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for defense adequate to deter aggression. This poses a dilemma which should be resolved in a more orderly fashion than is apparent.
Now the need for world law was very ably expounded by the late Charles Tillett, of Charlotte, N. C., in Senate Joint Resolution 130, at page 152. Mr. Tillett pointed out the need for world law and the futility of force. It is fairly well agreed that affairs on all levels should be conducted in an orderly fashion. We are familiar with the hostile harvest to be produced from the sowing of dragon seeds of war. But, gentlemen, it is not enough to stop this progression. We have a false dilemma here of anarchy versus treaty law.
The proponents of treaty law argue against anarchy, and the opponents of treaty law do not argue over an alternative. It is respectfully suggested that there should be a third alternative, and that is constitutional law. The whole burden of this issue is that we must draw the line between domestic and foreign affairs. It is respectfully submitted that if we draw the line, there are two sides to the line. If there are domestic affairs, then there are foreign affairs. If there are domestic jurisdictions, then there must be world jurisdiction. If there are reserve powers, then there are Federal powers.
It is stated in article X of the Bill of Rights, “Powers not delegated are reserved." We cannot reserve powers without delegating powers; we cannot delegate powers without reserving powers because if we do not draw the lines, then the powers are bundled, and it is to this bundling that the supporters of Senate Joint Resolution 1 object.
Now I would like to go back to some early American Federalists, namely Madison, who saw this most clearly in the arguments over the ratification of the United States Constitution when Patrick Henry gave
his famous "give me liberty or give me death." Said James Madison:
Should all the States adopt it, it will be then a government established by the 13 States of America, not through the intervention of the legislatures, but by the people at large.
In this particular respect the distinction between the existing and the proposed system is very material.
The existing system has been derived from the dependent derivative authority of the legislatures of the States: Whereas this is derived from the superior power of the people.
In this classic language, the fundamental difference between the existing league system under the Articles of Federation and the proposed Federal Constitutional Government was stripped away to reveal the material distinction between treaty and law, between league and government. Now it is respectfully submitted that the Statesrights issue has been projected onto a new level from State versus National to National versus international or the world level. We have heard the great debate for many years, and it is now continuing on the proposition that the treaty clause is a trojan horse. It is respectfully submitted that in addition to attempting to patch up that beat-up loophole in the Charter, we should harness and stable the horse on the outside of the city walls by means of a constitution, Federal in structure, of strictly defined, severely limited delegated powers.
If we are to reserve domestic jurisdiction to ourselves, the corollary holds true that we will delegate security measures under a Federal Constitution. This is not proposing more treaty law and batch upon batch of amendment to treaties. This is to propose the drafting
of a Federal Constitution to be ratified or rejected upon scrutiny by the proposed members. Here in the reservoir of nondelegated powers in the United States, all powers not delegated are reserved to the States, and to the people lies the power to regulate government, affirmed in the Declaration of Independence.
It is that power that should be called upon and exercised in the creation of a new level of government. I associate myself with the patriotic individuals and orders who oppose the back-door route to world government through treaty law by interpretation, application, and implementation. This proposal is termed “constitutionism.” It is the historic answer to the treaty law versus Federal law.
This position is supported by Jefferson. Mr. Hatch performed a great service when he read Jefferson's treaties from Jefferson's Manual into the record of Senate Joint Resolution 130 last year. Treaties should be objects usually regulated by treaties but which cannot be otherwise regulated. “Usually” might have been adequate in those times, but the word “usually” has been rather changed and warped by the pressure of emergent world communities so that we will have to go to the regulated which cannot otherwise be regulated.
It was respectfully submitted that the thought "otherwise regulated" would be an open-ended thought analogous to reserve powers. It is respectfully submitted that these affairs not usually regulated that should not be regulated by treaties can otherwise be regulated by constitutional law. Otherwise there are no reserve powers.
If there are no reserve powers, then we do not have a Constitution of delegated powers here in our country today, and the statement of one highly placed official to me when I was discussing the doctrine of inherent powers and deploring the progress from Curtiss-Wright to
Youngstown Sheet & Tube, and he said to me, "Madam, what you learned in civics class and what you heard here today are two different things."
If that is the case, I have four boys approaching selective-service age, and I think we should know what it is that we are being called upon to provide for with our lives, our fortunes, and our sacred honor.
The conclusion seems to be inescapable that we cannot preserve our domestic jurisdiction without granting supranational jurisdiction in a limited area. Conversely, the granting of powers in a limited jurisdiction is necessary to preserve domestic jurisdiction. If a line is to be drawn, then it would seem to follow that there would be 2 sides to that line, domestic and world jurisdiction; the very concept of reservation of powers implied a delegation of powers.
