has operated with success for over 160 years, what new facts have arisen which ought to lead us to throw overboard their reasons and their plan? All the constitutional amendments since the Bill of Rights were adopted to remedy evils which had actually happened. The backers of this proposal deal only in hypothetical dangers. They do not point to a single American treaty that was ever ratified, and say, "This treaty is so bad that it shows the urgent need for changing the Constitution." They give fears, not facts.

Even if we assume that some future treaty negotiated by delegates from the United States might be bad, we do not need any constitutional amendment to protect us from it. Future treaties may have novel features which will conceivably present new dangers, but the Constitution gives us abundant safeguards against dangers in treaties, whether old or new.

In the first place, there is the necessity of ratification by the Senate, for which the Philadelphia Convention planned so carefully. If a treaty is truly bad, past experience indicates either that the President would not let it be signed, or that at least 33 Senators would vote against it. The safeguards set up in Philadelphia against unwise treaties are there as much as they ever were.

However, let us suppose that a bad treaty is signed and ratified by the Senate, contrary to all past experience. Then it does not have to remain "the law of the land" forever. The moment that Congress decides that a treaty is producing evil results, a majority of both Houses can pass an act ending the internal effect of this treaty. That is exactly what was done in the Chinese Exclusion case and it can be done again whenever the need arises. No doubt, such a repudiation of a treaty is a breach of our good faith, but so is the failure to make treaties effective at all internally, which is rendered easy by the suggested amendment. The existing remedy has the great advantage of being applied only to an occasional treaty after it has been definitely condemned as bad. The remedy in the proposed amendment would interfere with the observance of a great many treaties, whether good or bad.

CONCLUSION

The essence of the proposed constitutional amendment, especially section 3, is that it makes it easier for a State, or even a private citizen, to nullify one of the most important functions of the National Government. Therefore, it is highly appropriate to quote against this proposal the statement made by James Madison toward the end of his life on the attempted nullification by a State of the tariff laws of the United States:

"A political system which does not contain an effective provision for a peaceable decision of all controversies arising within itself, would be a government in name only. Such a provision is obviously essential; and it is equally obvious that it cannot be either peaceable or effective by making every part [of the nations] an authoritative empire. The final appeal in such cases must be to the authority of the whole, not to that of the parts separately and independently. It was this view which dictated the [supremacy] clause."

The framers of the Constitution wanted us to be able to conduct our foreign affairs like a great nation. They gave us a framework for treaties which combined flexibility with safeguards. They believed this would take care of changing needs, and everything that has happened so far has proved them wise. In particular, they trusted the Senate and gave it a decisive share in foreign affairs. They believed the Senators, after deliberating in secret, would have the wisdom and common sense to discriminate between good treaties and bad treaties. They knew that the issue as to what is good and what is bad would vary as new problems arose, but that made no difference. They trusted you Senators to solve those problems. For the Senate to approve this amendment would mean that the Senate does not trust itself.

Today when our country is taking on heavier responsibilities in foreign affairs than ever before is not the time for the Senate to throw away a big slice of the power to make effective agreements with other nations, which the framers of the Constitution confidently placed in your hands.

Mr. CHAFEE. My name is Zechariah Chafee, Jr., that comes down. to me from a long line of Rhode Island ancestors. I am a member of the Rhode Island bar and for 35 years I have been teaching law at Harvard Law School. Now I am a university professor at Harvard. I taught all sorts of technical subjects, and I have worked with Senator Hébert in drafting the Federal Interpleader Act of 1936.

Senator FERGUSON. What course did you teach?

Mr. CHAFEE. Teaching equity and trade-marks and negotiable instruments, chiefly.

My study of this subject of treaties began 5 years ago when I was a member for the United States of the United Nations Subcommission on Freedom of Information and of the Press, and afterward I was a delegate, one of the delegates from the United States, to the United Nations Freedom of Information Convention at Geneva with Senator Benton as our chairman.

I do not want to say much about those United Nations matters, they have been the chief reason urged today in favor of this amendment. I regard them as irrelevant, but I have listened to some of the hostility which has been directed against these measures, and I would like to tell you about a few of the men who took part in drafting what has been condemned today.

The free-speech clause in the Covenant of Human Rights was drafted in part by the editor of the Providence Journal, the editor of the Christian Science Monitor, the president of the American Newspaper Guild, Mrs. Oveta Culp Hobby, publisher of the Houston Post, and, in part, by a Dutchman, Goedhart. He was the editor of a newspaper in Holland when the Germans came in. He was driven out of his job, he started an underground newspaper and ran it until he had to flee for his life. Seven of his associates on that newspaper were captured by the Nazis and shot.

