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treaties providing for internal State reciprocity on the model of the treaty with China just quoted.
Senator Smith. Mr. Finch, we have this question. It is now past 5 o'clock, and I suppose all the members of the committee have some commitments for this afternoon. Senator Watkins and I are anxious for the other members to hear what you have to say. Would it be just as well to take it up tomorrow morning at 9:30 ?
Mr. FINCH. I would be very happy to. I am going through this a little faster than I care to.
Mr. HOLMAN. We prefer that because Mr. Schweppe has a statement, and I think I have one, too. We think Mr. Finch is the greatest expert in this country on constitutional and international law and we have been guided by him all through here so that we would do nothing in the text of our amendment which would interfere with any of the legitimate functions of government and whenever George Finch said, "No, don't do that," we have always abided by what he said.
Senator Smith. It seems to me it would be preferable to recess until the morning, say, 10 o'clock.
Mr. Finch. I would be here at 9:30 if you want me to.
Senator Smith. I believe 10 o'clock would be better. I am anxious for the other members of the committee to hear what you are saying because this answers so many of the questions raised that I did not think were disposed of quite correctly in view of the law, and you are answering them.
Senator WATKINS. I fully agree with Senator Smith on that. Senator BRICKER. May I say I am mighty happy to have that done.
I I I have read this twice, and it is a great description of international law.
Senator SMITH. Then we will recess until tomorrow morning at 10 o'clock.
(Whereupon, at 5:10 p. m., the committee recessed to reconvene at 10 a. m., Friday, April 10, 1953.)
TREATIES AND EXECUTIVE AGREEMENTS
FRIDAY, APRIL 10, 1953
UNITED STATES SENATE,
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, Watkins, Dirksen, McCarran, and Smith.
Also present: Senator Bricker; Wayne H. Smithey, subcommittee counsel.
The CHAIRMAN. The meeting will come to order.
STATEMENT OF GEORGE A. FINCH, SR., MEMBER, COMMITTEE ON
PEACE AND LAW, AMERICAN BAR ASSOCIATION Mr. Finch. Mr. Chairman, I got part way through my statement when we adjourned to give everybody a breathing spell. Before I begin with the narration which I have in this statement, I would like to supplement a part of my testimony which I gave very hurriedly yesterday afternoon.
I referred to the provision of the Constitution of all the nations of the world regarding the treaties becoming the law of the land, those by ratification and those that require parliamentary approval. I referred to an analysis of these provisions of all the constitutions of the world which was appended to the report of the Committee on Peace and Law for the United Nations for September 1, 1950. I have that report with me now and if it is desirable to incorporate that appendix in the record, it is here for that purpose.
The CHAIRMAN. Let it be incorporated.
(The statement was incorporated in the record at the previous hearing.)
Mr. Finch. In that connection I would like to read my analysis of those provisions which is very short and which is embodied in that report. I am now reading from page 11 of that report:
The ratification of treaties without the approval of the National Legislature is the exception rather than the rule in modern constitutional law. There are only four nations in addition to the United States in which treaties may be ratified with the advice and consent of the Senate only, namely: Mexico, Liberia, Cuba, and the Phillipines.
The constitution of 24 nations requires all treaties to be submitted to the approval of the national legislatures while the largest group of 28 requires parliamentary approval of all treaties which affect internal law,
and that is the effect of the amendment which we are now proposing, to put us in that greatest category of modern constitutions of the worldrequires parliamentary approval of all treaties which affect internal law, the rights of citizens, or which need implementation by the legislature.
In the last-mentioned group, treaties are divided into two general classes according to subject matter. First, those within the prerogative of the executive power alone, and, second, those requiring approval by the national representative body so as to safeguard the right of the people to be governed only by laws enacted with their consent.
So the American Bar Association is proposing to put the United States on a parity with most of the other nations of the world.
Senator SMITH. Mr. Finch, that means, does it not, that one of the main objectives of these proposals is to protect the individual citizen and give him the full benefits of the Bill of Rights under the American Constitution so they cannot be whittled away by this roundabout, circuitous evading of these rights by this system of treaty law such as you described yesterday?
Mr. FINCH. It does that, Senator, and it does more. It protects the whole body of our citizens from being subjected to law in which foreign nations participate. We can make a treaty with the smallest nation in the world and under the concept which we are now following under our present Constitution, the smallest nation in the world can get a treaty with the United States, and the Senate can ratify it, and that is binding as law upon everybody in the United States although there may be only a few hundred thousand people within that foreign nation that can govern the conduct of 150 million people over here.
Senator SMITH. And although its effect would not be allowed by legislative enactment by itself, by the House and Senate, and approval of the President?
Mr. Finch. That is right.
Mr. Fincii. Such a treaty, Senator, overrides all previous Federal law and all State laws and State constitutions, and, as we have shown by judicial construction it probably overrides the Constitution as Secretary Dulles admitted out in Louisville a year ago.
Senator Smith. There is not anything in your testimony that.can call attention more vividly to the fact that what we are trying to do is to preserve among other things, to the individual citizens, the rights protected by the Bill of Rights.
Of course, my State at the time of the adoption of the Constitution held out to the very last, was next to the last State to ratify, and would not ratify the Constitution until the Bill of Rights was approved.
Mr. Finch. That is exactly what we are trying to do. As I said yesterday, we are now trying to write a bill of rights against the treatymaking power.
