with foreign nations. A good deal of the testimony that was submitted here I think by Governor Stassen, overlooked that fact, ignored entirely that the interstate-commerce clause also confers the same legislative power on the Congress in matters of foreign commerce.

In a case before the Supreme Court, it was held that these two powers, the powers over interstate commerce and the powers over foreign commerce, are coextensive. I give the reference to that in the document. (License Cases, 5 How. 504, 578.)

Can it be logically maintained that Congress has the legislative power to remove prospective burdens on interstate commerce arising out of purely local practices and conditions, but does not possess, under the same constitutional provision, legislative power to remove burdens affecting aliens in this country which Congress may deem it necessary to regulate in order to promote reciprocally the rights of American citizens abroad in the interest of foreign commerce? You would have to ignore one part of that constitutional clause in order to try to make that point against the amendment proposed by the American Bar Association.

Senator SMITH. Didn't Governor Stassen take a different view yesterday?

Mr. FINCH. I do not recall that he did.

Senator SMITH. I mean, did he not take the view that the commerce clause did not give the power that you state it did give, and which I also thought it gave?

Mr. FINCH. I say he made the wrong argument.

Senator SMITH. That is what I was trying to bring out.

Mr. FINCH. He made only half an argument.

The CHAIRMAN. At any rate, his argument is contrary to yours. Mr. FINCH. It is contrary to mine. I had not heard his argument when I wrote this statement.

In asserting that Congress has legislative power to pass all necessary and proper laws to implement its power to regulate commerce with foreign nations, I am not advocating the extension of Federal power under that clause. I am using that argument solely to show that the adoption of the constitutional amendment approved by the American Bar Association would not seriously interfere with the negotiation of future commercial treaties.

An examination of some of the commercial treaties now before the Senate Committee on Foreign Relations discloses that they do not manifest careful regard for the prerogatives and policies of the States in all matters in which they might claim a paramount interest. The treaty of friendship, commerce, and navigation with Israel signed at Washington on August 23, 1951, contains a paragraph by which theNationals of either party shall not be barred from practicing the professions within the territories of the other party merely by reason of their alienage.

The laws of 31 States require members of the bar to be American citizens. In the others, admissions to the bar are regulated by rules of court or of bar associations which may include requirements as to citizenship. Admission to the bar usually requires the taking of an oath to support the Constitution of the United States. The ratification of a treaty with the above-quoted provision would override the laws and regulations of every State which restricts the practice of the legal profession to citizens.

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The CHAIRMAN. Mr. Finch, there is nothing in our Constitution that says that you have to be a citizen of the United States even to be a Federal judge. There is nothing in our Constitution that requires you to be a citizen to be a Federal judge here.

Mr. FINCH. But a Federal judge has to take an oath to support the Constitution of the United States.

The CHAIRMAN. Yes; but he does not have to be a citizen.

Mr. FINCH. He would probably lose his alienage if he took that oath; that is in the laws of his own country.

The CHAIRMAN. Maybe so.

Mr. FINCH. I think the present citizenship law says that if any American citizen owes allegiance to another country, or takes an oath of allegiance to another country, he ipso facto loses his citizenship. He may become a stateless person.

The CHAIRMAN. But I want to call your attention to the fact that that is in the Constitution of the United States. There is no provision in our Constitution that a judge has to be a citizen.

Senator DIRKSEN. The Constitution does not prescribe the qualifications for judges of inferior courts.

Mr. FINCH. How about the Judiciary Act? How about the laws of the Judiciary Act? I have not examined that point, the Judiciary Act. You would also have to take the Judiciary Act into consideration.

The CHAIRMAN. This committee took this up 3 or 4 years ago. Warren Austin wrote the opinion on it. He held there was nothing against it.

Mr. FINCH. That may apply to judges, but certainly these laws of the States require members of the bar to be citizens and take the oath of allegiance. The treaty does not cover judges. I am discussing treaty provisions.

May I proceed?

The CHAIRMAN. Certainly. I just wanted to bring that to your attention.

