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amendment, if adopted, would hardly stand in the way of this action. The fact that the first amendment, for example, states unequivocally that “Congress shall make no law *** abridging the freedom of speech * * *” has not prevented the passage of sedition acts. One may approve or disapprove of the fashion in which the Supreme Court has reinterpreted, generation by generation, the Constitution, but the fact seems clear that it is this dynamic process of perpetual reinvigoration which has given the Constitution its unique status among the constitutions of the world.
Consequently, I believe the Bricker amendment to be a semantic trap based upon a thoroughly unrealistic appraisal of the nature of political power in the United States, and it will not achieve its expected purpose. National power is shared by the President and the Congress, and a President who attempted to force through measures of an international character opposed by the Congress would, in realistic terms, be wasting his time. Conversely, no constitutional device such as this proposed aniendment could prevent action by a united front of the President and Congress.
Thus the real issues presented by the proposed Bricker amendment are not constitutional in character; they are rather in the psychological arena. From this vantage point, the amendment appears as a rallying point for neoisolationist opinion, and as a vehicle for discrediting the United Nations and various United Nations organizations. Much of the testimony which has been given before this committee may be adduced in evidence at this point, and should the Congress pass this proposal, the national campaign of discrediting the United Nations would be given a new lease on life. Organizations which violently oppose the United Nations have, of course, every right to express their views, but it would be highly regrettable if the United States Congress supplied them with a platform.
Indeed, enduring democratic international cooperation is far from realized, but it is an aspiration that should be encouraged by all men of good will. The great problems presented to us by the contemporary surge of Soviet nationalism serve to emphasize the point that eventually, if we are to attain a peaceful world for our children and grandchildren, we must transcend nationalism. Permanent peace, as Charles A. Beard once observed, will never be obtained by permanent war. Thus the hopes of building a peaceful world through the United Nations, while admittedly fragile, should be nourished by the United States Congress and the American people.
But the Bricker amendment seems directed toward the opposite goal. If one penetrates beneath the legal surface, he finds that this proposal would obtain from the Congress a repudiation of the principles of internationalism. If the Congress of the United States were to adopt this proposed amendment, a strong psychological roadblock would be placed in the way of further United States participation in international agencies, and the doctrines of isolationism, so disastrous in the 1930's, would be refurbished. As a student of politics, I am only too acutely aware of the limitations of the United Nations, but the reaction of Congress to these limitations should not take the form of curtailing internationalism, but should rather be directed toward strengthening the United Nations and making it a more effective agency for genuine international peace.
As an American citizen who is acutely aware of his good fortune in being born in the United States, I believe that we must recognize our obligation to aid our fellow men in nations less fortunately situated than are we, and I believe that the effective instruments for this exercise of responsibility must be created through the United Nations. I hope that the United States Congress will go on record in favor of our international responsibility by rejecting the proposed Bricker amendment.
Mr. SMITHEY. And a statement by Max Singer, on behalf of the Students for Democratic Action.
Senator KEFAUVER. It will be received and made a part of the record. (The statement is as follows:)
STATEMENT ON SENATE JOINT RESOLUTION 1 (BRICKER RESOLUTION) BY MAX
SINGER ON BEHALF OF STUDENTS FOR DEMOCRATIC ACTION
Students for Democratic Action believes that the Senate of the United Sttates should pass no proposal, such as Senate Joint Resolution 1 (the Bricker resolution), which would limit the treatymaking power of the Federal Government. In a world torn by tensions, rendered precarious by the threat of atomic war, and grown small in this jet age, the Federal Government must have the authority
to act speedily and effectively to "provide for the common defense (and) promote the general welfare" through cooperative action with other nations.
Proposals to change the basic document of our country, as it provides for the conduct of foreign relations, should be considered in the light of the basic principles which should determine our international policy.
Today the first such principle seems obvious; it is that we must have an international policy. We cannot rely upon the oceans or good luck to protect us from Communist aggression and we cannot abdicate from responsibilities in the world community.
Our international policy must be based upon the principles of cooperation, teamplay, and constructive leadership. Neither the solitary path nor the big stick has any place in our thinking today. We must not seek to command nor dominate; nor may we walk in “splendid isolation.”
To act in accord with these principles, and with good American horsesense, we must make the United Nations the bedrock upon which we build our international policy and eschew the shifting sands of unilateral action. We must work through the United Nations to protect ourselves from aggression and to promote peace and progress in the world.
The legal points at issue in consideration of Senate Joint Resolution 1 have been discussed at length in earlier testimony. Students for Democratic Action wishes to associate itself with the position taken by the representatives of the Association of the Bar of the City of New York in regard to the legal questions.
