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One suggestion was that you ought to have two-thirds of the Senate, and Hamilton said that would be a terrible barrier. The other suggestion was to let the House participate in the ratification, and then the other proposal was very much like these proposed amendments, not to let the treaty take effect until there had been an act of Congress.

Both the motions were thoroughly discussed, and they were voted down 8 to 1 and 10 to 1. Gouverneur Morris moved that no treaty should be binding which is not ratified by the law. That is practically the amendment before you, and that was voted down 8 to 1.

Then it was brought up that the House should participate in ratification, and that was voted down 10 to 1.

During the struggle over ratification one of the objections in the State convention was made that the House ought to take part, and there were some very careful arguments about it, they said secrecy was very important in making treaties; that it was very hard to have secrecy in such a large body as the House.

Senator FERGUSON. Professor, we have a vote at 4:30, and it is nearly that time. I do not know whether we will be able to hear you today.

Mr. CHAFEE. Could I say three sentences more? Senator FERGUSON. Yes. Mr. CHAFEE. We have new dangers, and we have new needs. We are like a boy on his twenty-first birthday; it is a different kind of world, but he has to face it bravely and courageously. Now the framers trusted the Senate to distinguish between good and bad treaties. What is good and what is bad is different from what it used to be.

But they left the thing flexible, trusting you to use your judgment with new needs and new dangers to do the right thing. If you approve this amendment it shows that you do not trust yourselves. You will be giving away a big slice of your power at a time when this Nation is assuming heavier responsibility in the world than it ever has had before.

Senator FERGUSON. As to trusting ourselves, it may be well that we tell the citizens back home that they need a brake on us, the way we are spending money down here. It may be that they ought to have a brake so that we cannot do things that we are doing, I do not know because that is for the citizens, but that is why we have you here telling us that we ought to trust ourselves, and I imagine that some others will come here and say, "We don't want to let you trust yourselves; we want to put up a red flag saying you can't go by.”

Mr. CHAFEE. There is no real evil that anybody points to that justifies it. They cannot point to a single bad treaty.

Senator FERGUSON. Suppose some of the people are objecting to what happened in California, not on the merits of the case but on the proposition that a State law that barred certain people from owning real estate was set aside. Now there may be people in Michigan that if they knew an alien could practice medicine in Detroit the same as any citizen, they would not want it. They might feel that when they go to a physician they would want him to be at least a citizen and owe allegiance to this country.

I do not know. But those are the questions that are presented to Mr. CHAFEE. This amendment does not say whether it is retroactive. It would have to be retroactive to upset the United Nations Charter, and then you would upset hundreds of other treaties. I have never heard so much fuss as I have about the lower court. I hardly think it is worth putting in the case book.

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Senator FERGUSON. It has been set aside.

Mr. CHAFEE. Yes, it has been set aside, and I should think we ought to stop worrying about it now.

Senator FERGUSON. Suppose they appeal and the upper court says that the lower court was right! The people cannot stop worrying.

Mr. CHAFEE. If you get a Supreme Court decision then there will be some need to think about it then.

Senator FERGUSON. I think one of the things that disturbs the people is that people were coming in with legislative acts and putting in the preamble the fact that now certain things could be done because of the United Nations Charter. That is one of the things involved here.

Mr. CHAFEE. I thought that was it the Lesinski bill! It was defeated ?

Senator FERGUSON. Yes. Mr. CHAFEE. That is what is going to happen if any of these terrible things are put before you. You will defeat them.

Senator FERGUSON. Doctor, you have not finished ?
Mr. CHAFEE. You have my statement, and that will suffice.

Senator FERGUSON. The committee will recess until 10 o'clock tomorrow morning

(Whereupon, at 4:30 p. m., the subcommittee recessed to reconvene at 10 a. m. Thursday, May 22, 1952.)

TREATIES AND EXECUTIVE AGREEMENTS

THURSDAY, MAY 22, 1952

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UNITED STATES SENATE,
SUBCOMMITTEE OF THE COMMITTEE ON THE JUDICIARY,

Washington, D.C. The subcommittee met, pursuant to recess, at 10 a. m., in room P-36, the Capitol, Hon. Pat McCarran (chairman) presiding:

Present: Senators McCarran, O'Conor, Ferguson, and Hendrickson.

