question is as to how we can get back to our form of government. We cannot repudiate these charters without unfortunate repercussions in the international field. Perhaps we can repair our situation by renunciation of certain obligations in the treaties. Which shall we follow-the pleas of do nothing now, mere inconvenience of the State Department, or the amendment of the Constitution? Which will permit us to cooperate with the nations of the world without destruction of our form of government? The world needs the United States and its strength, engendered by its form of government. We need and demand our own form. Is there any lingering doubt as to the sentiment of the people of the United States when they know the facts as to these matters? How can any Senator face his people if he fails to restore that which has been taken from them? How can a dual system of enumerated and delegated powers and practically undelegated and unenumerated powers of Congress arising from treaties be made to work in the same structure? By which standard shall the validity of legislation of Congress be determined-by the Constitution of the United States, the Charter of the United Nations, or the Charter of the American States? Must Congress or can Congress designate the source of its power under which any legislation is enacted? What standard, one or all of the sources, shall be used by the courts or the Department of Justice to determine the validity or the constitutionality of acts of Congress. Gentlemen, that goes back to every bit of legislation you have passed in the last 8 years, since the charter was in effect. What standard shall lawyers use in advising the people of the validity of legislation? What standard shall the people of the United States use to determine what their laws mean and the authority by which they are enacted? It must be realized that the combined authority of the sources of power means in effect that we live under a Congress of omninotent power. What protection has any minority under such a system? Does Congress want such power or will it now surrender it to the people by the submission to them of adequate amendments to restore the power of government to the people of the United States and the several States? The great increase in the power of Congress to legislate under unenumerated powers and the consequent decrease in the ability of the Supreme Court to determine the unconstitutionality of legislation under a dual standard of authority for the enactment must force us to consider the outstanding contribution made by the framers of the Constitution when they introduced the doctrine of separation of powers into constitutional government. They wanted to get away from a form of government of which Blackstone said: It can do everything that is not naturally impossible and, therefore, some have not scrupled to call its power, by a figure rather too bold, the omnipotence of Parliament. True it is, that what Parliament doth, no authority on earth can undo. Corwin says in The President, Office and Powers, page 9: The doctrine of the separation of powers comprises, along with the doctrine of dual federalism, one of the two great structural principles of the American constitutional system. Erwin N. Griswold, Dean of Harvard Law School, in the March 1953 issue of the Harvard Law Review, page 870, in an article entitled "The Demise of the High Court of Parliament in South Africa," says: An American lawyer will not find it difficult to conclude that the latest case, like its predecessor, was properly decided. Legislative bodies with limited powers are an essential part of our tradition and our constitutional structure, and we do not feel any impairment of sovereignty or any affront to the will of the people when an act duly passed by a legislative body is held to be beyond its constitutional power. On the contrary, we may feel a sense of strength in the fact that even our legislative bodies must govern under the law. A great American jurist, Chief Justice Arthur T. Vanderbilt, of New Jersey, recently delivered three lectures in the Pound series at the University of Nebraska which have just appeared in book form, with the title of "The Doctrine of the Separation of Powers and Its Present-Day Significance." You see how this question presses upon us constantly from all these sources. In the introduction he says: Individual freedom and the progress of civilization are attainable, but only if each of the three branches of government conforms to the constitutional principles of the separation of powers. This they will do only if the people so will, The problem in the first instance thus becomes one of popular education in the fundamental principles of free government. Among these principles there is nome more significant today than the doctrine of the separation of powers. After analyzing the governments of the Soviet, Hitler's Germany, France, and Latin American countries with emergency powers, the Chief Justice writes, page 34: It does not require much political acumen to perceive that in Russia, where the judgments of the courts may be set aside by an executive body, or in Hitler's Germany where the executive could by decree take over all government and even change the constitution itself, or in a number of the countries of Latin America where the executive may almost at will declare an emergency and thus assume unlimited power, there is no such thing as individual liberty and there cannot be a stable, progressive society. And even in France, whose republican institutions are in so many ways similar to our own, the executive is still exercising legislative power in flat defiance of the plain words of the constitution and there is no court that will even hear a protest against such conduct. I am not suggesting that strict adherence to our doctrine of the separation of powers would have guaranteed to the individual the liberty that brave men in all of these lands have struggled for, but surely it must be conceded that the failure to have provided in the organic law against unwarranted interference with both the fundamental rights of the individual and the stability of the normal processes of government indicates a fundamental lack of perception of the nature of the relationship that must exist between the citizens and the state if the rights of both the individual and society are to be assured. 