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It is regrettable that the consideration, being given to this important subject should be complicated by this confusing incident. In my judgment this report should not have been filed with your committee, since it not only does not reflect the views of the American Bar Association, but since it also fails to comply with the requirements of the association's bylaws quoted above. I desire to add, however, that so far as I know, the officers of the section were not responsible for the filing of the report with your committee and Mr. Tondel, the chairman of the section, was acting pursuant to the direction of his council in presenting the report to our house of delegates.
To summarize the situation, it is my opinion that the action of the house of delegates in receiving and filing the section report, under the limitations stated, did not change or modify in any respect the action previously taken by the vote of a substantial majority of the members of the house of delegates at the February and September 1952 meetings approving proposals for a constitutional amendment on treaties and executive agreements, with which action, I am certain, you are already completely familiar. I am confident that Mr. Tondel, the chairman of the section, does not disagree with such opinion.
I wish to take this opportunity, as an officer of the association, to express to you our sincere appreciation for the courtesies extended to the representatives of this association and the careful consideration which your committee is giving to the views of the association with respect to this and other matters pending before your committee. With kindest regards. Sincerely yours,
JOSEPH D. STECHEB. Mr. HOLMAN. He is the parliamentarian of the association and has been secretary for many many years.
STATEMENT OF FRANK E. HOLMAN, PAST PRESIDENT, AMERICAN
Mr. HOLMAN. Mr. Chairman, I have prepared a statement, but I want to preface it, in view of some of the testimony that has occurred, by an oral, statement which I will have to just give in my testimony.
Mr. Chairman, since I am about to leave and will have no other chance of expressing my appreciation to you and the members of this committee for your great care and deliberation and your fine handling of this matter, I do so now.
The CHAIRMAN. Thank you, sir.
Mr. HOLMAN. This has been a great case. Dean Manion said it was the hottest constitutional issue since the Civil War. Dr. Finch said it is the greatest constitutional issue since the proposal for the Bill of Rights. These two great constitutional lawyers, who have given careful study to the American Bar proposal, not only with regard to its constitutional aspects under American constitutional law but with regard to its aspects in the field of international law, lave already advised you that most of the contentions advanced here by the City Bar of New York and by the departments of Government are without foundation in law, neither in American constitutional law or in international law.
Judge Phillips, who is also a great constitutional lawyer, has taken the same position, not in any offhand way but having studied this matter carefully for a period of more than 5 years.
I single these three gentlemen out because in my opinion Dean Manion and Judge Phillips and Dr. Finch are outstanding authorities in this field.
Mr. Rix, Mr. Ober, and Mr. Deutsch are also outstanding.
The CHAIRMAN. Mr. Holman, I call your attention to a letter we received from Herbert Nilles.
Mr. HOLMAN. I am coming to that.
As the chairman has just suggested, not only these gentlemen that I have mentioned but outstanding constitutional lawyers in practically every State of this Union who have devoted themselves to a consideration of this matter have come to the same conclusion as the witnesses who have testified here on behalf of the American Bar proposal. Only the City Bar of New York and only by reason of reports made by Mr. Pearson, who was with the State Department for a number of years and has the State Department slant on these matters, and by Mr. Backus, who was in San Francisco under Mr. Stettinius, only based on the opinions of those two gentlemen have we really had any opposition to this amendment either now or at the previous hearing.
I say that, Mr. Chairman, because I have made a careful study of last year's record and was present while it was taken. I sat during these hearings, and every argument advanced by the Departments of Government are merely a repetition and a slight expansion of the arguments advanced by these two gentlemen of the City Bar of New York.
The State Bar of New York refused to go along with them in condemning this amendment. There is no other bar association in the United States, city or State, that has taken any official action against this American Bar proposal for a constitutional amendment.
Mr. Nilles, whom you referred to, from North Dakota, who in any book is the leading constitutional lawyer in that area, has given it careful study. He has written a letter in here. He would be here today to testify in support of this American Bar amendment were it not that he is engaged in some very delicate negotiations with respect to some important labor matters which affect seriously the industries of North Dakota.
