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the union as the members of the United States stand in relationship to the Federal Union of the United States of America.

It may be illuminating to review the domestic jurisdiction clause in the Charter of the United Nations at this point.

"Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under chapter VII" (ch. I, art. 2 (7) Charter of the United Nations).

Some of the delegates at San Francisco sought to define by "international law" the meaning of "essentially" modifying domestic jurisdiction, and failed. Others sought to require the submission of jurisdictional controversy to a court, and failed, with the result that the General Assembly now sits as judge and jury over its own competence in determining its own competence in this respect.

Some illumination of the meaning of the domestic jurisdiction provision may be provided by the remarks of John Foster Dulles, United States delegate, acting as spokesman of the sponsoring governments (Great Britain, France, U. S. S. R., and United States of America). Mr. Dulles stated that the new (art. 2 (7)) provision was designed to make domestic jurisdiction a basic principle of the organization and not merely a "technical and legalistic formula," limiting pacific settlement. The reference to international law was deleted, according to Mr. Dulles, because of its constantly changing content which caused it to escape definition; it would be "difficult to define whether or not a given situation came within the domestic jurisdiction of a State." (New York Times, report of Mr. Dulles' speech, June 16, 1945, p. 9.) The International Court of Justice could not practically determine the limits of domestic jurisdiction nor could it render advisory opinions, since some States probably would not accept the compulsory jurisdiction provision of the Court statute. Mr. Dulles concluded his defense of the sponsoring governments' text as representing a formula of breadth and simplicity and by reference to the allegedly analogous problem of federalism in the United States (Illinois Law Review, vol. 46, No. 2, From the Covenant to the Charter, May-June 1951, pp. 239–240).

Does this mean that Mr. Dulles considered the relationship of the United States of America to the United Nations analogous to the relationship of the respective States to the United States of America? Or does it perchance mean that he considered the relationship of our State and Federal Governments analogous to the relationship between the nations and the United Nations? It would appear that a fundamental and basic difference that would destroy the analogy occurs in the complementary features of the supremacy clause (VI, 92) and the reserved powers ninth and tenth amendments in the Federal Constitution of the United States.

In the absence of a supremacy clause in the charter complemented by a reservation of domestic jurisdiction as found in our Bill of Rights, it is difficult to find valid and legal basis for analogy of federalism in the relationship between the United States and existing international organizations. This glaring deficiency is the feature that serves to bungle foreign and domestic affairs, to the distress of the patriots who seek to preserve domestic freedoms from foreign interference, and the equally patriotic citizens who recognize the need for law and order in the world community.

Sometime, somewhere, somehow, the line of demarcation between domestic and foreign affairs must be defined, if we are not to be submerged in a monolithic world empire or disintegrate into raw anarchy.

Rather than a ponderous testing of the constitutionality of treaties, or elaborate interpretation of moral commitments one by one through the courts, argument over real or fancied ambiguity in the treaty supremacy provision of our Constitution, or tedious evaluation of language of its proposed modification, it is respectfully suggested that the consideration of the line of demarcation between delegated and reserved powers, foreign and domestic affairs, is a fit subject for the consideration of a constitution-drafting assembly.

. If powers are to be delegated, then they should be delegated to a government, under a federal constitution. All powers not delegated are reserved, and form the incontestable area of domestic jurisdiction.

Upon the drafting of such a proposed constitution, the debate over ratification or rejection could proceed with some relevance to reality. The provisions clearly

stated, the relationship of the prospective members to the union clearly defined. the powers enumerated, the domestic integrity of participants would be protected by the concept of "unconstitutionality."

The drafters of the Constitution of the United States at Philadelphia in 1787 recognized the impracticality of voluntary compliance, the illusion of unanimity, and the immorality of coercion, by developing the alternative of constitutionality. The Federal law became upon ratification, the law of the land in the participating States, and all the judges were bound thereby, just as if it had been enacted through the several State legislatures. But, the States were protected against invasion of domestic jurisdiction by the clearly limited delegation of powers-clear that is, until the march of events served to blur the line between foreign and domestic affairs culminating in the dilemma that we face today.

