The proposed amendment might throw doubt upon our existing extradition treaties, or the extent to which we can grant extradition. To date the power to enter such treaties has never been questioned.59 And it is well settled that, where the treaty so provides, an American citizen can be lawfully extradited to some other country to be tried in accordance with the laws of that country for an offense committed there.60 The host of agreements to which the United States has subscribed in the past in becoming a member of the many international organizations (such as the International Civil Aviation Organization, the International Telecommunications Union, the Universal Postal Union, the World Health Organization, the International Bank, and the International Fund, to mention but a few), all may require examination to ascertain the extent to which any such treaties or international agreements permit the international organization to supervise, control, or adjudicate a matter or matters "essentially within the domestic jurisdiction of the United States," let alone the rights of citizens of the United States. We can suppose that in a great measure this has been avoided by the several charters and agreements of the past. Nevertheless, some of the useful and necessary techniques adopted would seem to infringe the constitutional amendment proposed, such as the narcotic-drug protocol of 1948,61 under article 1 of which the World Health Organization may add, to the list of drugs capable of producing addiction, newly discovered drugs or compounds or snythetics; whereupon their manufacture and distribution is to be limited by the member states in accordance with the 1931 convention and 1946 protocol. Senator BRICKER. That is clearly interstate commerce and foreign commerce. Attorney General BROWNELL. It affects the rights of citizens of the United States. Senator BRICKER. It does not affect by this amendment interstate commerce. Attorney General BROWNELL. It affects it. I raised the question. which I deemed to be my obligation by reason of the position I hold, that we ought to study this language with respect to all of these important concords and protocols and treaties to which we are a party to see if it does not change the meaning of them or make it impossible to enter into similar agreements in the future. Senator WATKINS. Have you studied the language in Senate Joint Resolution 43 with respect to the same matters? Attorney General BROWNELL. Yes. Senator WATKINS. I think that draft avoids the matter you are talking about now. At least that is the intention. Attorney General BROWNELL. I was addressing myself primarily to Senate Joint Resolution 1. Senator WATKINS. Have you studied Senate Joint Resolution 43? Attorney General BROWNELL. Yes. Senator WATKINS. Do you think the same objection applies to the language in Senate Joint Resolution 43 as in Senate Joint Resolution 69 Holmes v. Jennison, 14 Pet. 540, 569-570, 586, 588 (1840); Matter of Metzger, 5 How. 176, 187-188 (1847); Factor v. Laubenheimer, 290 U. S. 276 (1933). 0 Neely v. Henkel (No. 1), 180 U. S. 109, 123 (1901); Charlton v. Kelly, 229 U. S. 447, 465-469 (1913): Valentine v. U. S. ex rel. Neidecker, 299 U. S. 5, 7 (1936). 61 T. I. A. S. 2308. 1 I am not admitting your objections are valid but I am wondering if you have the same objection to the language in Senate Joint Resolution 43. Attorney General BROWNELL. Will you read that particular language to which you have reference? Senator WATKINS. It is stated another way: A provision of a treaty which conflicts with any provision of this Constitution shall not be of any force or effect. A treaty shall become effective as internal law of the United States only through legislation which would be valid in the absence of treaty. Substitute agreements shall be subject to regulation of the Congress and to the limitations imposed on the treaty by this article. Attorney General BROWNELL. That of course is much more restrictive on the President and the Senate than Senate Joint Resolution 1. Senator WATKINS. It does not eliminate any rights we have as we understand the Constitution. Attorney General BROWNELL. I am glad of that comment. Mr. SMITHEY. Before you leave the matter of extradition, may we address ourselves to that for a moment? When you say the proposed amendment might throw doubt on existing extradition treaties or the extent to which we can grant extradition, do you doubt the United States has power through its Congress to pass a statute permitting extradition irrespective of treaties? Attorney General BROWNELL. My offhand reaction to that is that it would not do much good to do that unless we had the agreement of the other nations which could only be done by negotiations with the other nations. Mr. SMITHEY. The point is if there was a representation made to this country by another country to extradite an individual, it would be perfectly possible under our constitutional processes, irrespective of the treaty, would it not? Attorney General BROWNELL. In the mixed matter of legislative and executive powers, and I would hesitate to unbalance the traditional separation of powers of two branches in that way. I think it needs close study. Mr. SMITHEY. I might cite to you, sir, at that point an article by Mr. Finch, Mr. George Finch, of the American Bar Association, appearing in the American Bar Journal. The title of that article is, "The Treaty Clause Amendment, the Case for the Association," in which he addresses himself to that very point. Attorney General BROWNELL. Yes, sir. I can close this section 2 discussion very briefly, Mr. Chairman. I do so with the following: One cannot help