Now, in addition to that, sir, when the American Legion comes in here with a resolution supporting this amendment, they do not do it because some fellow got up on the floor of the convention and moved it. This proposed amendment was studied by the legislative committee of the Legion, and I will furnish Mr. Smithey with the names of seven lawyers on that, all over the United States. It was studied for 2 years. I tried to get the Legion to act a year earlier and they refused until their legislative committee had studied it. So their resolution is based upon the study and the unanimous opinion of a panel of seven distinguished lawyers throughout the United States.
Now, you come to the attorneys general of the United States, the chief law officers of the several States of the Union. I spoke to them first at their Seattle meeting 2 years ago. They refused to take any action. They submitted it to a panel of distinguished lawyers and that panel, on their own study and having before them at the time of that study all the record of last year, that panel of State attorneys general unanimously came out and recommended to the organization the support of this amendment and there was not a dissenting vote by anv State attorneys general in the United States.
So, you have here--and it is important-to reconcile evidence as in a lawsuit. How does it come about that you have these lawyers all over the United States with no ax to grind, with no selfish interest
to pursue, with no motive involving their own power? How does it come about that we have this unanimity and we have only on the other side, sir, the city bar of New York, which did the original study and then an adaptation of those studies by the opponent last year and by the opponents this year?-and, sir, they made the same mistakes in their testimony here that the city bar made. They even preserved the mistakes.
The distinguished Secretary of State here the other day, after saying the administration would abandon any idea of pursuing this Human Rights Covenant, said we did not need to worry about executive agreements because executive agreements were not the supreme law of the land. The city bar of New York made that original mistake, made it because they did not read the Pink case and the Belmont case.
Mr. Schweppe will tell you, as I am telling you, and Mr. Finch, if he were asked, or any of us who read these cases, that the Supreme Court definitely decided in those cases that an executive agreement was the supreme law of the land under the same footing as a treaty.
I bring that out, sir, not as a criticism of these gentlemen who have adapted their arguments from what they took from the city bar argument.
The same thing is true—and I want to bring that out—there has been no proper reading by these opponents of Ware v. Hylton. The State of Virginia under that case did not pay the British claim. The United States Government treated it as an international obligation.
As Mr. Finch has pointed out here, treaties are valid internationally, even though not locally, and Congress appropriated the money to pay those claims.
Also, take the case of Geofroy v. Riggs, which has been cited on the proposition that that was a treaty which involved a consideration of overriding State law. It did nothing of the kind, if you will read the treaty. The treaty worked out a modus operandi between the reserved rights of the Constitution and the treaty.
So, it has been characteristic here that the mistakes of the original study by the city bar have been preserved throughout this record, last year and this year. So, how do you reconcile this record, sir? In any lawsuit or contest you try, first of all, to reconcile it. Well, sir, it is quite easy to reconcile it. It is a conflict of ideology. We say rather glibly in general world affairs that we have a conflict of ideology between the Communist and our type of government. That is not what I am suggesting at all. But, inside every government, long before communism was ever heard of, there was always a conflict of ideology between the men in power who wanted more power, who did not want to be annoyed or fettered by a constitutional restraint or even by the law, and who said, “It is much easier to do these things just as we want to do them."
That is the story of this case. These gentlemen—last year the other administration; this year our own administration-do not want any restriction upon their exercise of power. They entirely overlook, sir, and I think they are overlooking the vast number of voices that are being raised in this country everywhere-not only by lawyers like Mr. Nilles of North Dakota, Mr. Corwick in Tennessee, Brigadier General Riter out here in Utah, dozens I could name and call them by their first name--they are overlooking the fact that not only the law
yers in the great majority in this country but also the lay people, the women of this country, everywhere, are alerted to this and they want just one thing, a protective shield written into the Constitution of the United States which will say that no provision of a treaty which conflicts with a provision of the Constitution is valid, and that no treaty or executive agreement shall make domestic law unless it is implemented by the constitutional processes of our Government; namely, the Congress of the United States.