On the proposition, "Resolved, That the treaty-supremacy clause is a Trojan horse," the great debate continues. It is respectfully suggested that instead of attempts at patching up the beat-up loophole, our security would be better effected by harnessing and stabling the critter on the outside of the city walls, by means of a supranational constitution of strictly limited, carefully defined, judiciously delegated powers, in the manner of our Federal system of dual (or for us, it would triple) government of parallel jurisdiction, reserving the nondelegated powers to the respective states (nations) or to the people.

If such a draft constitution contained a supremacy clause (and what chaos would result if it did not?) the very act of ratification would automatically subordinate conflicting provisions in the constitutions of the contracting parties. To illustrate, did the State of New York actually amend its constitution of 1777 to permit it to join the Federal Union in 1788? Did any of the original Colonies? The ratification of a proposed draft constitution would of course "recur to the original fountain of power" even as the framers of our Constitution provided for

"The ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same" (Article VII, Constitution of the United States, September 17, 1787). [Italics supplied.]

It is important to note in this connection that the ratification was specified "by Conventions." The act of ratification was not expected of the several State legislatures. This is consistent with Madison's remark that it was the "dependent, derivative authority of the legislatures" that had produced the Articles of Confederation, a league, and this (constitution) was derived from the "superior powers of the people."

The process by which the Constitution of the United States is amended is the minimum procedure by which such a draft constitution should properly be ratified by the United States, if the principle of government by consent of the governed is to obtain.

The consent of three-fourths of the State legislatures, or conventions of threefourths of the States, should be a minimum test of the sentiment of the citizens. If such a limited delegation of powers served to halt the advance of the doctrine of inherent powers (Curtiss-Wright to Youngstown Sheet and Tube), and the encroachment of Federal powers at the expense of the jurisdiction of the States, and domestic application of moral commitments, and the fiscal burden of bankrupting proportions, and the necessity of training our children to crouch under tables, dodge into doorways, and dive into gutters, the price would be indeed modest.

Such constitutional delegation of limited powers would by its very definition exempt out interference with all other affairs as domestic. The resulting advance in personal and civil liberty would approach in importance and magnitude the conception and execution of our own Federal Union under which we prosper, insofar as its principles are observed, today. The act of ratification, or rejection, of a proposed supranational constitution would resolve the issue of extent of such a federation, the exclusion or inclusion of charter members, the highly flammable question of "membership."

Our own Constitution was binding on the first nine, which number subsequently quadrupled with applications for membership even now pending. It was the experience of the early American Federalists that some of the most bitter and apparently implacable opponents of the federation, subsequently saw fit to support it to the extent of accepting highly placed and remunerative positions in the administration of the Union.

If the pledge not to coerce is a moral commitment, then coercion is immoral.

The problem of membership and extent resolved by ratification, the corollary problem of junior and senior citizenship was happily ordered by the Northwest Ordinance of 1787, Territorial claims of the several colonies having been transferred to the United States the "underdeveloped areas" received Territorial status with opportunity to achieve full statehood upon meeting the economic, civil, and physical requirements set forth in the statute. Meanwhile, far from being boycotted, banished, or abused, they were permitted to send nonvoting Delegates to Congress for political education, and their economic welfare was cultivated by trade to the mutual benefit of all parties concerned. The corrosive relationship of have and have-not was ameliorated by the possession of the Territories jointly by the United States rather than individually for the profit or responsibility of the original claimants. The saving feature was in the written instruments of impartial procedures, the Northwest Ordinance of 1787, and the Federal Constitution of 1787, which set down in black and white for all to see, the powers, privileges, and responsibilities of these instruments of government. This is the sine quo non of the success of the American principle of Federal Government, continuing the process of government of laws and not of men which found its inception in the Magna Carta, and upon which our heritage of government is based from its inception in the Magna Carta.