but speculate upon what such a constitutional amendment would do to any efforts of the United States to achieve genuine international control in important fields relating to the peace and safety of the world. For example, the United States proposal of 1946, rejected by the Soviet Union, of an international agency for the control and development of atomic energy, included broad powers in the international agency for the management and ownership of all atomic activities potentially dangerous to world security, as well as power to control, inspect, and license all other atomic activities.62 See International Control of Atomic Energy, Growth of a Policy, State Department Publication 2702 (1946); Policy at the Crossroads, State Department Publication 3161 (1948). The system of international inspection, which lay at the heart of the plan, clearly would conflict with the proposed constitutional amend ment. The point need not be belabored by reciting other like problems that must one day be the subject of international solution. In their regard we can ill afford to immobilize the one great peacetime weapon this country possesses, namely, the treatymaking power. Senate Joint Resolution 1 provides: SEC. 3. A treaty shall become effective as internal law in the United States only through the enactment of appropriate legislation by the Congress. [On this subject, S. J. R es. 43 provides: "A treaty shall become effective as internal law in the United States only through legislation which would be valid in the absence of treaty."] The purpose of this provision is to prevent treaties, which are intended to be and capable of being self-executing, from becoming selfexecuting; and to require, in all cases, that a treaty cannot become effective as internal law in the United States except through the enactment of legislation by the Congress. Senate Joint Resolution 43, the American Bar Association proposal, would go even further and would prevent a treaty from becoming internal law except through legislation which Congress could validly enact under its powers in the absence of the treaty, thereby limiting the scope or subject matter of treaties to those matters which are within the enumerated legislative powers of the Congress. The solution, evolved by the Constitutional Convention of 1787, of placing treaty making in the President with the advice and consent of two-thirds of the Senators present, was the result of a great deal of thought, discussion, and compromise. John Jay, in No. 64 of The Federalist, and Alexander Hamilton in No. 75, have set forth the reasons for placing the treaty power in the President and two-thirds of the Senate. Hamilton described it is "one of the best digested and most unexceptionable parts" of the constitutional plan. Because the capacity and prestige of the Senate in treatymaking and treaty-law-making is under challenge by the present proposal for amendment, I would urge every Member of the Senate to review carefully these two essays by Jay and Hamilton, among others. I would call attention especially to the following paragraph from Jay's paper, which goes directly to the point proposed by this amendment: * Some are displeased * * because, as the treaties, when made, are to have the force of laws, they should be made only by men invested with legislative authority. These gentlemen seem not to consider that the judgments of our courts, and the commissions constitutionally given by our governor, are as valid and as binding on all persons whom they concern, as the laws passed by our legislature. All constitutional acts of power, whether in the executive or in the judicial department, have as much legal validity and obligation as if they proceeded from the legislature; and therefore, whatever name be given to the power of making treaties, or however obligatory they may be when made, certain it is, that the people may, with much propriety, commit the power to a distinct body from the legislature, the executive, or the judicial. It surely does not follow, that because they have given the power of making laws to the legislature, that therefore they should likewise give them the power to do every other act of sovereignty by which the citizens are to be bound and affected. Senator WATKINS. Could the Congress pass a law, not amending a treaty, but abrogating a treaty? 63 The Federalist, No. 64. Attorney General BROWNELL. As to its domestic affairs. Senator WATKINS. It is still within the powers of Congress? Senator WATKINS. If they have been able to do that in the past, why should they not be able to do it in the future? Attorney General BROWNELL. I think they should, and will. Senator WATKINS. That is, in effect, treaties shall become effective as internal law in the United States only through legislative action which would be valid in the absence of a treaty. That should not be against the Constitution. Attorney General BROWNELL. I think it does because it takes away from the Executive participation in the treaties. At the present time the Executive has the initiative. Senator WATKINS. He makes the negotiation and the treaty is there and it is a question of what effect it has on the domestic scene. Even if Congress should attempt to change it at all, he would still have the right to veto the legislation. He would have a part in the making of it. Senator BRICKER. Jay and Hamilton also opposed the Bill of Rights, did they not? Attorney General BROWNELL. They came around to it. Senator BRICKER. They had to, to have the Constitution adopted, but they opposed it, did they not? Attorney General BROWNELL. Yes. Senator DIRKSEN. Referring to the observation of Senator Watkins, Secretary