Senator KEFAUVER. There are other kinds of agreements in that category, of course. The thing that disturbs me about this resolution, and that apparently disturbs you also, Mr. Lashley, we are here in this time when we all seek peace, and we know if we are going to have peace this Nation cannot insulate itself from the rest of the world or from other nations or the transactions that are taking place. That is the point of your argument, is it not? Mr. LASHLEY. I feel that way about it; yes, sir. Senator KEFAUVER. I would think in the effort to bring about some agreements that might give us a chance of having peace, if you asked anyone to list the 10 things we might have to agree upon, certainly these 5 would be rather impressive parts of any such program. You would have to have, first, I take it, some agreement about trading with other nations, like the reciprocal trade agreement program. We would also have to have some agreement about the control of atomic energy, atomic bombs. We also need, I think, some time to have some armaments agreement. Also, I think we would have to have some economic arrangements with other nations. As I read this proposed constitutional amendment, I think any 1 of those 4 or 5 matters would come within the language on page 2, lines 11, 12, and 13, or within section 2, but you could not even go into those matters because they are essentially within the domestic jurisdiction of the United States. Maybe some would think that you could make agreements with other nations in protecting atomic energy or reciprocal trade agreement programs; but I doubt, and I think a great question might be raised, as to whether you could make agreements in these 4 or 5 very important fields. So by taking this action, might we not be cutting ourselves off from the leadership that we now possess in making agreements in these vital fields and on these extremely important points that go to our possibility of having peace in the world? Mr. LASHLEY. That question would be raised, certainly. Senator KEFAUVER. You never intrude, Senator Dirksen. Senator DIRKSEN. Of course, I agree with my very distinguished friend here from Tennessee, because it seems to me that the language of section 2 is so clear that you are dealing with the rights of citizens of the United States within the United States enumerated in the Constitution or any other matter essentially within the domestic jurisdiction of the United States. That language, "essential jurisdiction," was taken from section 7 of article II of chapter I of the United Nations Charter. It is only that the International Court, it seems to me, has refused thus far to determine who is going to pass on what is essentially within the jurisdiction of a given country. Senator KEFAUVER. Mr. Lashley, it seems to me we would be put in the rather ludicrous position of presenting the Baruch proposal for atomic energy control, for instance, and our being very upset because it was not accepted, and we will present other proposals which will call for some system of international inspection by some board or some agency; and manifestly under this provision we could enter into no agreement like that. Is that not true? Mr. LASHLEY. I should think, Senator Kefauver, that an agreement which would require inspection by an internationally appointed group, of the arms and the atomic bomb supply within our country, would very possibly run athwart of the provision of section 2, which is: 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 * * *. That is not all the section, but it is enough to enable me to answer your question, I think, Senator Kefauver. I cannot see from here how such a board or tribunal of inspection could come to our country and do all the necessary things to make a satisfying inspection preparatory to report to the United Nations, without falling under the language "international organization to supervise, control, ***" I cannot myself see clearly how that could be done, but it is because I do not understand too well what all the implications from that language in section 2 might involve that I do not feel very competent to carry it on into future out workings. It seems to me there is very little that an international group appointed for international action could do without running afoul of those provisions. Senator KEFAUVER. I apologize for taking so much time, Mr. Chair man. Mr. Lashley, we then come down in this matter to two fundamental differences of opinion, I suppose, among our people. One is that because we are running into this time of stress, when we will have more conferences and more agreements, many of us feel that that is the time when we must be in the most fluid position possible to take advantage of situations as they come about that might lead us to better world conditions, and we should not thwart the power of the State Department, the President, and the treatymaking power of the Congress. The other side is because we are running into these conditions, we ought to insulate ourselves from the possibility of getting into them. Do you think that is a fair presentment of the arguments? Mr. LASHLEY. I think you have stated the first position correctly. You may not have included all that those who adhere to the second position