If such a supranational constitution is to be drafted, the assembly should convene with its purpose clearly announced. If the instrument is to be ratified, the drafters should represent the will of the people who are to be governed. Recognizing the disparity of various levels of social and political development, the representatives, of course, may be selected in different ways. The drafters at Philadelphia were appointed and commissioned by their respective State legislatures, even as the States subsequently selected their Senators to Congress until the ratification of the 17th amendment in 1913 (40 years ago) which provided for popular election to this Federal body. If we are to extend the ultimate sovereignty of the people to this needed new level of government, we should utilize the highest achievement in the respective parts, in which case, those who have elections, should exercise that privilege, and elect delegates, through their State election machinery, to a world constitution drafting assembly. It should be the privilege of the citizens to initiate, and the responsibility of the State legislatures to provide, for the election of their representatives for this highly specialized and historically endowed function.

This proposal stands on the authority of the Declaration of Independence: the right of the people to institute new government. The reserved powers enumerated in the Bill of Rights: The powers not delegated to the United States (Federal Government) by the Constitution, nor prohibited by it to the States, are reserved to the States respectively or to the people (amendment X). If the power to create new levels of government are not reserved, what powers, then are there? To deny this is to deny the sovereignty of the people, and violate the laws of agency.

The eminent authority on international law, George Finch, Sr. of this city, contributed as much as any individual to the value of the hearings on Senate Joint Resolution 130. As editor-in-chief of the American Journal of International Law, his opinion should properly be given the weight of expert testimony. Mr. Finch appeared in support of the ABA draft which supported the objectives of Senate Joint Resolution 130-in different language-with the stated purpose "to put a stop to the gradual process of altering the basic structure of ovr Government through the unlimited use of the treaty-making power and to restore the function of the Federal Government to its proper place in the constitutional system of delegated powers as intended by the Founding Fathers” (hearings on S. J. Res. 130, at p. 318).

Mr. Finch's concern that the process of altering out structure of government should be stopped, is ample evidence that the process is in fact in progress. It should provide warning that action should be taken. It is not enough, however, to stop the process at the point of effect, without taking precautionary action at the point of cause.

It is not seriously contended that the undue exercise of powers were capricious, or with tyrannical intent. For example, in the case of the steel seizure, the President pointed to the need for steel to implement our foreign policy, and relied upon the national interest and general welfare to countenance his unprecedented action.

The question of governing the world seems to resolve itself to choice of means by steel or by ideas, sword or pen.

Mr. Finch wrote into the record Jefferson's views on the treaty-making powers. "(2) By the general power to make treaties, the Constitution must have in

tended to comprehend only those objects which are usually regulated by treaty" (hearings on S. J. Res. 130, at p. 319).

Here we have the term "usually" which might have sufficed to define or classify "objects" in Jefferson's time, succumb to the ambiguity that pressures of the emergent world community have imposed the classification of affairs, domestic and foreign. But Jefferson continues, "and cannot be otherwise regulated." Here we have the word "otherwise" which should be quite elastic enough to satisfy those who would object to technical and legalistic formula.

It is respectfully submitted that "otherwise" is an open-ended concept analogous to "reserved powers."

It is respectfully submitted that the affairs which could not be regulated by treaty (i. e. domestic affairs) and affairs that are being regulated by treaty to the derrogation of domestic jurisdiction and therefore should not be regulated by treaty, but demand of some form of regulation lest empire or anarchy result, can be otherwise regulated by means of a supranational federation of strictly defined, limited, clearly defined powers, delegated for the order of matters of common concern, by means of accession to a draft constitution.

It is respectfully submitted that no mere treaty can accomplish the minimum essentials of the legislative, judicial, and executive functions in the world community, and that this regulation can be accomplished "otherwise," by a Federal constitution.

This proposal frankly bypasses the issue of the legality of treaties, be they selfexecuting or non-self-executing, with respect to municipal law. This proposal transcends the demarcation of domestic and foreign affairs which apparently defy demarcation in the frame of reference of "sovereign equality of nations" armed to the teeth in overlapping spheres of influence.

This proposal supports the objectives of the resolution under consideration, Senate Joint Resolution 1, by seeking to: protect from abridgment rights enumerated in the Constitution of the United States; prevent foreign or international supervision, control, or adjudication of rights essentially within the domestic jurisdiction of the United States; provide for effective law only through appropriate legislative action (world legislature appropriate for world affairs); provide that relationships between our representatives and foreign or international organizations shall be in the manner and to the extent prescribed by law; provide for the right of representation, inestimable to the people, and formidable to tyrants only.