Those are some of the people who are accused of drafting a blueprint for tyranny.

I admit that opinions can differ, of course they can. We may not have done the right kind of job, but we did our best for freedom. We are people sincerely devoted to freedom. The draft International Court Treaty was prepared by a commission of which the chairman was one of the most distinguished lawyers in Washington, George Maurice Morris, a former president of the American Bar Association. Senator FERGUSON. Dr. Chafee, do you think that that treaty or the compact that was proposed in the United Nations on the freedom of the press in any way conflicted with our constitutional provision on freedom of the press?

Mr. CHAFEE. No, I do not, Senator Ferguson.

Senator FERGUSON. You do not think that there is a limitation? There are some people who contend that it authorizes the Government to limit freedom of speech.

Mr. CHAFEE. No, I think not.

Senator FERGUSON. But you have heard that people do contend that?

Mr. CHAFEE. Opinions will differ, but I regard those as perfectly irrelevant. What is obvious from the hostility that has been expressed today toward those various agreements is that you do not need a constitutional amendment to defeat them. They are not going to get a third of the Senate much less two-thirds. Practically everything that has been said about these United Nations agreements this morning are arguments against ratification, and they are perfectly proper arguments to consider, and it seems to me that they probably will defeat ratification.

You do not need a constitutional amendment.

The reason I am against this amendment has nothing to do with my former services with the United Nations. If I have a direct interest it is because I am chairman of the board of directors of Builders Iron Foundry, a manufacturing corporation in Providence with foreign connections, and we hope to extend those connections, and it is important for us that our agents shall be able to do business abroad and live there and so on.

The most important thing about this amendment, the outstanding fact to have in mind is that if adopted it will weaken the effectiveness of treaties that have nothing to do with the United Nations and nothing to do with human rights. Treaties of commerce, civil aviation, ownership and inheritance of land abroad, carry on business and professions abroad, freedom from discrimination and foreign taxes, protection of pecuniary rights and personal safety of foreigners in our courts and of Americans in foreign courts and many other familiar subjects of international agreements.

Senator FERGUSON. Would you take one or two of those and give us examples on the record as to how it will affect them?

Mr. CHAFEE. Let us take a treaty which was made with Italy after the end of hostilities and ratified by the Senate, made in 1948 and ratified in 1949, a treaty of commerce and friendship with Italy. Article 1 entitles the nationals of either party to engage in commerce, manufacturing, processing, financial, scientific, educational, religious, philanthropic, and professional activities except the practice of law, to own or rent land and buildings for these different purposes and choose their own employees.

That means we can do it in Italy, they can do it in the United States. An American doctor can practice in Rome, and it is very nice to find one, but in return in order to get that privilege we give the Italian doctor the chance to practice here.

Senator FERGUSON. In other words, citizenship is not a test and cannot be made a test?

Mr. CHAFEE. Not with respect to the citizens of the country with which you make the treaty.

Senator FERGUSON. That is what I mean. For instance, an Italian doctor can come to Michigan and practice medicine and does not have to become a citizen of the United States?

Mr. CHAFEE. And, of course, he would have to pass whatever examination is required.

Senator FERGUSON. I understand that he would have to pass the test, but if citizenship was one of the tests, then he could not be required to be a citizen, is that correct?

Mr. CHAFEE. Yes. If a Michigan State law says only American citizens can practice medicine, that law would immediately become invalid.

Senator FERGUSON. It would become invalid because of the treaty? Mr. CHAFEE. Article 2 is very important, too, for American businessmen. It entitles American corporations in Italy to exercise all these same privileges on the same favorable terms as Italian corporations. In return Italian corporations are entitled to do business in the United States upon terms no less favorable than those upon which such rights and privileges are or may be accorded in a State to corporations created or organized in other States of the United States.

Senator FERGUSON. In other words, we have to recognize-take my own State, the State of Michigan has to recognize an Italian corporation on the same basis as it does a Delaware corporation?

Mr. CHAFEE. That is it. And in return the American businessman has the opportunity to organize a corporation or carry his corporation with him over to Italy and do business there. The chances are, of course, that there are many more Americans doing business abroad than there are foreigners doing business in this country. The flow is outward.

In other words, to get something we have to give something, and the advantage, the balance of trade, is usually our way, I think.

Senator FERGUSON. You think that the new treaty or this new constitutional amendment would change those?