Mr. FINCH. Now, the same situation with reference to the practice of professions by aliens would obtain where under State laws aliens are not permitted to teach in the public schools. In all the States where they do not permit aliens to teach in the public schools, if this treaty could come into effect as the supreme law of the land, it would override those laws and allow aliens to teach in the public schools notwithstanding the desire of the people of those States to prevent aliens from teaching.

To the extent that the amendment proposed by the American Bar Association would make it impossible for treaties to supersede State laws on such subjects, I am wholly in accord with that purpose. Admission of aliens to the legal or teaching professions can have no proper relation to the foreign commercial policy of the Nation.

Senator BRICKER. The same thing would be true of the medical profession.

Mr. FINCH. Or any other profession.

I shall not prolong this statement by discussing all the enumerated legislative powers vested in Congress by section 8 of article I of the Constitution in the absence of treaty. This feature of our amendment has been dealt with at length in an article by me in the American Bar

Association Journal, 1952, entitled, "The Treaty-Clause Amendment," which the editor of that Journal did me the honor of stating was "the case for the association." I beg leave to submit that article for the record.

(The article referred to above follows:)

THE TREATY-CLAUSE AMENDMENT: THE CASE FOR THE ASSOCIATION

By George A. Finch of the District of Columbia Bar 1

(In this article, Mr. Finch, editor in chief of the American Journal of International Law and a member of the American Bar Association's Committee on Peace and Law Through United Nations, sets forth the scope and intendment of the proposed constitutional amendment to limit the treaty clause of the Constitution. The amendment was drafted by the Peace and Law Committee and was approved by the House of Delegates at the midyear meeting in Chicago last February. Mr. Finch's article is an authoritative statement of the committee's reasons for sponsoring the amendment.)

The House of Delegates of the American Bar Association at its meeting in Chicago on February 26 adopted a resolution to recommend to Congress an amendment to the Constitution of the United States reading as follows:

"A provision of a treaty which conflicts with any provision of this Constitution shall not be of any force or effect. A treaty shall become effective as internal law in the United States only through legislation by Congress which it could enact under its delegated powers in the absence of such treaty."

This proposal has three objectives: (1) to render void any treaty in conflict with the Constitution; (2) to prevent any treaty from becoming self-executing as internal law until Congress acts, thus bringing the position of the United States into harmony with that of the great majority of nations; and (3) to confine Congress in legislating under treaties to those powers which it has in the absence of a treaty; in other words, to make it clear that Congress cannot acquire additional legislative power under a treaty that it does not otherwise possess and thus preventing treaties from upsetting the balance between state and federal power.

The first sentence will expressly incorporate into the Constitution an interpretation that the Supreme Court in a number of dicta has stated is now implied in that fundamental instrument of government. On the other hand, many judicial and other statements have been made that no treaty has ever been declared unconstitutional, with intimations that the treaty-making power is not derived from the Constitution but from inherent sovereignty-a confusion between the status of a government under international law, on the one hand, and its status as a matter of domestic constitutional law, on the other hand. The first sentence of the proposed amendment will permanently resolve these theoretical conflicts.

There is much misunderstanding regarding the application in the internal affairs of the United States of decisions of the Supreme Court regarding the powers of the Federal Government inherent in sovereignty. For example, Mr. Justice Sutherland, speaking for the Court in United States v. Curtiss-Wright Export Corporation, 299 U. S. 304–318 (1936), stated that "the investment of the Federal Government with the powers of external sovereignty did not depend upon the affirmative grants of the Constitution." Citing a number of previous cases based on the law of nations, the learned Justice continued: "This court recognized, and in each of the cases found the warrant for its conclusions not in the provisions of the Constituttion, but in the law of nations * * As a member of the family of nations, the right and power of the United States in that field are equal to the right and power of the other members of the international family."