This proposal calls for the clear definition of domestic and foreign affairs by means of enumerating delegated and reserved powers in a draft constitution.

Apologists for the United Nations, for the treaty-law route through the back door to an evolving world government, beg us to use what we have.

It is the considered opinion of this witness, a layman, but a citizen, taxpayer, and mother of five future-God willing-citizens and taxpayers, that what we have we should surely use. What we have is the record of history: we have the record of consistent failure of treaties, leagues, and pacts to achieve law and order with enduring justice.

We have and we should use it-the American tradition of Federal constitutional government with its record of success attested by its seniority among federal constitutions in effect today. What we have we have shared to the benefit of mankind as some score of other nations have patterned constitutions upon features originating in ours.

We should use what we have: The minds God gave us to choose not only between right and wrong, but between good and better, between application of the worst or the best of yesterday for the needs of today, for the existence of tomorrow.

Our Founding Fathers faced external tryanny and internal despotism and they met the challenge with three immortal documents that need no naming to this subcommittee of the Committee on the Judiciary of the United States Senate. These documents spelled out the delegations-and the limitationsof powers, drew the line between delegated and reserved powers. Ratified by the representatives of some 3 million inhabitants of 13 separate States, they were transformed by that potent alchemy into citizens of the Union, Americans. These principles were applied, not only lineally to the physical descendants of the 3 million contemporaries, but laterally to include, as of today, 157 million fellow citizens in 48 widely diverse States, who are no less New Yorkers or North Dakotans, or Texans because they are Americans.

The crucial test that our way of life, our form of government faces is the continuation of this lateral pass.

Constitutional government has been weighed in the balances of time. It has served our needs. Shall we declare it to be found wanting?

We should use what we have lest we lose what we had. The struggle of democratic principles with tyranny will continue until the millenium, but let us use the process of constitutionalism to let them continue in conference, convention, and in court, replacing bazookas with briefs, flaming napalm with fiery oratory.

Our lives, our fortunes, our sacred honor require it.

Mrs. FENNER. The dangers of treaty law have been ably demonstrated by previous witnesses in hearings on Senate Joint Resolution 130 and the current hearings. Mr. Holman has rendered a great service to our time in coining a phrase. The thrust of Senator Bricker's resolution to modify the supremacy of treaties has impressive support and is backed by an increasingly important segment of public opinion.

The hearing on Senate Joint Resolution 130 at page 23 repudiates the position that foreign and domestic affairs are indistinguishable. The thrust of the resolution and a significant measure of its support is toward the imperative need of drawing the line between domestic and foreign affairs, unequivocally and explicitly for all to see.

Mr. Finch in the hearings on Senate Joint Resolution 130 said that it is time to put a stop to this procession. The fact that a man of his authority and eminence calls to have a stop put to it is ample evidence that the progression exists regardless of allegations to the contrary.

I would like to submit a document by the State Department, Questions and Answers on the U. N. Charter, Genocide Convention, and Proposed Covenants on Human Rights, dated September 1952. The CHAIRMAN. The record will show it filed.

(The document referred to was filed for the information of the committee.)

Mrs. FENNER. After about 5 pages of neatly abolishing numerous strawmen by a series of negative replies to the "numerous queries," we are reassured in these 23 questions that these are not legally binding and then there is given the classic Sei Fujii case.

The Charter represents a moral commitment of foremost importance, and we must not permit the spirit of our pledge to be compromised or disparaged in either our domestic or foreign affairs.

The Charter represents a moral commitment. I would like to ask whose morals are being committed and to whose morals is our conduct being committed for adjudication? The language of the decision for future jurists to read is "We must not permit the spirit of our pledge to be compromised." The words used are "We must not permit" in the decision. We are assured that the Sei Fujii case did not give the Charter supremacy because the appellant's decision was reversed on the basis of the 14th amendment, but we discover that the 14th amendment has found new application and interpretation since the Charter, so what we have is a technical victory for the opponents of treaty law, and we have a moral victory for the binding effect of treaty law.

We have in the United Nations Charter, article II, section 4, a statement that the signatories shall refrain from threat of use of force, and then we have a foreign policy necessitated by security conditions

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