Also present: J. G. Sourwine, committee counsel; Wayne H. Smithey, professional staff member.

The CHAIRMAN. The committee will come to order.

Senate Joint Resolution 130 is before the committee. We have here this morning to be heard Mr. Holman and Judge Phillips.

Senator FERGUSON. Could I inquire as to whether or not there will be a meeting next Tuesday of the committee?

The CHAIRMAN. Of the full committee?
Senator FERGUSON. No; of this subcommittee to take testimony.

The CHAIRMAN. There is a request from the Under Secretary of State requesting an opportunity to come before the committee on next Tuesday.

Senator FERGUSON. Then Mr. Eichelberger would be able to testify at the same time?

The CHAIRMAN. Yes.
Senator FERGUSON. Thank you.

Senator HENDRICKSON. Mr. Chairman, I would like to ask if the State Department is going to testify we would have the right to recall members of the American Bar Association ?

The CHAIRMAN. You certainly will have. Senator FERGUSON. Or it may be possible that if we send them a copy of the transcript they can send a brief.

a The CHAIRMAN. Mr. Holman?

Mr. HOLMAN. Judge Phillips just suggested that he has a legal engagement, and I would be glad to defer to him.

The CHAIRMAN. Very well.

STATEMENT OF JUDGE ORIE L. PHILLIPS, WASHINGTON, D. C.

The CHAIRMAN. Any statement that you have to make with reference to Senate Joint Resolution 130 the committee will be glad to hear, Judge.

Judge PHILLIPS. Thank you, Senator.

My name is Orie L. Phillips, and I am a member of the standing committee on peace and law through the United Nations of the American Bar Association.

Senator McCarran and gentlemen of the committee, I have prepared a written statement which if you will permit I will file and try to summarize part of it and leave the balance to the written statement.

The CHAIRMAN. Very well, that will be done.
(The statement referred to is as follows:)

STATEMENT OF ORIE L. PHILLIPS ON SENATE JOINT RESOLUTION 130 It is a privilege I greatly esteem to be permitted to discuss with you a subject which, in my humble opinion, is today one of transcendent importance.

At the outset it may be well to preface the discussion with certain fundamental concepts with respect to which I think we may be in substantial agreement.

Our Federal Government is, and should continue to be, one of delegated and limited powers. Its powers should be limited to matters that are national in scope and character and matters which are essentially local in character should be reserved to the States and the people, with the power to deal with them in the light of peculiar local conditions and problems which differ widely throughout the various sections of our great country.

In a country as vast as ours, with varying local conditions and problems, the expansion of Federal power with respect to matters not national in scope and character means inefficiency in administration, extravagance in expenditures of public funds, and an expansion of bureaucracy with its tendency to become a rule of men rather than of law, to promulgate a maze of rules and regulations, without regard, and in many instances, unsuited to local conditions and problems, and to become arbitrary and tyrannical in the administration and in the enforcement of such rules and regulations.

Because of these things, it is my firm conviction that the preservation of the rights and powers of the States and the principles of local self-government is essential to the maintenance of liberty and the fundamental freedoms of the individual.

Why does the treaty-making power under provisions of our Federal Constitution, which have not been changed since its adoption, now give rise to questions of supreme importance? There are two answers: (1) In the past two decades there have been persistent efforts to find constitutional bases for the expansion of the powers of the Federal Government, and (2) a basic change of viewpoint is being urged with respect to the functions and purposes of treaties.'

Until recently it was a fundamental concept of international law that it is a law between States and not between individuals or between individuals and States.

A treaty is primarily a compact between independent nations and depends for the enforcement of its provisions on the honor of the governments which are parties to it. If dishonored, its infraction becomes the subject of international reclamation and negotiation. At the time the Constitution was adopted and until recentlly, treaties, entered into by the United States, generally were compacts in that primary sense, imposing duties and obligations on the contracting states and not on individual citizens. True, under the supreme law provision of our Constitution, a self-executing treaty becomes municipal law in the United States and such a treaty may confer rights upon citizens or subjects of a signatory nation, residing in the United States, which partake of the nature of municipal law and which are capable of enforcement as between private parties in the courts. An illustration is found in treaties which regulate the mutual rights of the citizens and subjects of the contracting parties with respect to the devolution of property to aliens by devise or inheritance.?

