or giving effect to treaty provisions as internal law within the United States. Because the question of whether and to what extent a treaty is self-executing is today not clearly defined, all treaties should be made non-self-executing in the domestic area until Congress acts. This arrangement not only would let the several States of the United States know promptly where they stand, but would put the United States on a parity with other nations, and would put the world on notice of the limitations on America's treaty-making power. It may be that limiting Congress to implementing treaties within the field of its delegated powers will exclude some areas in which treaties are now made or proposed. LOOPHOLE IN DOCUMENT America's Bill of Rights forbids the Congress to change basic rights; but as the Constitution now stands, it does not prevent the basic rights from being changed by a treaty made by the treaty-making agency, which consists of the President and two-thirds of the Senators present and voting. This is the loophole in the Constitution which Americans now face, and through which the internationalists propose to move and, by treaty law, change and level out American rights (both State and individual) and therefore change the form of Government. The proposed amendments are not anti-U. N. measures. They do not prevent the United States from participating fully in all the activities of the United Nations authorized by its Charter. The proposed U. N. Human Rights Covenants, however, illustrate the dangers inherent in the treatymaking power. They are predicated on the astounding and un-American theory that, although the basic rights cannot be changed by acts of Congress or by our State legislatures, yet they can be impaired and even destroyed by international action, and America's social and economic policies defined and fixed by international declarations and treaties. Americans can and should do much within the U. N. to promote worldwide respect for human rights. But rather than lower Americans' own standards of human liberty to compromise with godless and Socialist members of the U. N., the United States should seek to bring them up to its standards. CONSTITUTIONAL CRISIS There is also the great danger today that American sovereignty may be whittled down by those who seek a gradual approach to world government through the United Nations. It is no mere rhetorical statement to say that America faces a great constitutional crisis-one that threatens the very foundations of the Republic. The effect of trying to incorporate in an international document the rights and freedoms which American citizens enjoy, whether under State or National Constitution, and to make them international rights and matters of international interpretation, and to give foreign governments as well as individuals and pressure groups in foreign countries the right and opportunity to challenge America's interpretation of its rights, and even to challenge its rights to the protection of its own courts, constitutes not only a grave threat to American rights but an actual and present threat to the independence of the United States. The present treaty clause in the Constitution under present-day conditions is a Trojan horse which is about to unload its hidden soldiery in America's midst. Needed therefore is a constitutional amendment that will drive the beast outside the walls without more damage done and with its remaining armored soldiery securely locked within. CON Critics of these proposed amendments to the Constitution say no change in the treaty-making procedure is necessary. They argue as follows: They would alter the basic structure of the Government as established by the Constitution; They are contrary to the basic theory of separation of powers among the three branches of the government; They would seriously curtail the treaty-making authority of the United States, preventing the Government from entering into many treaties which are beneficial and necessary to the interests of the United States; They would so seriously interfere with the historic and fundamental functions of the Executive and the Senate in the field of foreign affairs that they would jeopardize the influence of the United States in the world today. A synthesis of the combined views of the opposition follows: The framers of the Constitution recognized that, although govermental power could be a danger to individuals, there was even greater danger in rendering the Government incapable of dealing effectively with problems it would face. RIGHTS OF SOVEREIGNTY These proposals would deny to the United States, in its dealings with other nations, rights of sovereignty which other nations exercise. They would seriously alter the existing balance of Federal-State relations. They would make international agreements of all kinds more difficult to negotiate and enforce. They would impose these restrictions not because the Nation's Bill of Rights has been impaired, but because the advocates of these amendments fear that at some indefinite time in the future they might be. The only case of alleged danger presented by the proponents of the amendments is the possibility that at some time the Senate may be asked to consider giving its advice and consent to ratification of a treaty or treaties of information, on human rights, and on an international criminal court. CONSIDER ON MERITS Yet the freedom of information conventions were never fully completed and have already been laid aside by the U. N. The United States has announced it would not support them because of objectionable features. The covenants on human rights that the U. N. has been working on for 5 years are still in draft form and years from completion. The proposal for an international criminal court is only under preliminary study by a U. N. committee, and is likewise years from becoming anything for the United States even to consider. There is nothing improper or even dangerous in the people of the world being interested in ways to protect and guarantee human freedoms; and the United States does not flinch from aiding in such endeavors. When there are definitive proposals for consideration, then is the time to accept or reject them on their merits. But we can see no valid reason to amend the Constitution so as to prevent the President and Senate from even considering international solutions to what are regarded by most nations of the world as international problems of gravity and importance. RATIFICATION EYED Since any constitutional limitation of the scope of treaties would weaken the position of the United States in international negotiations, it is incumbent on proponents of such limitations to show definite and compelling need for it. That showing is not made by pointing to particular treaties not yet ratified or not yet even submitted for ratification, which rightly or wrongly are said to be objectionable. It would be as appropriate to urge that because Congress may pass, and doubtless has passed, some bad laws, it should be deprived of legislative powers. If the U. N. conventions to which objections have been made are as bad as they