'Is there any more depressing fact in the whole catalog of the world's woes today than this tragic lack of understanding in so many quarters, first, of the relation between the separation of powers and the rule of law and, second, of the relation between the rule of law, as a substitute for force and tyranny, and individual freedom and the dignity of man? Particularly is this so when the world over restlessness, discontent and revolution predominate without, however, there being any clear comprehension of the desired goals or the way of obtaining them. From his study the Chief Justice concludes that the doctrine of equality of the three branches of government is gone and that the rank is now executive, legislative, and judicial. From the experience of governments which have no check on legislative power it is evident that under a system of possible domestic law arising from treaties as we have described it and its effect, the legislative branch may assume the highest place followed by the executive, and the judiciary at its lowest ebb in our history. Without definite constitutional standards for the determination of the constitutionality of legislation, that must inevitably follow. One of our proudest concepts of government has been the power of the Supreme Court to declare acts of Congress to be beyond its delegated powers and invalid. Marbury v. Madison was a landmark, the masterpiece of a great Chief Justice. To prevent this process of corrosion, the American Bar Association has submitted amendment of the Constitution to restore to the people their form of government which has been taken from them without their consent. A conclusion from Chief Justice Vanderbilt may be in order, page 142: But must it not be apparent to everyone, as we gaze into the future, that we cannot hope to maintain the way of life which we call American without exercising every effort to preserve to each branch of government its proper sphere and to the states and the Union a due recognition of their proper functions? As we have pointed out continually, three outstanding changes have been effected in the character of our Government by ratified treaties of the past 10 years-the vast increase in the power of Congress to legislate, the steady decrease of the power of the Supreme Court to declare legislation of Congress to be unconstitutional, and the right and power of the States to exercise their traditional powers of government. The situation demands positive action. Gentlemen, I hope you will pardon me for speaking with some heat, but when we were subject to the definite challenges which I described before, I think they call for some heat. Thank you very much. The CHAIRMAN. You had an excellent statement. Senator BUTLER. Beautiful. Senator BRICKER. It was presented very clearly. The CHAIRMAN. We will adjourn until 10 o'clock tomorrow morning. Mr. Stassen will be here? Mr. SMITHEY. Yes. The CHAIRMAN. Who else? Mr. SMITHEY. He has asked to follow Mr. Dunn, who is the General Counsel of the Department of Commerce. Mr. Delaney of the A. F. of L. will be here tomorrow; also Mr. Finch of the American Bar Association. Mr. Holman will make a supplementary statement and also Mr. Schweppe. The CHAIRMAN. Is it my understanding we will complete the hearing this week? Mr. SMITHEY. Senator, the hearing that is scheduled tomorrow is the last one that is scheduled. I think we will wind up all the witnesses tomorrow. The CHAIRMAN. Fine. We will adjourn until 10 o'clock tomorrow morning. (Whereupon, at 5: 15 p. m., the hearing was recessed until 10 a. m., Thursday, April 9, 1953.) TREATIES AND EXECUTIVE AGREEMENTS THURSDAY, APRIL 9, 1953 UNITED STATES SENATE, SUBCOMMITTEE OF THE COMMITTEE ON THE JUDICIARY, Washington, D. C. The subcommittee met, pursuant to recess, at 10 a. m., in room 424, Senate Office Building, Senator William Langer (chairman) presiding. Present: Senators Langer, Jenner, Watkins, Dirksen, McCarran, and Smith. Also present: Senator Bricker; Wayne H. Smithey, subcommittee counsel. The CHAIRMAN. The meeting will come to order. Who is our first witness, Mr. Smithey? Mr. SMITHEY. Mr. Stephen F. Dunn, General Solicitor of the Department of Commerce. The CHAIRMAN. We are certainly very glad to see you. STATEMENT OF STEPHEN F. DUNN, GENERAL COUNSEL, Mr. DUNN. My name is Stephen F. Dunn, General Counsel of the Commerce Department. I wish to explain, Mr. Chairman and gentlemen, that before receiving your invitation to appear before this committee, the Secretary of Commerce, the Honorable Sinclair Weeks, had made plans to be away from Washington during all of this week. Rather than impose upon you for an extension of time, he instructed me to appear on his behalf. While time did not permit me to clear the exact text of my remarks with him, or to submit copies to you in advance, I have discussed the substantive issues involved with the Secretary, and I am authorized to say that he is in accord generally with the views which I shall express here today. By way of introduction, I should like to offer for the record the attached report which the Secretary recently made to the President regarding those activities of the Department which bear upon the subject matter of the resolutions which your committee now has under consideration. In matters of aviation safety and air navigation, for example, you will note that uniformity between countries is essential as an aid to air transportation, and the Civil Aeronautics Administration has a primary interest in the negotiation of a variety of treaties and executive agreements dealing with such subjects. 30572-53-66 |