CURTISS-WRIGHT CASE CONFUSES CONCEPTS

Properly understood as applying to the totality of powers of the Federal Government in all its branches, these are but commonplace statements of accepted principles of international law. The confusion arises from the fact that in the

1 George A. Finch, a graduate of the Georgetown University Law School and a member of the Bar of the District of Columbia, has been associated with the American Society of International Law since 1909, and is now one of its vice presidents. He assisted in organizing the Carnegie Endowment for International Peace in 1911 and served in various capacities with the Endowment, retiring as Director of its Division of International Law at the end of 1947.

Curtiss-Wright case the Court was not dealing with international law but with the validity of the delegation of an unchallenged legislative power to the executive under the Constitution of the United States. The treatymaking power was not involved. Regardless of any implication that may be drawn from such statements, the correct view is that the treaty-making power in its application to the internal affairs of the United States is a delegated power and is not founded on the theory of inherent sovereignty. "Limitations upon the exercise of the treatymaking power are due to the fact that the power itself rests in grant, and being one of the delegated powers, stands on no higher footing than any of the other powers delegated under the Constitution, and, as the power to amend the Constitution is distinct from the treaty-making power, it cannot be exercised to the detriment or exclusion of the other provisions of the Constitution." (Report on the Extent and Limitations of the Treatymaking Power, by Chandler P. Anderson, Counsel and Adviser to the State Department, made to and approved by Secretary of State Elihu Root.) Mr. Anderson did not deny the inherent attribute of the sovereign power of an independent nation to make treaties upon every question pertaining to international relations, but he could not admit that the treaty-making power in the United States exercised the sovereign power of the nation as a whole. "When, however, the treatymaking power is not exercised by the sovereign power of the nation as a whole, but has been delegated to a branch of the government by which it is exercised in a representative capacity, the treaty-making power there, although it arises from sovereignty, rests in grant, and can be exercised only to the extent of and in accordance with the terms fixed by the grant." (Report cited above, published in 1 American Journal of International Law 636 (1907).) See also the same author Treaties as Domestic Law, 29 ibid. 472 (1935). In his report, Mr. Anderson cites the decisions of the Supreme Court in the cases of Holden v. Joy, 17 Wall. 242, and Geoffroy v. Riggs, 133 U. S. 267. From the latter he makes the following quotation: "The treaty power, as expressed in the Constitution, is in terms unlimited except by those restraints which are found in that instrument against the action of the government or of its departments, and those arising from the nature of the government itself and of that of the States." Therefore, Mr. Anderson concludes, "The only constitutional limitations and restrictions imposed upon the exercise of this general power to make treaties are to be found in the provisions of the Constitution which expressly contide in Congress or in other branches of the Federal Government the exercise of certain of the delegated powers and establish certain rights which may not be interfered with, or impose certain obligations which must be observed by the Federal Government, and finally, which reserve to the States or to the people all powers not granted to the United States."

These views were reiterated by a later distinguished authority on constiutional and international law, a former Chief Justice of the United States, Secretary of State of the United States, and Judge of the Permanent Court of Justice at The Hague. Speaking as president of the American Society of International Law before that body on the subject of the Limitation of the TreatyMaking Power of the United States on April 26, 1929, Charles Evans Hughes said:

"The normal scope of the power to make a treaty can be found in the appropriate object of the power. The power is to deal with foreign nations with regard to matters of international concern. It is not a power intended to be exercised, it may be assumed, with respect to matters that have no relation to international concerns. *** If we attempted to use the treatymaking power to deal with matters which did not pertain to our external relations, but to control matters which normally and appropriately were within the local jurisdiction of the States, then I again say there might be ground for implying a limitation upon the treaty-making power that it is intended for the purpose of having treaties made relating to foreign affairs and not to make laws for the people of the United States in their internal concerns through the exercise of the asserted treatymaking power." Proceedings of the American Society of International Law, 194-196 (1929).