Now it may be argued that such delegation of powers has already occurred in the delegation of foreign affairs under the treatymaking powers to the executive, with the advice and consent, it may be hoped, by two-thirds of the Senate present and voting, but experience indicates that the executive branch might not in each and every instance effect wholly satisfactory discrimination between the delegated powers over foreign affairs and the nondelegated powers so far as treatymaking processes are concerned.
This proposal supports the objectives of the resolution under consideration by seeking to protect from abridgement rights enumerated in the Constitution of the United States; to 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; provide that relationships between our representatives and foreign or international organizations shall be in the manner and to the extent prescribed by law, namely, under a ratified and draft constitution, and to provide for the right of representation of the people in legislature, à right inestimable to them, and formidable to tyrants only.
I was referring there to George III, quoting from the Declaration of Independence.
This proposal is based on the declared right of the people to create government. We have been urged to use what we have; the apologists for the United Nations say use what we have. Gentlemen, I respectfully submit that what we have is the record of history of the consistent failure of leagues and the consistent success of constitutional Federal Government. I submit that we should use what we have. We should use the brains, the reasoning power that God gave us to apply the experience of the past to the needs of today that we may survive in the future, first physically and second under a form of government which we would be proud to hand on down to our children as the legacy given to us, the system of federal constitutional government.
We pledge our lives and our fortunes and our sacred honor that we use what we have and the power of our intellect to apply it.
The CHAIRMAN. Senator Dirksen and I appreciate your statement very much.
Any questions, Senator Dirksen?
The CHAIRMAN. Mr. Pearson of the Association of the Bar of the City of New York?
Mr. Backus. My name is Dana Backus. Mr. Pearson and I are here together, and if it is all right with you, I would like to take the first
I part of the presentation.
The CHAIRMAN. We would be glad to have both of you come up. Mr. Pearson, would you like to have Mr. Backus speak first, and then you follow him?
Mr. PEARSON. Yes.
STATEMENT OF DANA CONVERSE BACKUS, ON BEHALF OF THE
ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK, NEW YORK, N. Y.
Mr. BACKUS. My name is Dana Converse Backus, 50 Broadway, New York, N. Y. I am a citizen of the United States, and I am chairman of the committee on international law of the Association of the Bar of the City of New York.
I have prepared a statement which I would like to file with the committee.
The CHAIRMAN. It will be made a part of the record. (The statement referred to is as follows:)
STATEMENT IN OPPOSITION TO SENATE JOINT RESOLUTION 1 BY Dana CONVERSE
BACKUS, CHAIRMAN, COMMITTEE ON INTERNATIONAL LAW OF THE ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK
We have now before us a proposed constitutional amendment (S. J. Res. 1) which would prohibit entirely certain kinds of treaties and executive agreements and change the traditional machinery for handling many treaties and executive agreements.
The Association of the Bar of the City of New York opposed the preceding version of this proposal (S. J. Res. 130, 82d Cong., 20 Sess.) and approved a report holding that the fears voiced by some concerning treaties and executive agreements did not justify assuming the real dangers involved in constitutional amendments. We offer for the records of the committee the report referred to.
Senate Joint Resolution 1, though shorter, is like Senate Joint Resolution 130 in stultifying our foreign policy in an attempt to achieve security from unjustified fears. To write Senate Joint Resolution 1 into the Constitution would put serious barriers in the way of conducting our foreign affairs, and this disadvantage far outweighs such benefit, if any, that might be hoped for from its restrictions. In these dangerous times when obliteration can descend from the sky without warning and when there is greater need than ever for adequate power to obtain agreements with other nations and to perform those agreements, our country cannot afford the risk of such impediments. For the reasons set forth below, we are opposed to Senate Joint Resolution 1.
THE PROHIBITIONS OF SENATE JOINT RESOLUTION 1 The principal prohibitions of Senate Joint Resolution 1 are found in sections 1 and 2.
So far as section 1 is concerned, this matter is discussed at length on pages. 1-7 and 10–17 of the New York City Bar Association report referred to. The conclusion there is that the apparent purpose of section 1 of Senate Joint Resolution 130 (reflected again in S. J. Res. 1) is unnecessary because under present law treaties and, a fortiori, executive agreements cannot abridge cone stitutional rights.
The presently proposed section 1 reads as follows:
“A provision of a treaty which denies or abridges any right enumerated in this Constitution shall not be of any force or effect."
