Executive agreements of major importance are now customarily made pursuant to congressional or treaty authorization, or depend on congressional action for their implementation.

But every day the President, directly or through his agents, makes minor agreements of some kind or description with other governments or officials. There are masses of agreements made, and changed, almost daily with relation to the development of foreign bases and disposition of our troops abroad. There are many agreements with other governments to impose restrictions upon trade with areas unfriendly to us. There are daily agreements regarding a host of matters. This resolution would subject this entire process to congressional prescription.

I know full well that the proponents of this resolution are not activated by a purpose to embarrass the President in such matters. But that is what the amendment would do. It would so detract from the authority of the office of the President of the United States that his capacity to deal currently with international affairs would be gravely impaired.

Executive agreements: It has long been recognized that there is an undefined, and probably undefinable, borderline between Executive agreements which may be made by the President alone and those that require validation by the Senate as treaties, or the Congress as laws. This has occasionally caused controversy between the executive and legislative branches of Government.

There is a similar undefined, and probably undefinable, borderline between international agreements which require two-thirds Senate concurrence, but no House concurrence, as in the case of treaties, and agreements which should have the majority concurrence of both Chambers of Congress. This has occasionally caused controversy between the Senate and the House.

The danger to the Nation, however, from agreements not submitted to the Senate as treaties, or to the Congress for legislative validation, cannot be great because, without either Senate or congressional action, these agreements cannot constitutionally become law of the land.

This is an area to be dealt with by friendly cooperation between the three departments of Government which are involved, rather than by attempts at constitutional definition, which are futile, or by the absorption, by one branch of Government, of responsibilities which are presently and properly shared.

In order to promote that friendly cooperation, I am authorized by the President to advise this committee, the Senate Foreign Relations Committee, and the House Foreign Affairs Committee, as follows:

It has long been recognized that difficulties exist in the determination as to which international agreements should be submitted to the Senate as treaties, which ones should be submitted to both Houses of the Congress, and which ones do not require any congressional approval.

Differences of opinion resulting from these difficulties have given rise in the past to disputes between the executive branch and the Congress concerning the handling of international agreements. It must be recognized that it would be extremely difficult, if not impossible, to fit all agreements into set categories. At times there may be disagreement as to the manner in which agreements are to be dealt with. While recognizing this, the Executive cannot surrender the freedom of action which is necessary for its operations in the foreign-affairs field. In the interest of orderly procedure, however, I feel that the Congress is entitled to know the considerations that enter into the determinations as to which procedures are sought to be followed. To that end, when there is any serious question

of this nature and the circumstances permit, the executive branch will consult with appropriate congressional leaders and committees in determining the most suitable way of handling international agreements as they arise.

Senate Joint Resolution 43: Senate Joint Resolution 43, which follows the language proposed by a committee of the American Bar Association, contains a further provision. This would require that no treaty shall be effective in any field in which Congress in the absence of a treaty cannot legislate. This would create a no-man's land in foreign affairs. It would require the concurrence of all 48 States to make effective such common treaties as treaties of friendship, commerce, and navigation, extradition, reciprocal inheritance taxation, migratory birds, collection of foreign debts, and status of foreign troops. In this field of foreign affairs our country would not speak with 1 voice but with 49. The primary objective of the framers of our Constitution in this respect would be defeated. Those remarks, I point out, refer only to Senate Joint Resolution 43, not Senate Joint Resolution 1.

A balancing of risks: I feel sure that the proponents of the resolutions do not intend to do other than to eliminate the risk of abuses. Their motives are, I know, of the highest. The trouble is that, when it comes to putting their desire into legal form, the result is greatly reduced capacity for national action in an area where it is of the utmost importance that our Nation should have power.

Of course, there can never be power without risk of its abuse. But our present constitutional processes have worked successfully for 160 years. Never during this period has any actual treaty produced the results which the proponents of the resolution fear. Whenever there has seemed to be danger of that, the people of the United States, the judiciary of the United States, the Senate of the United States, and the executive branch of the United States have, in their respective spheres, moved to repel that danger. What has happened in recent months, including the exertions of the proponents of the resolution, demonstrates that the resolution is unnecessary. The trend they feared has been checked.

In this connection, a special tribute is due to Senator Bricker. His exertions to alert our Nation to possible danger will long be remembered. It can, however, be judged that the proponents of these resolutions have themselves shown that amendment of the Constitution is unnecessary.

The test of any constitution is not the way it reads but the way it works. George Washington in his Farewell Address pointed out that "experience is the surest standard by which to test the real tendency of the existing constitution of a country." He went on to warn against "changes, upon the credit of mere hypothesis, and opinion. That, he said, "exposes to perpetual change from the endless variety of hypothesis and opinion.

Our Constitution, as it is, has served us well in the field of foreign relations. There is no actual experience to demonstrate the need of the far-reaching changes here proposed. The fears are hypothetical. Therefore, I suggest that this constitutional area is one which deserves to be kept under constant observation and study, but that there is no present need for constitutional change.

