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Mr. SMITHEY. After the 17th, I think that is the date you set, Senator.

The CHAIRMAN. Then the reporter will have copies ready to give to every member of the subcommittee to take that up a week later, the following Monday.

Mr. SMITHEY. Very well, Senator.

The CHAIRMAN. We want to get action on this the Monday after that.

The committee is recessed, subject to the call of the Chair.

(Whereupon, at 10:45 a. m., the committee was recessed, subject to the call of the chairman.)


MONDAY, MARCH 16, 1953


Washington, D. C. The subcommittee met, pursuant to call, at 2 p. m., in room 424, Senate Office Building, Senator William Langer (chairman) presiding.

Present: Senators Langer (presiding), Dirksen, and Kefauver.
Present also: Senator Symington.
Present also: Wayne H. Smithey, subcommittee counsel.
The CHAIRMAN. The meeting will come to order.
We will call the first witness.
Mr. SMITHEY. Mr. Harrison Tweed.


The CHAIRMAN. You may proceed. Go right ahead.

Mr. TWEED. I am a citizen of the United States, a member of the New York bar, and of the firm of Milbank, Tweed, Hope & Hadley, 15 Broad Street. I am also president of the American Law Institute, and sit as its representative in the house of delegates of the American Bar Association. I was a member of last year's New York State Bar Association committee on amendments to the Federal Constitution, of which William D. Mitchell was chairman and John W. Davis a member. It reported against the Bricker amendment. However, despite all this recital, I am here as an individual and not in any representative capacity.

In considering Senate Joint Resolution 1, what bothers me is the difficulties which it will create in a broad way in the conduct of foreign relations. I think it is the larger aspects, rather than the technical details, which might be called the minutiae, that have been raised here and there, for and against.

For example, the provisions of section 2, as I read them, would prevent the United States from joining in any plans of international inspection.

The CHAIRMAN. You are referring to the atom bomb, now, are you?

Mr. TWEED. It would prevent the atomic-bomb inspection plan, something like the Baruch plan, and it may very well be that something like the Baruch plan for international inspection is the only thing that is going to save us from another war or worse.

Then section 4 seems to require both prior and subsequent congressional approval of every agreement made by the President and

presumably by anyone acting under him in the field of foreign affairs. I do not pretend to be an expert in Government affairs. I have never worked for the Government, but I have seen enough of large corporations to know that you have to leave discretion in the executive head of any enterprise. You cannot tie his hands. It is one thing to have checks and balances, but quite another thing to hamstring the head who is to be the leader. To write into the Constitution a provision requiring this double congressional approval of everything the Executive does is certainly to hamstring him.

It does not seem to me that there is any use to change the Constitution because of a fear of things that have not happened and that in all probability never will happen. Timidity is no virtue, nor fear a good guide.

No amendment is needed, as far as I can see, for it is clearly the law of the land that Congress may amend or repeal a treaty and set aside an executive agreement so far as domestic effect is concerned. So there is complete protection in the Congress to prevent the sort of thing which the Bricker amendment and its successors are intended to accomplish.

This resolution and its predecessors do not have the support of all or anything like all the members of the bar. Many individual lawyers and judges are opposed to it. I ran into three Federal court of appeals judges in one day, all of whom were definitely against it. Several bar association committees have studied the general subject and reported against such an amendment.

There is substantial opposition even within the ranks of the American Bar Association. The section of international and comparative law submitted a report to the house of delegates in February, a copy of which has been filed with this committee, which concludes that while Senate Joint Resolution 1 is an improvement over Senate Joint Resolution 130 and its predecessors, it does not meet the fundamental objections to the general line of procedure.

It seems to me that the whole question is one which requires a careful and considered approach lest in a panic of fear we so restrict the executive as to prevent our effective participation in plans for world peace. How are we going to lead the way with a hobbled leader?

The congressional provisions dealing with the treaty-making power have served us well for a long time, and there is no reason why we should be in any hurry to change them. On the contrary, what we need is confidence in our Constitution and in the elected representatives in the White House and the Senate.

The CHAIRMAN. Any questions, Mr. Smithey?

Mr. SMITHEY. Mr. Tweed, you have stated that you were a member of the committee on amendments to the Federal Constitution of the New York State Bar Association, is that correct?

Mr. TWEED. Yes, sir. I called it last year's committee because, as far as I know, that committee has not been reconstituted or reappointed under the new president.

Mr SMITHEY. In that report-I have what is here purported to be a copy of that report. Would you care to examine it?

Mr. TWEED. No. I am sure it is.

Mr. SMITHEY. There is a statement relating to the Federal-State clause, with which you are probably familiar. Earlier in the hear

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ings there was some dispute as to just how effective this Federal State clause was in the covenant on human rights. At the end of this report there is an asterisk and at the foot of the page it indicates that you were not in entire agreement with certain of the conclusions reached. It did not state there, though, that you were not in accord with the conclusion reached on page 9 with respect to the FederalState clause in the covenant on human rights, and I want at this time to ask you whether you do concur in that statement, or not?

Mr. TWEED. I had better make sure that I know just what statement you refer to.

Mr. SMITHEY. Suppose I read it into the record at this time, Senator, if that is agreeable to you.


Mr. SMITHEY. Under topic 2, "The Covenant on Human Rights," the following statement appears, about the third paragraph down:

In any view, becoming a party of the covenant would make us a target for charges and complaints by nations which are looking for a chance to make trouble for United States.

These difficulties cannot be overcome by inserting in the covenant any clause applicable to federal states such as has been proposed by our State Department. That clause is as follows:

Then it states the clause. It goes on to say:

If such a treaty as the covenant on human rights is within the treaty making power, then under our Constitution and the decisions of our Supreme Court the effect of our becoming a party to the covenant would be to give the Congress of the United States full power to enact legislation effective within the States to put the covenant into effect. That obviously would be accomplished in accordance with the constitutional processes of the United States. It would be a result consistent with our Constitution, as already determined in Missouri v. Holland. Consequently Congress would in acccordance with our constitutional processes, have full power, and subdivision (b) dealing with favorable recommendations to the States would be inoperative. If we want to put a clause in the covenant on this subject, it would have to go further and provide that the Federal Government assumes no obligation to enact legislation which it could not constitutionally enact, in the absence of the treaty. This would relieve the Federal Government from an obligation to enact Federal legislation, but even then it might be held that under the rule in Missouri v. Holland, Congress would gain power to fully implement the covenant although under no international obligation to do so.

Do you agree with that statement, sir?

Mr. TWEED. I am afraid I am going to have to say I do not either agree or disagree. I did not then as a member of the committee study the covenant on human rights to the extent that some of the others did. As you will se on page 18 of this report, I said I do not agree with conclusion No. 2, which was to the effect that the form of the covenant on human rights should be altered, first because I do not think it is within our jurisdiction. meaning the jurisdiction of the committee, and, second, because I think that the present status of the covenant on human rights is too indefinite and inconclusive to warrant the flat position that it should take the form of recommendations only. I would rather postpone my judgment and the judgment of the committee until the covenant is in final form for submission to the Senate.

I think that is still my frame of mind. I do not think the covenant has made very much progress in recent months, and I personally believe that what you do with the covenant and what you do in defending the Constitution are two completely separate things.

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