It is a tribute to the good sense of our successive Presidents and Senators that to this day no case has arisen calling for a decision that a treaty was contrary to the Constitution. We are indeed fortunate that our fundamental law has worked out so well. However, we are not without guideposts in this field,
In considering and holding valid certain treaties, the Supreme Court has had occasion to affirm the supremacy of the prohibitions of the Constitution which protected fundamental rights. In the case of Geofroy v. Riggs (133 U. S. 258 (1890)), the Court was considering the common law of the District of Columbia, to the effect that an alien was barred from inheriting land of an American citizen who had died intestate. The treaty of 1853 with France was invoked by the plaintiffs, French citizens, to support their right of inheritance. In holding in favor of plaintiffs that the treaty permitted them to assert their right to inherit the land, the Court stated (p. 267):
"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. It would not be contended that it ertends so far as to authorize what the Constitution forbids, or a change in the character of the Government or in that of one of the States, or a cession of any portion of the territory of the latter, without its consent * * *. But with these exceptions, it is not perceived that there is any limit to the questions which can be adjusted touching any matter which is properly the subject of negotiation with a foreign country." (Italics supplied.]
You may hear much about Missouri v. Holland (252 U. S. 416 (1920)) which reaffirmed the principle of Ware v. Hylton (3 Dall. 199 (1796)) that in the field of treaties the United States acts as one united nation. In writing the Missouri v. Holland opinion, Mr. Justice Holmes was careful to avoid any implication that there were no provisions of the Constitution which could affect treaties. The Court stated :
"* * * We do not mean to imply that there are no qualifications to the treatymaking powers
** * * The treaty in question does not contravene any prohibitory words to be found in the Constitution."
Missouri v. Holland upheld a statute protecting migratory birds pursuant to a treaty, although prior to the treaty some lower courts had held that a Federal statute in that field was not within congressional power. In other words, while a treaty cannot override the Constitution, a treaty and legislation pursuant thereto do have priority over State laws. Actually the case of Missouri v. Holland is not pertinent to a discussion of Senate Joint Resolution 1 because this resolution does not propose to alter the existing Federal-State relationship in the treatymaking field exemplified by Missouri v. Holland. Nor should it be altered, since Federal supremacy in the treaty field is essential if we are to act as one nation and not lapse back into the impotency of the Articles of Confederation. Our fore fathers cured that evil (Ware v. Hylton, 3 Dall. 199 (1796)).
Section 1 is not only unnecessary, but also it introduces an ambiguity within itself. Is it intended here to reach out and prohibit treaties in situations where the Constitution is not effective, a treaty of friendship, for example, dealing with the rights of any American in a foreign state? Is the usual provision that he shall have access to the foreign courts to be nullified because the courts do not have jury trials? While such an intention seems, at first, unlikely, reading the broad sweep of section 1 against the qualified wording on rights in section 2, might have this result.
However, much worse could result from section 2, which we quote below:
“No treaty shall authorize or permit any foreign power or any international organization to supervise, control, or adjudicate rights of citizens of the United States within the United States enumerated in this Constitution or any other matter essentially within the domestic jurisdiction of the United States."
The section would prohibit the United States from making any agreement with one or more other nations under which any nation, or any international body thereby jointly created, could "supervise, control, or adjudicate” any of the prohibited subject matters. The limitation would run against action thus taken for the prosecution of wars, the prevention of wars, and the promotion of commercial and other peacetime objectives of joint concern. The subjects prohibited go beyond personal rights, as they would presumably include property rights (e. g., under the due-process clause). The domestic jurisdiction prohibition could exclude from such agreements for joint action a number of the functions which our Government in the past has found it advantageous to handle by joint action.
When the scope of section 2 is tested by specific instances, it becomes apparent that its prohibitions are more sweeping than may at first appear, and that they would interfere with matters of vital concern to our country. Prohibition of supervision or control by a foreign power or internationıl
organizations The most serious consequences would probably be felt in the field of pre vention of war, It has come to be the overwhelming view in this country that any truly effective measure for international disarmament must provide for real controls at the source in each country, and for adequate inspection by outsiders to assure each country's observance of the limitations. President Eisenhower in his inaugural address stated that we stand ready to engage in joint effort to remove the causes of mutual distrust and so to make possible drastic reduction of armaments, the sole requisites being that such efforts be aimed honestly toward secure peace and that "in their result-they provide methods by which every participating nation will prove good faith in carrying out its pledge.” Gov. Adlai E. Stevenson approved the inaugural address as being an eloquent and splendid restatement of past policies of the United States."
If we want an international body to check up from time to time on Russia's plants and production of atom bombs, submarines, or bacteriological weapons, we must also authorize that body to supervise our own. Control at the source was a key provision of the so-called Baruch proposal, under which an international agency would have been given powers with respect to the process and ownership of atom bomb facilities. While this plan was sponsored by our country and won the approval of the free nations, it foundered on the rock of Soviet disapproval. Yet if our Constitution had contained section 2 or any other blanket prohibition on treaties involving matters of domestic jurisdiction, we ourselves could not have advanced this proposal nor adopted it if made by others.
In the field of military preparedness, section 2 would leave us vulnerable. The United States has been invaded before and can be again. Our Alaskan