The Department of State has prepared a more detailed memorandum dealing with the legal questions raised by these resolutions. I

submit this for the information of the committee and ask that it be included with its annexes, in the record of this hearing.

The CHAIRMAN. You may.

(The memorandum follows:)

STATEMENT BY DEPARTMENT OF STATE ON SENATE JOINT RESOLUTION 1 AND SENATE JOINT RESOLUTION 43

This statement is supplementary to that made orally by Secretary of State Dulles in opposition to Senate Joint Resolution 1 and Senate Joint Resolution 43.

BASIS OF OPPOSITION

The opposition of the Department is based upon the following:

1. The amendment of the Constitution as proposed would upset the constitutional balance of power between the executive and legislative branches and weaken the United States in its conduct of foreign affairs.

2. The disadvantages resulting from such amendment outweight any possible advantages.

3. The fears of the proponents that treaties changing the fundamental charac ter of our Government will be adopted are not justified.

SUMMARY OF PROPONENTS' ARGUMENTS

The arguments of the proponents of the resolutions may be summarized as follows:

1. The amendment is designed to prevent any treaty or executive agreement from undermining the sovereignty of the United States or the fundamental rights of its citizens.

2. A constitutional amendment is necessary to protect American rights and to preserve the American form of government against changes in its fundamental character which are alleged to be threatened by United Nations treaties now under negotiation, such as the covenant on human rights.

The advocates of the resolutions do not claim that any treaties heretofore adopted either offend our Constitution, or were unwise or improvident. Their argument is based rather upon the proposition that since the adoption of the United Nations Charter there has been a policy, promoted by the Department of State, of bringing into the field of international relations subject matter that has heretofore been deemed to be of domestic concern; that numerous multilateral treaties, under the so-called international bill of rights program, are now under negotiation, which if ratified by the United States would change the fundamental character of our Government, destroy the constitutional protections of our citizens, and destroy the traditional balance between State and Federal power.

The proposed amendments are designed to prevent this result, it being asserted that present constitutional methods do not afford sufficient protection.

This memorandum will point out that these fears are not justified; that the amendments proposed are unnecessary, and their adoption would not only upset the constitutional balance between the executive and Congress but would weaken the ability of the United States to deal effectively in the field of foreign affairs at a time when world conditions require more than ever before that our country be able to act quickly and effectively.

THE PROPOSED AMENDMENTS

We turn to the provisions of the resolutions.

Senate Joint Resolution 1, section 1

"A provision of a treaty which denies or abridges any right enumerated in this Constitution shall not be of any force or effect."

Senate Joint Resolution 43, section 1

"A provision of a treaty which conflicts with any provision of this Constitution shall not be of any force or effect. ***"

These proposals seem unobjectionable at first glance, though unnecessary. The treatymaking power is a constitutional power, and as such cannot possibly violate the Constitution.

Under the supremacy clause, "This Constitution. and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every State shall be bound thereby, anything in the constitution or laws of any State to the contrary notwithstanding" (Constitution, art. VI).

Under this clause, treaties, for their duration, take precedence over State laws, and this result was deemed by the framers of the Constitution to be essential if the United States was to be a sovereign nation and speak as such in its dealings with other nations.' But this, far from justifying the claim that treaties may violate the Constitution, only means that treaties under the Constitution are a part of the supreme law of he land.

THE INTERNAL EFFECT OF A TREATY CAN BE NULLIFIED BY AN ACT OF CONGRESS A claim that a treaty can violate the Constitution appears unsupportable in view of the fact that it is universally agreed that, as a matter of internal law, a treaty ranks no higher than an act of Congress, which obviously cannot violate the Constitution. It is well settled that a treaty is supplanted as law in the United States by a subsequent act of Congress intended to have that effect (Head Money Cases (112 U. S. 580); Chae Chan Ping v. United States (130 U. S. 581).)

The argument that a constitutional amendment is essential to preserve the American form of government, the inalienable rights of its citizens, and the sovereignty of the United States against abuse of the treaty power appears unsubstantial when it is realized that these dire and calamitous results, if ever realized, could be forthwith undone by a simple act of Congress and our constitutional rights thus immediately restored in all their vigor. When the internal effect of a treaty can be overcome by a statute, it seems clear that a treaty cannot contravene the Constitution, as no statute can.

The proponents point out that in Missouri v. Holland (252 U. S. 416), Justice Holmes speculates that the constitutional phrase "under the authority of the United States," as applying to treaties, differs from the provision "in pursuance of the Constitution," applying to acts of Congress, and therefore might mean nothing more than the formal acts prescribed to make the treaty. From this it has been argued that treaties might override the Constitution.