It is particularly appropriate for the Students for Democratic Action to testify on the Bricker amendment. The future of this country, as President Eisenhower said, lies with the youth of America. Of course, every action taken by our Government, as it becomes part of the "seamless web” of history, affects our future, but the resolution before the Senate now has particularly direct implications for future generations because it proposes not a current action but a limitation on future action. The Bricker amendment would bind the hands of future Senates, in which we, or other members of our generation, will sit. It expresses distrust in the democratic process as that process takes form in the historic institution now considering the proposal.
Certainly, there is no proof that all future treaties or executive agreements will be wise, although there are guaranties that they will not infringe upon the rights of American citizens. It is manifestly unwise to prevent all action just because some action may be improvident. This truism applies to the treaty process as well as to other actions; fear of future errors must not be allowed to arrest the vital flow of our efforts to protect our Nation and to promote peace and progress in the world.
Students for Democratic Actions feels that American policy should be based upon confidence and not upon fear. We must work to find wise solutions to international problems and not waste time forging shackles aimed at preventing mistakes. In the atomic age, sins of omission can be worse than sins of commission and often any policy is better than no policy. But Students for Democratic Action is confident that the choice is not between bad and worse; under the Constitution as written, the American people, through their elected representatives, can map a wise path through the frustrations, anxieties, and stern tasks that confront us.
The ostensible purpose of section 1 of Senate Joint Resolution 1, a purpose which no one would dispute, is the protection of the rights of American citizens as guaranteed in the Constitution. However, a reasonable reading of the Constitution and American legal history make it clear that the prohibition on the treaty power which is proposed is not necessary to achieve that purpose. Statements by the Supreme Court in the cases of Ware v. Hylton and Geofroy v. Riggs demonstrate that section 1 is patently redundant insofar as its effect is predictable.
Because it would prevent for all time (barring further constitutional amendment) any participation by this country in most cooperative decision-making processes, many examples of which--such as the wartime joint commandshave proven exceedingly useful in the past, the prohibition contained in section 2 is extremely improvident. The wise and practical proposal which the United States made on the atomic energy question, the Baruch plan, would have been unconstitutional if this section of the Bricker amendment had been in force. This plan, behind which the non-Soviet world united, was vetoed by Russia. If section 2 had been a part of our Constitution the plan could have been safely proposed by the U. S. S. R. and we would have had to veto it and thus isolate ourselves from the great majority of nations on this question.
The narcotics traffic, epidemics, radio waves, and migratory birds know no national borders. The attempts made to deal with these and many similar questions on an international basis would be hampered or prevented by the Bricker amendment.
The Constitution, through the system of checks and balances and the enumerated rights, safeguards American liberties from any possible threat from the treaty process. The real threat is that, because of constitutional restrictions, such as those proposed by Senator Bricker, the United States might be prevented from taking the timely and effective action necessary to meet a crisis of international policy. This real threat must be obviated by defeating the Bricker proposal.
We appreciate this opportunity you have given us to present the views of Students for Democratic Action.
Senator KEFAUVER. Mr. Eichelberger, the committee is very glad to have you present with us. Personally, the acting chairman of the subcommittee has known Mr. Eichelberger for many, many years, and knows of his interest in this matter, and in international affairs. He is a profound student of the subject, and we are glad to have you here, and would be glad to have your statement, Mr. Eichelberger.
STATEMENT OF CLARK EICHELBERGER, EXECUTIVE DIRECTOR,
AMERICAN ASSOCIATION FOR ADVANCEMENT OF THE UNITED NATIONS
Mr. EICHELBERGER. Thank you, Senator. I think you would probably prefer if I just hand you a copy of the statement, and let it go in the record, and I would prefer to make a few points orally, if it is all right with you.
Senator KEFAUVER. Mr. Eichelberger, first give your address and whom you represent, testifying here.
Mr. EICHELBERGER. Yes. Senator, I am appearing as an individual, although I identify myself as the executive director of the American Association for Advancement of the United Nations.
Senator KEFAUVER. And your address in New York?
Mr. EICHELBERGER. I am executive director of the American association for the United Nations.
Senator KEFAUVER. We will let this statement be printed in the record at this point, and then you may proceed. Do you want it treated as read, or do you want to read it?
Mr. EICHELBERGER. No, I would prefer that I highlight a few points.
Senator KEFAUVER. The statement will be treated as read at this point, and following the printing of the statement in the record we will have the points that you highlight and any colloquy.
Mr. EICHELBERGER. Mr. Chairman, my name is Clark M. Eichelberger. I avail myself of that right of which every American should be proud—the right to appear before his elected representatives and express himself on important issues. I appear as an individual. I identify myself as executive director of the American Association for the United Nations.
I should like to make it clear in the beginning that in opposing Senate Joint Resolution 1, I am not indicating any disrespect, or lack of admiration, for many Senators who signed the resolution, some not with the intention that their signatures indicate final support but because they believe that the resolution raises an important constitutional issue which should be debated by the people and by Congress. Citizens of distinction have appeared before you on both sides of this debate. I want to contribute my testimony to this discussion.