A treaty under the Constitution has been defined by the Supreme Court as "primarily a compact between independent nations. It depends for the enforcement of its provisions on the interest and honor of the governments which are parties to it." Edye v. Robertson (112 U. S. 580 (1884)). In defending the treatymaking clause before the Constitution was adopted, Alexander Hamilton wrote: "The power of making treaties * * * relates neither to the execution of the subsisting laws, nor to the enaction of new ones *** Its objects are",

he emphasized, "contracts with foreign nations, which have the force of law, but derive it from the obligations of good faith. They are not rules prescribed by the sovereign to the subject, but agreements between sovereign and sovereign.' The Federalist, No. 75. Hamilton's statement that treaties have the force of law referred to the provisions of article VI of the Constitution; but that was the first instance of any government declaring that treaties should be the supreme law of the land. Ware v. Hylton (3 Dallas 199 (1796). With a few exceptions, no other governments have followed the example of the United States.

TREATIES NEED NOT BE LAW OF THE LAND

It is not a requirement of international law that treaties be the law of the land or be enforceable without action of the legislative power. International law is not concerned with the methods of enforcing treaties in the domestic domain. There is no uniform rule in all countries investing the courts with powers of treaty enforcement even following legislative action. The rule varies in different countries between judicial and executive action and combinations of both powers.

As stated above by Mr. Justice Sutherland, the position of the United States in the family of nations under the law of nations is exactly the same as that of any other nation. This equality was judicially determined by a federal court nearly a century ago with respect to the enforcement of treaties. Mr. Justice Curtis in Taylor v. Morton, 2 Curtis 454 (1858); affirmed by the Supreme Court, 2 Black 481, held:

"The foreign sovereign between whom and the United States a treaty has been made has a right to expect and require its stipulations to be kept with scrupulous good faith; but through what internal arrangements this shall be done is exclusively for the consideration of the United States. Whether the treaty shall itself be the rule of action of the people as well as the government, whether the power to enforce and apply it shall reside in one department or another, neither the treaty itself nor any implication drawn from it gives him any right to inquire."

In that case the Court recognized the purely municipal character of the provision of Article VI of the Constitution making treaties the law of the land, and anticipated the effect of its possible repeal as follows: "If the people of the United States were to repeal so much of their Constitution as makes treaties their municipal law, no foreign sovereign with whom a treaty exists could justly complain, for it is not a matter with which he has any concern."

It is usual that treaties do not become internal law except by an act of internal legislation. An unimpeachable statement of the law on this subject as it exists today was made by the Judicial Committee of the Privy Council in the case of Canada v. Ontario and other Provinces [1937], A. C. 326, in a case involving the power of the Parliament of Canada to enact labor legislation in compliance with a treaty, a subject which the provinces asserted came within their exclusive legislative competence. In denying the power of the Dominion Parliament to enact such legislation, the Privy Council held that "There is no such thing as treaty legislation as such. *** Such a result would appear to undermine the constitutional safeguards of Provincial constitutional autonomy." The Privy Council then gave the following analysis of the law on the subject:

"It will be essential to keep in mind the distinction between (1) the formation and (2) the performance of the obligations constituted by a treaty, using the word as comprising any agreement between two or more sovereign states. Within the British Empire there is a well-established rule that the making of a treaty is an executive act, while the performance of its obligations, if they entail alteration of the existing domestic law, requires legislative action. Unlike some other countries, the stipulations of a treaty duly ratified do not within the Empire, by virtue of he treaty alone, have the force of law. If he national executive, the Government of the day, decide to incur the obligations of a treaty which involve alteration of law, they have to run the risk of obtaining the assent of Parliament to the necessary statute or statutes. To make themselves as secure as possible they will often in such cases, before final ratification, seek to obtain from Parliament an expression of approval. But it has never been suggested, and it is not the law, that such an expression of approval operates as law, or that in law it precludes the assenting Parliament, or any subsequent Parliament, from refusing to give its sanction to any legislative proposals that may subsequently be brought before it."

The Privy Council recognized the binding obligation of a treaty between the contracting states, but held that "The nature of the obligations does not affect the complete authority of the legislature to make them law if it so chooses."