has been very active and has submitted a resolution intending to accomplish the same thing that we are attempting to accomplish here in a little different wording. I think after we have had the presentation to this committee, Mr. Chairman and members of the committee, that we will be able to have the committee work out a wording that will meet the desires of all of us and accomplish what we are all attempting to accomplish.

The CHAIRMAN. Senator Bricker, I would like to invite those gentlemen from the American Bar Association to sit at this table.

Senator BRICKER. I am very happy to have them here. Mr. Rix just told me he is going to present this subject matter to the meeting of the Newspaper Association of the United States at a very early date, which is a great opportunity to get this story presented to the country. Most of the newspapers we have had reports from are supporting the purposes of this amendment.

Mr. Webb of our office has been in constant touch with your staff here in working out this amendment and in considering the testimony that was adduced at the last hearing.

There are two reasons, Mr. Chairman, why Senate Joint Resolution 1 has attracted such widespread support. The American people want to make certain that no treaty or executive agreement will be effective to deny or abridge their fundamental rights. Also, they do not want their basic human rights to be supervised or controlled by international agencies over which they have no control.

What is the extent of the treatymaking power under the Constitution? In a speech last year in Louisville, Ky., Mr. John Foster Dulles, who is now Secretary of State, said:

The treatymaking power is an extraordinary power, liable to abuse. Treaties make international law and also they 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 Constitution, whereas treaty law can override the Constitution. Treaties, for example, 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 or to some international body, and they can cut across the rights given the people by the constitutional Bill of Rights. The CHAIRMAN. May I interrupt to say that Mr. Dulles has written me a letter stating that he wants an opportunity to appear here before this committee and to express his views. I am placing the entire letter into the record. Will you read the letter?

Mr. SMITHEY (reading):

DEAR SENATOR LANGER: The receipt is acknowledged of your letter of February 12, 1953, in which you state that the subcommittee considering Senate Joint Resolution 1, proposing an amendment to the Constitution relative to the making of treaties and executive agreements, has scheduled open hearings for 10 a. m., Wednesday, February 18, 1953.

I should like to take this opportunity to inform you that the Department is greatly interested in this resolution and Secretary Dulles would appreciate having an opportunity to appear before the subcommittee to present the views of the Department. In addition, the Department would appreciate being given an opportunity to file with the committee certain written material bearing on this subject.

Since the Secretary has only recently returned from his trip to Europe, he has, of course, found a number of pressing problems requiring his consideration. In view of this fact, I would like to ask if it would be convenient for the subcommittee to permit Secretary Dulles to appear before it at a later date, the exact time to be fixed as the result of discussions with the subcommittee.

I would appreciate your letting me know if this arrangement will be convenient to the subcommittee.

Sincerely yours,

THRUSTON B. MORTON,

Assistant Secretary (For the Secretary of State).

Senator JOHNSTON. Mr. Chairman, I do not think it needs a motion, but I think it will be up to the chairman to arrange with the Secretary of State for a time that will be suitable to him and the subcommittee. The CHAIRMAN. That is a good suggestion. I want to arrange it for a time when Senator Bricker can be present.

Senator BRICKER. I will meet your convenience, Mr. Chairman, on this matter. I have talked to Secretary Dulles about this and also talked to the Attorney General and talked to other members of the administration and there seems to be a common desire and purpose to work out something that will bring about the end that we desire in this amendment.

I appreciate the courtesy of the chairman, and I will be here at the time you set.

Senator JOHNSTON. Mr. Chairman, may I suggest one other thing? Of course I am one of the coauthors of this particular legislation and I think it is needed, myself, but I think we ought to get all the light on the subject that we possibly can. For that reason I think that you as chairman should take it up with the Justice Department and have them have a representative here when Secretary Dulles appears. They can have whomever they see fit, but he should be some good constitutional lawyer because this is a constitutional amendment. Senator BRICKER. I talked to both the Department of Justice and Mr. Dulles about the matter. I talked to Mr. Dulles before filing the amendment and he said to get it in and they would give proper study to it.

Senator JOHNSTON. The reason I made that statement is that I have not had time to study the wording of this constitutional amendment. I think we ought to be very careful in that field.

Senator BRICKER. There is no doubt about that. The representatives of the American bar and ourselves are convinced as well as the staff. They have been constantly at work on it the last year or two.