would like to have included; but in substance, I think that is the issue. Senator KEFAUVER. Then do we not come down to this: The United States Senate has done a pretty good job throughout the years in meeting these problems. It has not made any great mistakes yet. Should we not at least give the Senate of the United States and this new administration, which you and I did not vote for but they are good people, an opportunity of seeing what they can do and of trying their mettle in the light of these new world conditions, before we change the basic working rule? Mr. LASHLEY. I believe that to be the safer and the better and the more constructive practice. Senator KEFAUVER. Thank you, Mr. Lashley. The CHAIRMAN. Mr. Symington? Senator SYMINGTON. I have been out of my field, but I have never been this far out with all you lawyers here discussing matters that are far above me. There are just a couple of points I would like to ask Mr. Lashley. I have never discussed this with him in detail. I very seldom have disagreed with him, and I am not sure that I do now. As I understand it, the idea of the American Constitution is that all powers not delegated to the Federal Government are reserved to the several States. I remember that much came up when I was a schoolboy, which is apparently unique as against a lot of other governments. I did read two columns by Arthur Krock, of the New York Times, which impressed me. He said the treatymaking powers take precedence over the Constitution; that in effect it would nullify the authority of judges in the States. I would like to ask you what your thoughts were on that, sir. Mr. LASHLEY. In any subject that is appropriate for an international agreement, Senator Symington, the National Government as a matter of right and as a means of going forward under our divided powers plan must of necessity take precedence over the State governments. Manifestly, we cannot have 49 States negotiating treaties with foreign powers. Always there comes Senator KEFAUVER. You said "49." Do you mean Hawaii? Senator KEFAUVER. Including Alaska, too? Mr. LASHLEY. Often there arises the question whether the subject is one appropriate for agreement with foreign powers, but where it is pursued and it is appropriate for the National Government to undertake an agreement with a foreign power, then article VI of the Constitution provides that that treaty, as all other laws of the Nation, shall be the supreme law of the land, meaning it shall be supreme over the law or constitution of any State. That does not mean, of course, that a treaty can-I think you said Mr. Krock used the expression "cut across the Constitution." Senator SYMINGTON. I would not want in any way to give his words verbatim. I do not want to quote him. I do want to say I got the impression from reading the article that some of the people he felt who were for this resolution believed that the idea of a treaty taking precedence over the laws of the country would mean in effect that the judges of the States had lost authority. I do not want in any way to quote him, because I have not read the column for some time. It was not his thought. It was the thought given him by people who were for the resolution. I would like to add, if I may, at this point, that what worried me. when I read that was that I think also-you correct me if I am wronghere we are in a land under a Constitution that has put a lot of emphasis on reserving powers to the States, and at the same time I have heard that we are the only large country in the world where treaties do take precedence over internal law. Mr. LASHLEY. No. I believe that the expression in that regardSenator Langer, if I am not right, you correct me-the expression in that regard is that other countries, those having the British system, for example, require legislative act in order to make a treaty effective as internal laws, and that ours does not and should be brought in harmony with these other governments in that regard. Senator SYMINGTON. That is what I was trying to say, but I did not say it properly. The CHAIRMAN. Federal governments. Mr. LASHLEY. Yes. I do not agree with that. In the first place, these other countries are differently constituted from ours. Our Executive is elected by the people. The State Department and the Executive negotiate treaties. In England, the Prime Minister negotiates treaties in the name of the Crown, but he is elected by the House of Parliament. In case he should negotiate a treaty which Parliament, who elected him, did not agree to, he would at once lose his position as leader in the House and his government would fall. That does not happen in our country. Our country has a vastly better system. At the point of negotiation and approval of treaties, we bring to bear a two-thirds majority of our upper House. That does not occur in any other country. This system was debated in the Constitutional Convention quite a good deal. Some wanted treaties to be negotiated by the legislative, some by the Executive, and they wound up by having them negotiated by the Executive and concurred in by this two-thirds majority of the upper House. It is a unique mingling of the legislative and the executive departments not found in any other country that I know about. It