Dulles suggested yesterday, if you will recall, that if a mistake is made in a treaty insofar as domestic effect is concerned, that Congress can always remedy that mistake by legislation. That is one viewpoint. The other viewpoint, as envisaged by the resolution pending here, is to prevent the mistake in the first instance by not giving it the effect of domestic law. Attorney General BROWNELL. Now, you gentlemen are good lawyers. I do not know. This treatymaking power is a matter of negotiation between governments. I think if you were sitting down to negotiate a contract in your private practice you would feel you were at a considerable disadvantage if you only had authority to cover certain points in the contract and the fellow on the other side had plenary power. That would be the effect, it seems to me, of the provision in Senate Joint Resolution 43 because it would take away from the Executive and the Federal Government the right to negotiate contracts covering all that subject matter that is reserved to the States in the 10th amendment. It is just as you said, the purely international, the mingled international and local matters must be in the Federal Government in order to make that power effective, and from time to time the subject matter which originally was local becomes international. Whenever you have a new invention like your radio, your television, your atomic power, certain things that heretofore were considered primarily local in their nature, by act of Congress and by act of the Executive are thereafter considered federal or international in their relations. Senator BRICKER. What other country has plenary powers in the matter of treatymaking over domestic law? Attorney General BROWNELL. I would say practically all of them, Senator, that do not have the federal system. Senator BRICKER. Does Canada? Attorney General BROWNELL. You don't find it in the countries where they have the federal system. But in nine-tenths, I would say, of the nations of the world they do have the plenary power. Senator BRICKER. That is the totalitarian concept but we have the federal system and so does Canada. Does Canada have the right to make international law effective domestically? Attorney General BROWNELL. I do not know about Canada. Senator BRICKER. Canada has the same system provided in the American Bar amendment. Attorney General BROWNELL. It would certainly be a very drastic change in our concept and I think would be most damaging to the power of our negotiators at the international bargaining table if we did not have the right to negotiate treaties and agreements in respect to all of these so-called reserve powers. Senator BRICKER. Neither one of these affect the international aspects or the relation of nation to nation. They only affect the application of treaty law to the domestic rights of citizens of this country. Attorney General BROWNELL. I go back to my quotation from Chief Justice Hughes who points out it is practically impossible to inflexibly draw that line, that there are so many matters of intermingled international and domestic importance which must be included in the treatymaking power in order to make effective any agreement which other nations will accept. However, that is a different point of view there again. I, myself, think that the point made by Jay is as valid now as it was in 1788. Nevertheless, because treaties were to have the force of laws, proposals were made to require concurrence of the House in the treatymaking process. These were submitted first at the Constitutional Convention, then at a number of the later State ratifying conventions, and still later on a number of occasions since the adoption of the Constitution. They have invariably been rejected or dropped. 66 65 The present proposal would require two steps before a treaty could have domestic effect, first, the approval of two-thirds of the Senate and, second, reconsideration by the Senate and approval by the House. This is unprecedented, anywhere. In a State Department memorandum, dated May 23, 1952, already made available to you, there is summarized the constitutional requirements of various other countries for giving effect to treaties as internal law. It is pointed out that no other country in the world is required by its constitution or constitutional practice to follow such a double procedure. Moreover, in the countries where participation by the legislature is required, such as the United Kingdom, the composition of the executive branch of the government is determined by the.legislative body. The government in power in those countries accordingly controls both 642 Farrand, Records of the Federal Convention, 392-394, 481, 495, 522-525, 527-529, 538 (proposal defeated 10 to 1), 540-541, 547-550. Pennsylvania. 2 Elliott's Debates 546: South Carolina, 4 Elliott's Debates 265-267. 280; Virginia, 3 Elliott's Debates 610; North Carolina, 4 Elliott's Debates 115, 119, 125, 131, 246. Some of this was mere discussi n, and none got beyond the stage of a recommendation to the First Congress. 08 See proposal of Virginia Assembly, growing out of congressional debate of the Jay Treaty with Great Britain (5 Annals of Congress 394, 400-401, 426-771), Acts of Virginia Assembly 1795, p. 55-no action taken on proposal; and see Proposed Amendments to the Constitution, H. Doc. 551, 70th Cong., 1st sess.. 120-122; also H. J. Res. 60, 79th Cong., 1st sess. (H. Rept. 139), passed by the House May 9, 1945, 91 Congressional Record 43674368. This last was a proposal to provide that treaties could be made by the President by and with the advice of both Houses of Congress, viz, a simple majority of both. |