Hamilton (The Federalist, No. 75) stated :

“The essence of the legislative authority is to enact laws, or, in other words, to prescribe rules for the regulation of the society; while the execution of the laws, and the employment of the common strength, either for this purpose or for the common defense, seem to comprise all the functions of the executive magistrate. The power of making treaties is, plainly, neither the one nor the other. It relates neither to the execution of the subsisting laws, nor to the enaction of new ones; and still less to an exertion of the common strength. Its objects are contracts with foreign nations, which have the force of law, but derive it from the obligations of good faith. They are not rules prescribed by the sovereign to the subject, but agreements between sovereign and sovereign. The power in ques

1 A Modern Law of Nations, Jessup. 2 Head Money Cases, 112 U. S. 580.598.

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tion seems therefore to form a distinct department, and to belong, properly, neither to the legislature nor to the executive. The qualities elsewhere detailed as indispensable in the management of foreign negotiations, point out the Executive as the most fit agent in those transactions; while the vast importance of the trust, and the operation of treaties as laws, plead strongly for the participation of the whole or a portion of the legislative body in the office of making them."

Today, however, treaties are being proposed, and at least one has been submitted to the Senate for ratification, which impose civil and criminal liability for acts of citizens of the United States or which affect rights of and impose duties and obligations on citizens of the United States, in areas heretofore within the reserved powers of the States.'

This brings me to a consideration of the provisions of our Federal Constitution with respect to the treaty-making power.

Article II, section 2, paragraph 2, of the United States Convention provides :

"He (the President] shall have power, by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the Senators present concur;

It will be observed that the grant of power is general and the limitation is only on the manner of its exercise.

In United States v. Curtiss-Wright Corporation, decided in 1936, the Court held that the treaty-making power is not one granted by the States ; that it does not depend upon an affirmative grant in the Constitution; that without such a grant it would have vested in the Federal Government as necessary concomitants of nationality; and that the United States is vested with all the powers of government necessary to maintain an effective control of international relations, In United States v. Belmont," decided in 1937, the Court said:

the external powers of the United States are to be exercised without regard to State laws or policies," and in United States v. Pink, decided in 1912, the Court said:

the field which affects international relations is 'the one aspect of our Government that from the first has been most generally conceded imperatively to demand broad national authority.'”

Dicta may be found in decisions of the Supreme Court to the effect that while the treaty-making power is not limited by any express provision in the Constitution, it does not authorize what the Constitution forbids and its exercise must not be inconsistent with the nature of our Government and the relation beween the States and the United States.? But to this good day no treaty has been judicially declared to be beyond the treaty-making power of the National Government,

May I now refer to article VI, paragraph 2, of the United States Constitution, which provides :

“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."

It will be observed that under this provision laws of the United States are the supreme law of the land only if made in pursuance of the Constitution ; while treaties are declared to be the supreme law of the land if they are made under the authority of the United States.

The last paragraph of section 8 of article I of the Constitution grants to Congress the power to make all laws necessary and proper for carrying into execution its enumerated powers and "all other powers vested by this Constitution in the Government of the United States, or in any department or officer thereof." Under that provision the Congress may enact laws to implement and carry into effect a treaty made under the authority of the United States, although it would not have power under the Constitution to enact such laws in the absence of the treaty. Such was the holding of the Supreme Court in Missouri v. Holland, where the Migratory Bird Treaty Act of July 3, 1918, and the regulations made by the Secretary of Agriculture in pursuance thereof

3 The Treaty as an Instrument of Legislation, Allen, pp. 10, 11.

299 U. S. 304, 315-318. $ 301 U. S. 324, 331. • 315 U. S. 203. 232.

7 Asakura v. Seattle, 265 U. S. 332, 341 ; Holden v. Joy, 84 U. S. 211, 243 ; Geofroy v. Riggs. 133 U. S. 258. 267.

9 252 U. S. 416, 432, 433. 940 Stat. 755.

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