is not a good argument, in my humble judgment, to say that we ought to bring our procedure into parity with that which is said to exist in other countries and other systems that do not have as good a system as we have. In the first place, it is not quite comparable for the comparison is not perfect in view of the fact that our legislative department and our executive department are independently responsible only to the people and not to the Members of the House. So I am very firmly convinced that we can do all with our present protections that England or Canada or any other country can do with theirs, and we have better protection at the beginning than they have. Of course, if I may be pardoned for launching out on what seems to be another subject, there is a distinction between self-executing treaties and those which require action of the Congress to implement their execution. I think that the Genocide Convention falls within the latter class, and will require implementation. If it does not, the Senate can put a reservation on it that will make it do it. Self-executing treaties are the kind that we are used to. If this country engages with France that their nationals shall have the benefit of our laws of land ownership and devolution of estates provided our nationals in their country shall have the benefit of their laws on land ownership and devolution of estates, and if it requires an act of our Congress to make that applicable as internal law, we would be in a position of having to await the action of Congress on that subject, and there might be sectional resistance to an act of Congress to carry out such a program. The program would, of course, have to be held in abeyance in France. I use that as an illustration. That is not a true situation. A proposal now it to abolish the distinction between self-executing and nonself-executing treaties. I think that distinction ought not to be abolished, because the time lag in friendly reciprocal relationship arrangements such as the one I have just mentioned, the time lag for the se curing of legislation here might defeat the very purpose of the treaty itself, at least hold it in abeyance for a long time unnecessarily. But to make it necessary to pass legislation to validate all treaties as international law seems to me an additional hardship that would do us more damage than it would the countries that we might be entering treaty relationships with. Entering into a treaty relationship with a foreign country involves their knowledge of the law of our country. They have no hesitation in making these reciprocal arrangements now. If we fix it so they have to go through this long waiting period and the hazards of passing an implementing law through Congress, one would wonder why they would want to enter into such agreements with us. It would make it harder, or so it seems to me, to get agreements of that kind with them. Perhaps I went more afield than your question warranted. Senator SYMINGTON. That is very interesting. That is all the questions I have. The CHAIRMAN. Has the staff any questions to ask? Mr. SMITHEY. I think probably we ought to develop one phase of this matter which has been discussed but which I think would stand further development. Mr. Lashley, is it your contention that the matter of atomic energy is a matter essentially within the domestic jurisdiction of the United States? Mr. LASHLEY. I do not know enough about that to be dogmatic in the expression of an opinion on the subject. I have read a number of interpretations of good constitutional lawyers in whom I have confidence, who say that it would not be practicable for a supervisory board. to come to this country without doing some things in connection with the investigation of our facts on our supply of arms or atomic bombs that would not be in the field of domestic rights, rights of the people, as distinguished from rights of the country or the rights of States. Mr. SMITHEY. In the light of your answer, sir, can you tell me whether you think that under the present provisions of the charter to which Senator Dirksen has referred, that is, article II, section 7, the United Nations in entertaining the suggestion of the United States, the so-called Baruch proposal, has exceeded its authority, because it says in that section: Nothing contained in the present charter shall authorize the United States to intervene in matters which are essentially within the domestic jurisdiction of any State. Mr. LASHLEY. I doubt whether I could help the committee by an expression of view on that subject. I think I will not try. Mr. SMITHEY. You mentioned in the course of your statement that these was some question so far as treaties were concerned, as to constitutional limitations that might be imposed on treaties, and that the limitation may be whether the subject matter of the treaty is one appropriate for international agreement. Is that correct? Mr. LASHLEY. Yes, and we would have to bring in the United States Supreme Court to decide that in any given case, I suspect, in the last analysis. Mr. SMITHEY. In an analysis of what is appropriate for an international agreement, are you aware of the contention voiced many times before this committee in the hearings that the State Department |