Senator DIRKSEN. Referring to Governor Stassen's testimony of yesterday, Mr. Finch, it occurs to me it is such settled doctrine beyond all cavalier question, that if Congress enacts any law that contravenes the rights it falls when the Supreme Court gets its teeth in it. I think that is settled doctrine with which nobody would quarrel.
Now, the second stop would be how strange that what Congress cannot do by the solemn use of the lawmaking power could be done by treaty that you contravene the Constitution.As I recall, he said
“Well, under certain circumstances." Well, can you imagine any circumstances under which a treaty ought to contravene the rights vouchsa fed in the Constitution?
Mr. Finch. I cannot. On the other hand, I cannot envision the Supreme Court declaring a treaty unconstitutional. It has not done it and under the more recent advanced position of the Supreme Court, I cannot see how the Supreme Court could declare a treaty unconstitutional. It is possible that some administration could be so foolish as to say that the United States should have a king. I cannot imagine the Supreme Court would say that would be constitutional, but if you depend on the prohibitory words of the Constitution, they are very few because the Constitution is not, so far as the Federal Government is concerned, a series of prohibitions; it is a series of provisions of affirmative delegation of power.
Senator SMITH. That is it exactly.
Mr. Finch. When the Supreme Court says you cannot do by treaty what the Constitution forbids, you have to take a fine-tooth comb to find what the Constitution forbids.
In this connection, several of the witnesses have tried to minimize the importance of what I am testifying to here about the need of. congressional or parliamentary approval for treaty law of an internal character by stating that other governments have parliamentary systems and we do not have that sort of system, and therefore, there is a difference. I have been trying to figure out, in my own mind, what they mean by that, and for the life of me I cannot do it.
I think they are ignoring one of the well-established principles of international law that a change in government does not affect the international rights or obligations of that nation. It does not make any difference whether Mr. Churchill is in power in England or somebody else is in power, its Government is going on and on, and that succeeding Government has the same international obligation that the previous Government had that made the treaty. Yet, the rule of that constitution remains, no matter what parliament is in power, before that treaty obligation can become a matter of internal law that Parliament has to enact it.
Senator DIRKSEN. It would seem to me, Mr. Finch, that argument that was made by Secretary Dulles actually helps state the case for the Bricker resolution for this reason: Because, when the treaty is negotiated and the Government leaders are a part of it and they are also Members of the House of Commons, they come there with the information in the first instance. Here, however, the Senate is never a part of the negotiations; it is absolutely uninformed until the treaty has been negotiated, and it has to start from scratch. In a parliamentary country they do not start from scratch because every occupant of the Government bench in the House of Commons has already been warned in advance of the details that go into the making of the treaty because he has been part of it. Notwithstanding that fact, they still require it be implemented by legislation.
Mr. FINCH. Yes, sir. I would like to make another suggestion, Senator, on the question of the Senate constitutional power over treaties and the question of legislation.
Now, most of the witnesses opposing this amendment have gone back and tried to tell us what the Founding Fathers meant. I an
swered that, I think, yesterday, but I would like to add another element to that argument.
The reason why the Senate, as distinguished from the House of Representatives or the whole Congress, was made a partner in the ratification of treaties was the argument of the need of secrecy. That runs through all the debates in the constitutional conventions. Now, who can argue, though, that legislation binding upon the people should be enacted in star-chamber proceedings? The whole argument rebounds against those who make it. The very element of legislation binding on the people is that it should be public. Imagine the Congress of the United States closing its doors to the public when legislation is under consideration.
The reason why they had the Senate-if you will examine those debates—was the need of secrecy. You could not let the public in on what is being done in treaties. Of couse, they have plenty of secrecy in treaties and executive agreements, too, but they also apply it to lawmaking treaty; the people should not know what is being acted on in the form of treatymaking power in the form of legislation binding on them unless some time in some lawsuit involving criminal action, involving the rights of a citizen, the treaty is sprung on you and you are told this is binding on whatever you have in your State laws or constitution.
Now, may I proceed with the main argument, Senator?
Mr. Finch. I concluded yesterday afternoon with an answer to the criticisms that the amendment of the American Bar Association would require the consent of the 48 States of the Union to treaties of commerce and navigaton. I dealt specfically with the question of the rights of aliens to own and dispose of land. Now I will take up this morning, the subject of other provisions of such treaties.
But it might be argued that there are provisions of commercial treaties outside of those relating to land tenure and ownership, such as those relating to details of business, as to which it might not be feasible or desirable to stipulate on an international State reciprocal basis and that, as to these, Congress would lack legislative power to legislate in the absence of treaty. That argument may have been valid some years ago, but it would be of very doubtful validity today.
I should like, at this point, to quote from the little book by former Justice Owen Roberts of the Supreme Court, entitled "The Court and the Constitution," which contains lectures he delivered at Harvard University, and were published by the Harvard University press in 1951. Mr. Justice Roberts says:
By virtue of the exercise of the commerce power to remove prospective burdens on interstate commerce arising out of purely local practices and conditions, the Congress has superseded the police power of the States and taken unto itself police power in a vast field of business and other activity. * * * It seems hard to draw a line in respect of this type of prophylactic legislation. Its operation must be permitted to extend to the smallest units and to activities that once were thought so remote from interstate commerce as to have no appreciable effect on it.
That is the end of Mr. Justice Roberts' statement about the extent of the interstate-commerce clause.
Now, we must remember that commerce clause vests in Congress all legislative power to regulate commerce not only with the States, but