I am not a lawyer. However, eminent legal authorities and members of the American Bar Association have covered the technical questions thoroughly. I am much impressed with the printed testimony of Dana Backus and Theodore Pearson of the Association of the Bar of the City of New York. The testimony of Jacob Lashley and Harrison Tweed would seem to indicate that a considerable portion of the lawyers of this country are opposed to the resolution.
I believe that I am sufficiently familiar with American foreign relations to see the implications of Senate Joint Resolution 1, not only on the capacity of the President and the Senate to protect American interests, but its chilling effect upon the effort of the nations to organize permanent peace.
I start with the following premise: All of us are concerned, first and foremost, with the security of the United States of America, and in the second place with the development of a world order in which war will be impossible. Indeed, these two objectives cannot be disassociated, for in a world as highly integrated as ours, the security of the United States cannot finally be guaranteed without the abolition of war and the substitution of law in its place through the world.
I should like to base my opposition to Senate Joint Resolution 1 on the fact that it is inimical to the above-stated objectives, and to the interests of the United States; and inimical to the development of the United Nations which is essential to the interests of the United States.
I shall confine myself primarily to articles 2, 3, and 4 of Senate Joint Resolution 1. I shall not dwell long on section 1, because it seems to be quite unnecessary. I do not believe that the President of the United States would submit to the Senate a treaty which violated the American Constitution; nor would the Senate ratify such a treaty; nor would the Supreme Court uphold such a treaty.
Making it impossible for the President to negotiate executive agreements without submitting these agreements to the treatymaking process, and restricting the authority of the Senate to ratify treaties, would render the President and the Senate less able to protect the interests of the United States.
Our forefathers wanted flexibility of action. Certainly, such flexibility is even more necessary in the complex age in which we live. Today, the Executive must be able to take quick and firm decisions, and the Senate must be able to ratify as quickly as possible treaties to safeguard American interests. It does not seem possible to formulate legislation or a constitutional amendment which can limit the right of the President to negotiate executive agreements without seriously compromising the authority of the President to conduct the foreign relations of the United States with which he is charged in the Constitution.
There are, of course, checks upon the President in negotiating executive agreements. One check exists morally, in the responsibility of the President to the people. Checks exist practically in the authority vested in Congress to pass or reject appropriations and the needed legislation to implement such executive agreements. But to subject executive agreements to the limitations on the treatymaking powers imposed by Senate Joint Resolution 1 would seem to render the
President impotent to protect the interests of this country in a dan
The course of American history would have been very different indeed had the executive authority been curbed as is now suggested. The United States might not have taken Hawaii into its great family. The President could not have traded the overage destroyers for the right to build strategic bases in the Western Hemisphere-destroyers that were vital to the defense of the free world, and bases which are vital to this country's security. The ratification of the Atlantic pact by the Senate was followed, as article 3 of the treaty contemplates, by certain necessary executive agreements to make it possible for General Eisenhower to proceed with the task in hand. Had such successive agreement been submitted to the treatymaking power we might be a long way behind on the road to European unity.
It seemed to a number of witnesses before you that section 3 of Senate Joint Resolution 1 would place limitations on the treatymaking powers which are open to similar objections. What, in effect, is being proposed is that a treaty which affects domestic law must not only be negotiated by the President and ratified by two-thirds of the Senators voting, but it must then be approved by a majority vote of both Houses of Congress. There have been times when Americans have been pretty impatient with the way in which the Senate has failed to use its treatymaking powers. It has even been proposed that treaties be ratified by a majority vote of both Houses of Congress rather than a two-thirds vote of the Senate. Now it is proposed that certain treaties be ratified both ways.
In the Constitutional Convention, according to the testimony last year of Prof. Zechariah Chafee, Gouverneur Morris moved that no treaty should be binding on the United States “which is not ratified by a law”; but during the discussion the practical disadvantages of such a requirement were stressed and Morris' motion was voted down, 8 to 1.
There will be times, as contemplated by our forefathers, when the United States will wish for reciprocal advantages to ratify treaties that will supersede domestic law. If such treaty had to have the approval of both Houses of Congress, sectional interests and advantages could be invoked which might interminably delay, or eventually defeat, a treaty which was important to the general welfare. This was recognized by our wise forefathers in the Continental Congress 166 years ago.
However, the Senate has adequate means at its command to protect the American people from treaties it believes might unduly affect domestic law. The Senate may reject. It may make reservations. It may amend. And it may declare that the treaty is not self-executing.
References have been made to the proposed Human Rights Covenants now being drafted by the United Nations Human Rights Commission. Three safeguards are being incorporated at the suggestion of the Government of the United States, which would prevent the covenants from overriding domestic law. It is stated in the proposed draft that the nations in agreeing to them do not abrogate liberties guaranteed them by their own constitutions. It is further proposed that the covenants contain a statement that they are not to be selfexecuting. And finally, the United States has proposed the incorporation of a Federal-State clause.