are said to be, they will presumably not be ratified. There is no warrant for lightly assuming that the President and two-thirds of the Senate, all of whom are bound by oath to support and uphold the Constitution, would seek to subvert it. Advocates of these amendments exhibit a fear of a "superstate" into which this Nation is said to be in danger of being absorbed. The answer to such contentions, of course, is that the President and the Senate cannot make a treaty which is repugnant to the spirit of the Constitution. The treaty power is not wholly unlimited. Treaties cannot violate specific prohibitions of the Constitution, nor can they subvert its essential nature. It has further been suggested that there is no constitutional protection against a treaty which impairs rights of free speech, press, or religion. Court cases down the years, however, have made it clear that the due-process clause of the fifth amendment applies to all Federal action making any amendment to prevent abridgment by treaty or executive agreement of the essential liberties guaranteed by the first 10 amendments unnecessary. United States officials certainly would not knowingly advocate anything to reduce the protection for individual liberties within the United States; but, in any event, the Constitution as it now stands would preclude any treaty from having the effect, however inadvertently, of impairing or abridging human liberties within the United States. CHANGE IN BALANCE There may be room for doubt as to the merits or demerits of a particular treaty; but those issues can be fully dealt with by the Senate in deciding whether to ratify it. But a constitutional amendment which would prohibit the United States from dealing with the problems of human liberties at an international level, and which would deny to the United States powers of sovereignty possessed by every other nation, would have the most damaging effects. The American Bar Association proposal would place a different and even greater limitation on the treaty power. It would limit the effective scope of many treaties to those matters which are within the delegated legislative powers of Congress, by providing that no treaty could have effect as domestic law except through legislation enacted by Congress in the exercise of its delegated legislative powers. This proposed denial to the Federal Government of a large part of the treaty power granted by the Constitution and repeatedly exercised since the beginning of the Republic, would produce a change in the balance between Federal and State power. The ABA's proposal that treaties, after ratification, require approval of both Houses of Congress is particularly objectionable, as it places a second hurdle for treaties before they have domestic effect. The delays and difficulties inherent in such a two-stage process would make other nations reluctant to enter into treaties with the United States. This is not to suggest that all treaties should be self-executing. There are laws providing for participation by the House in cases where such participation is appropriate, without making participation a rigid requirement in all cases. There are three such ways: THREE METHODS SEEN 1. A treaty may, and frequently does, provide that it is not self-executing, making legislation by both Houses necessary to implement it through appropriations and other ways; 2. The Senate, with its power to impose reservations, can insist that a treaty not be self-executing; 3. In an extreme case, there is the undoubted power of Congress to check the President and Senate by subsequent statute to override the treaty so far as its effect on domestic law is concerned. Under the Bricker resolution in particular, such treaties of friendship, commerce, and navigation as America has with Italy, Ireland, Colombia, Denmark, and Greece would be impossible. American participation in such humanitarian treaties as the Slavery Convention of 1926 would be ruled out. It would prevent the United States from accepting its own so-called Baruch proposals for the international control of atomic energy. It would prevent the United States from ever accepting John Foster Dulles' scheme for an international striking force to guard against Soviet aggression. Under it, the United States could not have taken Texas or Hawaii into its great family. The President could not have traded the overage destroyers for the strategic bases in the Western Hemisphere in the last war. What these amendments would do, in effect, would be equivalent to throwing out the baby with the bath water. While they would undoubtedly automatically kill such treaties as have to do with the U. N. and with human rights, they would at the same time make any treaty-making next to impossible. The CHAIRMAN. We will adjourn until 10 o'clock tomorrow morning. (Whereupon, at 6:30 p. m., the subcommittee was recessed to be reconvened at 10 a. m., Thursday, February 19, 1953.) TREATIES AND EXECUTIVE AGREEMENTS THURSDAY, FEBRUARY 19, 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, Hon. William Langer, chairman of the committee, presiding. Present: Senators Langer, Dirksen, and Smith of North Carolina. Also present: Senators Watkins and Bricker. Wayne H. Smithey, subcommittee counsel. The CHAIRMAN. The committee will come to order. I have some letters and telegrams here which I would like to have made a part of the record. The record will show the names and addresses and briefly which side they are on. The CHAIRMAN. Will you call the first witness? Mr. SMITHEY. Mr. Frank Ober, the committee on peace and law of the American Bar Association. STATEMENT OF FRANK B. OBER, ON BEHALF OF THE COMMITTEE ON PEACE AND LAW, AMERICAN BAR ASSOCIATION, BALTIMORE Mr. OBER. For the record my name is Frank B. Ober, 640 Mathieson Building, Baltimore, Md. I have practiced law for 40 years within 40 miles of this room. I want to speak very briefly about the first sentence of the proposed amendment as formulated by the American Bar Association. In the first place, let me say that when Senator Bricker opened the hearings last spring, he said a great constitutional issue was at stake. I think it has never been more plainly stated than by the Secretary of State when he pointed out that the treatymaking power is liable to abuse and that treaties can be used to override our Constitution and to affect the rights of the citizens under the Bill of Rights. Now, that is the reason, Mr. Chairman, that I think the first sentence which makes a treaty that conflicts with the Constitution of the United States is of such tremendous importance. Let me just refer only briefly to a succession of events that seemed to me to emphasize the dangers because some of the witnesses who have testified or who will testify will say, "Let's wait until some damage has been done." Mr. Chairman, you will remember that one of the first things that the United Nations did was to have that Declaration of Human Rights. Now that declaration, which was supposed to be merely a statement of aspirations, has been in effect some years. want to call your attention to the fact that in the United Nations |