In the statement, Mr. Chairman, Mr. Dulles did not exaggerate the danger inherent in an unlimited treatymaking power. From the decision of the Supreme Court in Ware v. Hylton (3 Dall. 199) in 1796 to the present time, the treatymaking power has been a persistent threat to the liberties of the American people.

Last year, the State and Justice Departments in opposition to any treaty clause amendment, cited to this committee with approval the case of Ware v. Hylton. Senate Joint Resolution 1 would preclude the result reached in that case. Ware v. Hylton is a good place to join the issue.

These were the facts in Ware v. Hylton. In 1774, Hylton & Co. gave a promissory note to two British subjects. To help defray the cost of the Revolutionary War, the State of Virginia passed a law providing that debts to British subjects would be discharged by payment to the State.

In 1780, Hylton & Co. paid $3,000 of its debt to Virginia. More than 3 years after this partial payment, the Treaty of Peace with Great Britain was made. Article IV of the treaty provided:

It is agreed that creditors on either side shall meet with no lawful impediment to the recovery of the full value, in sterling money, of all bona fide debts heretofore contracted.

Ware, an assignee of the British creditor, sued Hylton & Co. for the full amount of the original debt. In the Supreme Court, the validity of the Virginia statute was not questioned. Nevertheless the Supreme Court held that article IV, having become the supreme law of the land, operated to revive that part of the debt which had been extinguished by valid payment to the State of Virginia. By requiring double payment of a debt satisfied prior to the making of the treaty, Hylton & Co. was deprived of property without due process of law, the fifth amendment to the contrary notwithstanding. Last year the Department of Justice asked this committee to prepetuate that doctrine (record of hearings on Senate Joint Resolution 130, p. 403).

To the extent that a treaty removes some State-created impediment to the collection of existing debts by aliens, it would be permitted by Senate Joint Resolution 1. That was not the situation in Ware v. Hylton. The American debtor was required to pay a second time a debt which had been legally paid prior to the making of the treaty. I think in that case, as I remember, John Marshall represented the debtor. John Marshall, of course, was the justice who rendered the opinion in Marbury v. Madison which made the laws of the Congress subject to the provisions of the Constitution. I think the staff has gone over that case pretty thoroughly.

Obviously, the negotiators of the Treaty of Peace with Great Britain did not intend any such harsh result. Since payments by Hylton and others to Virginia were to advance a national purpose, the probable expectation of the negotiators was that British creditors would be reimbursed by Congress.

Just as the negotiators of a treaty in 1783 could not foresee the judicial consequences of their language, the President and the Senate in 1953 can never be certain that a particular treaty will not deny or abridge some constitutional right of a citizen of this country. Perhaps the best modern-day example is the Genocide Convention. Since 1949, that treaty has been held up in the Senate Foreign Relations Committee. The Senate does not dare consider the merits of that convention, foreign policywise, until it is certain that nothing contained therein will prejudice the constitutional rights of American citizens.

The American Bar Association sees in the Genocide Convention a grave threat to freedom of speech, press, and the rights of persons accused of crimes. Proponents of the treaty deny that such dangers exist. Neither interpretation of the treaty is unreasonable. The Supreme Court has the final word, but it is constitutionally incapable of rendering an advisory opinion. No doubt the Senate could remove any danger to American rights by a series of reservations to the treaty. However, the International Court of Justice has held that substantial reservations to the Genocide Convention will nullify the effect of ratification. The Senate will never be able to vote intelligently on the Genocide Convention until such time as the supremacy of Constitution over treaties is firmly established, and that, of course, is the purpose of this amendment.

The Senate is confronted by no such dilemma in the legislative process. It has complete freedom of action in framing language for the protection of constitutional rights. If a law does deny or abridge some constitutional right, the Supreme Court will strike it down. Never in our history, however, has the Supreme Court held any provision of any treaty unconstitutional. The reason is that article VI, paragraph 2, provides that laws of the United States "shall be the supreme Law of the Land" only if made "in Pursuance" of the Constitution. Treaties, on the other hand, become the supreme law of the land merely by virtue of being made "under the authority of the United States," which is an entirely different thing.

This difference in language was noted in 1920 by the Supreme Court in Missouri v. Holland (252 U. S. 416). That case upheld the validity of legislation by Congress to implement the Migratory Bird Treaty of 1916-legislation which the Court assumed was unconstitutional in the absence of a treaty. Mr. Justice Holmes intimated that "under the authority of the United States" might mean nothing "more than the formal acts prescribed to make the convention."