Mr. CHAFEE. Very much, because it would require, this Italian treaty runs on for pages and pages. I would like to speak particularly of section 3, which seems to me the part of the proposal which is likely to be most active. Just speaking of the treaty part.

I hate to disappoint you, but I really do not know much about executive agreements, and I would like to confine myself to treaties. Senator FERGUSON. All right.

Mr. CHAFEE. Section 3 would require an act of Congress to make this treaty enforceable in this country. Of course, you know that the treaty has two steps in being binding, it is binding on us as a nation only as soon as it is made and two-thirds of the Senate ratify it.

The second step is to make it binding inside the United States so that it will be enforced in our courts even if the State legislation were to the contrary. If one of our States has a sort of hostile attitude toward foreigners and says that no foreigners shall practice this occupation or that occupation, that barrier would remain until Congress had passed an act implementing this treaty.

If you look at the treaty, sir, you will find that it is very long, and it would need a very complicated statute to implement it. Now under the Constitution you are saved all of that. As soon as two-thirds of the Senate ratifies that treaty, it immediately becomes law, and the Italians, if they want to, can take advantage of it, and we can take advantage of our privileges in Italy.

Senator FERGUSON. Do you think that today Congress could now pass a law saying that citizenship was a requirement for the practice of medicine and therefore it would repeal that particular clause in the treaty?

Mr. CHAFEE. Yes, after the treaty you could prevent the treaty from being any more the law of the land.

Senator FERGUSON. You say that we could pass a law and you say that any State could have the right?

Mr. CHAFEE. You could say that this treaty no longer operates. Senator FERGUSON. Yes.

Mr. CHAFEE. I ought to be a little careful in answering your question because you raise a point where the bar association proposal would raise special trouble because Congress without a treaty could not pass a law authorizing the practice of medicine in Michigan. Senator FERGUSON. That is right.

Mr. CHAFEE. Under the bar association proposal even if Congress passes a statute to carry out our treaty with Italy, that statute would be unconstitutional.

Senator FERGUSON. But the Bricker amendment?

Mr. CHAFEE. But the Bricker amendment would allow it but would require all the trouble of an act of Congress. That is the sort of agreement, an agreement allowing Canadian corporations to do business in the United States, and on the other hand American corporations doing business in Canada. Those things count an awful lot. Those are the things involved.

Senator FERGUSON. Before the Italian treaty was passed, could Congress say that citizenship could not be made a requirement for the practice of medicine in any State?

Mr. CHAFEE. Well, I do not know, Senator. I would be a little doubtful about it.

Senator FERGUSON. I was doubtful of it; I was trying to think of an express section in the Constitution.

Mr. CHAFEE. It is not foreign commerce. Of course, to some extent legislation implementing these treaties would be good under the foreign commerce clause but not every transaction a foreigner transacts is foreign commerce. For instance, a Greek running a restaurant in Baltimore is not engaged in foreign commerce.

Senator FERGUSON. Well, that all depends. You know the way they are construing the Constitution he may serve a sandwich on his way through, and by the time he lands in Pennsylvania

Mr. CHAFEE. Yes. I am not here, as I say, on behalf of the United Nations or World Federation, I am here for the Constitution of the United States.

Senator FERGUSON. We are glad to have you here.

Mr. CHAFEE. I would like to bring home to you gentlemen the tremendous value of what we have. If there is any magic in the word "fifty" with something or other over it, as Mr. Hatch, I think it was, this morning said, I would like to remind you of the 55 men who framed the Constitution, only about twice as many people as are in this room right now. They had before them all questions practically which have been raised about this amendment and they considered those questions, and they answered them in favor of what we have in the Constitution.

Senator FERGUSON. Now are we agreeing that since the Italian treaty your State or mine cannot pass a law making citizenship a requirement for a profession other than the law?

Mr. CHAFEE. Not quite that, sir. If there is such a statute, it would be void with respect to Italians.

Senator FERGUSON. That is what I mean.

Mr. CHAFEE. Unless we had a treaty with others but void as to Italians.

Senator FERGUSON. But if we have a favorable nation clause in the treaty, then it would apply to a man of the other country?

Mr. CHAFEE. Yes.

Senator FERGUSON. Do you think the people of the United States appreciate that the right of their legislators to legislate has been limited to say that a man has to be a United States citizen before he can practice medicine?

Mr. CHAFEE. I do not know whether they understand it or not. Senator FERGUSON. I am wondering whether they understand it. Mr. CHAFEE. In the old days the citizens were insisting that only citizens could own land, but we passed treaties in order for Americans