This argument overlooks: (1) the statement of Justice Holmes in the same case "We do not mean to imply that there are no qualifications to the treatymaking power," followed later by the statement "The treaty in question does not contravene any prohibitory words to be found in the Constitution"; and (2) that the words "under the authority of the United States" were used in the Constitution with respect to treaties, instead of the words "in pursuance of the Constitution" applying to acts of Congress, only to make clear that treaties made prior to the Constitution, such as the treaty of peace with Great Britain which ended the war for independence, would remain the supreme law of the land. The cases considering the question have uniformly held that a treaty may not violate the Constitution or authorize what the Constitution forbids. Typical of these are Doe v. Braden (16 How. 635); Geofroy v. Riggs (133 U. S. 258); and Asakura v. Seattle (265 U. S. 332).

It is urged that these authorities are not controlling, and that no treaty has ever been declared unconstitutional, the inference sought to be drawn being that a treaty may be supreme over the Constitution. The expressions by the Supreme Court on the subject were germane to the matter in issue and were not mere dicta, and they are uniform. That no treaty has ever been held unconstitutional may be ascribed to the fact that there has never been a treaty which has offended the Constitution and therefore no occasion for the Supreme Court so to declare. It is a tribute to the wisdom of the Executive and the vigilance of the Senate that in the 164 years of our history, no treaty offending the Constitution has been ratified. Rather than constituting evidence that treaties may override the Constitution, this record is persuasive evidence that there is little basis for belief that the treaty power will be abused in the future.

NO AMENDMENT NECESSARY

It is urged that since the question has been raised, and since no one advocates that treaties may violate the Constitution, no harm could result from an amend

1 See Annex A: Historical Background of the Treaty Clauses of the Constitution. 22 Farrand, The Records of the Federal Convention, 1911 edition, 417.

ment to that effect, thus settling the question for all time. The proponents argue that since those opposed to a constitutional amendment agree this is the law, no harm can result from so declaring.

The answer to this argument is that it is impossible to draw an amendment intended to be declaratory of the present law without running danger of changing the present law. In the first place, constitutional amendments are not adopted to declare existing law, but to change existing law, and the Supreme Court at some future time would no doubt be searching for a reason for the change. Idle acts are not to be presumed. In the second place, no matter how artfully the words are chosen, their ultimate legal effect or their interpretation cannot be anticipated with certainty.

For instance, is the amendment retroactive? Does it apply to existing treaties or only to future treaties? Would it be interpreted to mean that the rule of Missouri v. Holland was no longer the law; that the 10th amendment precludes the making or the enforcement of treaties on subjects with respect to which Congress cannot legislate in the absence of a treaty? Would the United States be unable, because of the retroactive effect of the amendment, to fulfill its existing treaty obligations?"

What are the "rights" enumerated in the Constitution which are not to be denied or abridged? Rights and powers are generally regarded as synonymous. The Constitution grants Congress the power to lay and collect taxes, duties, imposts, and excises; to regulate commerce, to fix the standard of weights and measures, to define and punish offenses against the law of nations, to declare war, to raise and support armies, to provide and maintain a navy. Is it intended that none of these rights may be abridged by treaty? If so, there could be no limitations of armaments or curbs on aggressive war by treaty. The existing United Nations Charter outlawing aggressive war is clearly a limitation to that extent on the power of Congress to declare war. Is that to be invalid under the amendment?

These suggest only a few of the difficult questions and uncertainties that would arise in the event this provision were to become part of the Constitution-under the belief that the law as it presently exists was merely being confirmed. The reasons advanced for this amendment seem insufficient to justify the grave risks involved in this amendment to our fundamental law.

II

SENATE JOINT RESOLUTION 1, SECTION 2

"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 Staes."

The purpose of this proposal appears, in general, to be to prohibit treaties which will give international organizations any authority within the United States. It is directed toward the type of multilateral treaties which have been negotiated or are in process of discussion, such as the covenants on human rights. The argument is made that if treaties of this character are ratified by the United States, it is conceivable that in the future the rights of United States citizens may be subjected to the authority of international tribunals or agencies, with the result that their rights under the Constitution may be lost or abridged, the sovereignty of our country imperiled, and the balance between the States and our Federal Government destroyed.

No such treaty has ever been ratified. Fears are expressed, however, that such may happen, so it is proposed that the Constitution be amended so as to absolutely prevent its happening.

The proposal rests upon the assumption that the presently existing controls, while adequate in the past to prevent such dire consequences, may not prove adequate in the future. The existing controls consist of a President sworn to uphold the Constitution, two-thirds of the Senate, who have taken similar oaths, and a Supreme Court. In addition, there is the further safeguard that Congress can at any time overcome the disastrous effect of such a treaty by enacting a statute.

3 See Annex B: Treaty Provisions Prevailing Over Inconsistent State Laws on Subjects on Which Treaties Were Necessary for That Purpose. 4 The Constitution, art. I, sec. 8.