Now, sir, I want to review because I must. I have great respect for Mr. John Foster Dulles. He is a fine gentleman, also for his adviser, Mr. Herman Pleger. But, sir, Mr. Schweppe and I called on Mr. Pleger when we were here on the previous trip. He told us
You American Bar people have done a great job I am not sure he will not deny it
Why don't you go on home; you have defeated the Genocide Convention; you have defeated the Covenant on Human Rights. We are not going to bring that out. So, you won't have anything to talk about. We said
Well, sir, that is the age-old argument of a government of men. We are not asking for this amendment as against the present administration. We are ask. ing it against all administrations for the simple purpose of protecting the American people. So, I say, sir, if you want to reconcile all the evidence in this case,
I you can do it on the simple formula that here is a conflict of ideology of government. We are a government of limited powers—the Federal Government is. We are a government of constitutional restraint, and if you do not get this amendment, under Mr. Dulles' statement of the law-which he made not carelessly but to a formal American Bar meeting-under his statement of the law, sir, you have a method by which you can put a dictatorship in this country just as easily--and I am not being rhetorical—just as easily as the Reichstag turned Germany over to Hitler. Why, sir? Because if a treaty or an executive agreement is the supreme law of the land—and Mr. Dulles says it is, and I can read that in his ticket because the Supreme Court in two cases says that an executive agreement stands on the same basis—Mr. Dulles says: Treaties make international law and they also make domestic law. Under our Constitution treaties become the supreme law of the land. They are indeed more supreme than ordinary laws, for congressional laws are invalid if they do not conform to the Constitutionwhereas treaty law can override the Constitution. All right, if treaty law and executive agreement, as now held by our Supreme Court, can override the Constitution, an executive agreement or a treaty can be made by which, on some pretext of defense or some other pretext, it can be said that it is advisable that we should have a one-man government in this country. He says: Treaties can take power away from the Congress and give them to the President.
That, sir-and I have read it-was the German Constitution. The German Constitution permitted that. So, when Mr. Hitler went into the Reichstag, he operated under the complete legal power, because the German Constitution permitted the Reichstag in time of emergency to
surrender their legislative powers to the Executive, and that is just where we are under Mr. Dulles' own statement: Treaties can take powers away from the Congress and give them to the President. And you have the German and Italian thing all over again.
I do not want the press to say that I am saying we are on the verge of a Hitler, but I am talking about what the power is. Unless you shut that off and someday in the distant future when Mr. Dulles is gone and you and I, sir, are gone, and we have this man on horseback and he goes into a subservient Congress, he will quote the Secretary of State of the United States and say: Why, a Senate committee had before it the opportunity of preventing this thing and the Senate had the opportunity, but what the Secretary of State then said was that treaties can take powers away from the Congress and give them to the President. They can take powers from the States and give them to the Federal Government; therefore, destroy our Federal Government. They can cut across the rights given the people by the constitutional Bill of Rights.
Sir, that is even a more dangerous statement than was in the German Constitution and the Italian Constitution when a dictator came along and went to a subservient legislature and said, “I want all the powers, legislative as well as executive."
Senator BRICKER. You missed one of the important sections where he said they can transfer powers from the States and give them to the Federal Government or to some international body.
Mr. HOLMAN. Yes, that is right, or to an international body. But what I want to point out here is now and for the press and for the public is that all you have to do, all some ambitious man has to do at some day in the future, if this constitutional amendment is not passed, is to say under entire legal and constitutional process, under the present treaty laws and as outlined by the distinguished John Foster Dulles, you can do all these things.
Now, in the light of Mr. Dulles' statement a constitutional amendment is so clearly necessary to protect the American rights and the American form of government that it ought to be without question. Unless these gentlemen in Government want to do things easily and not pay any attention to constitutional restraints, why, there would be no opposition to it.
Now, I pick up my text. The various arguments opposing the constitutional amendment may be summarized as follows:
(1) There is no need for a constitutional amendment because, inter alia, we have had, as yet, no really bad treaties. I shall dwell with that later;
(2) Bad treaties will be prevented by Senate vigilance. Well, a short time in the future if the effects of treaties are such as this, all you need to do is to have a President who has an overpowering personality and can get bad treaties ratified, but I shall show we have had bad treaties;
(3) Even where bad treaties are drafted, American rights can be protected by understandings and reservations;
(4) If båd treaties are ratified, they can be nullified by subsequent legislation;
(5) A constitutional amendment would handicap the conduct of our foreign relations.