Opponents of any treaty clause amendment say, however, that the President and the Senate should be trusted not to make any treaty which authorizes what the Constitution forbids. This argument reveals a shocking ignorance of constitutional history. The Bill of Rights was added to the Constitution because the people did not trust the President and the Congress with unlimited power. The President and the Senate, even assuming that they could foretell how a treaty will be construed by the courts, are deserving of no greater trust. The American people resent the argument that rights which they regard as God-given and inalienable can be alienated by the President and two-thirds of the Senate present and voting.

In one case, the President and Senate deliberately achieved by treaty a result which the Constitution expressly forbid. The Supreme Court in 1923 held that the 18th amendment prohibited the importation of intoxicating liquor under seal into the territorial waters of the United States, Cunard S. S. Co. v. Mellon (262 U. S. 100). To overcome that effect of the 18th amendment, President Coolidge negotiated in secret and the Senate in 1924 approved in secret, a treaty authorizing such importation on British ships. The validity of the treaty was challenged in one case which was dismissed on procedural grounds, and it was never further interpreted.

So far I have discussed the need for section 1 of the joint resolution. Section 4 places the same limitation on Executive agreements. The need for such limitation arises from the fact that the Supreme Court has held that Executive agreements, even those not approved by Congress, become the supreme law of the land. In United States v. Pink (315 U. S. 203 (1942)), the Court said:

A treaty is a "law of the land" under the supremacy clause *** of the Constitution. Such international compacts and agreements as the Litvinov assignment have a similar dignity (p. 230).

The Pink case involved the distribution of assets of the New York branch of a Russian insurance company. In 1918 Russia nationalized the business of insurance, but the State of New York refused to give the decree any extraterritorial effect. No one questioned New York's power to make that decision. In 1925, Pink, the New York super

intendent of insurance, took possession of the insurance company's assets. Claims of domestic creditors were paid in full. The New York Court of Appeals directed payment of the balance to foreign creditors.

This was the situation immediately before the Litvinov assignment. Foreign creditors were entitled to the protection of the fifth amendment. Both Russia and the United States were powerless to deprive them of that property. However, the Supreme Court held that an agreement between Franklin Roosevelt and Maxim Litvinov canceled out property rights otherwise protected by the fifth amendment and the public policy of the State of New York.

Chief Justice Stone, for himself and Mr. Justice Roberts, dissented in the Pink case. The Chief Justice assumed, however, that property rights of American and foreign creditors could be divested by treaty or by an Executive agreement approved by the Congress, although he was not willing to recognize such power in an assignment not approved by either House of Congress.

Iron Curtain countries would no doubt welcome a new RooseveltLitvinov agreement to make their confiscatory decrees effective in the United States, private-property rights to the contrary notwithstanding.

Section 4 of Senate Joint Resolution 1 would also prevent Executive agreements of the type made at Yalta. That need requires no elaboration here. The President has spoken on that at a recent date.

Section 3 of Senate Joint Resolution 1 would make treaties nonself-executing in their effect on domestic law. At times, it is humanly impossible for a Senator to know whether or not and to what extent a treaty may supersede Federal and State laws. In 1833, for example, the Supreme Court held to be self-executing a treaty which it had held non-self-executing 4 years before. United States v. Percheman (7 Pet. 51 (U. S. 1833)); Foster v. Neilson (2 Pet. 253 (U. S. 1829)). The celebrated Fujii case in California is a more recent reminder that treaties may have far-reaching and unintended consequences as a result of the American Constitution's unique treaty supremacy clause. The intermediate California court held that the human rights provisions of the U. N. Charter, articles 55 and 56, were self-executing. Fujii v. California (217 P. (2d) 418, 218 P. (2d) 595 (1950)). The Supreme Court of California held they were not (242 P. (2d) 217 (1952)). The issue is still in doubt. If the Supreme Court of the United States should adopt the reasoning of the lower California court, thousands of Federal and State laws will be nullified. Of the 89 Senators who voted for the U. N. Charter in 1945, I doubt if one anticipated any such result.

That case was discussed at length, as the chairman and members of the committee will remember, on the floor of the Senate by former Senator Donnell of Missouri. I remember very definitely the discussion that took place on the floor that day.

Dr. Philip Jessup and like-minded international lawyers contend that the U. N. Charter can be modified by interpretative resolutions adopted by a majority vote of the General Assembly. The late General Counsel of the U. N., Abraham Feller, conceded that the U. N. Charter does not mean today what it meant in 1945. All treaties affecting domestic law must be made non-self-executing to avoid unin