technical legal sense the California Supreme Court holds the Charter is not a self-executing treaty, the Charter is allowed to produce the same effect by projecting itself into the thinking of the court in a new construction of the “equal protection" clause of the fourteenth amendment to the Constitution of the United States to the extent that earlier statutes and decisions upon the identical issue that have stood the test of time and experience are swept aside. The same judicial technique operated in the mixed-marriage case (Perez v. Lippold), where Judge Carter (also a member of the present court), after citing the general language of the Declaration of Independence and the fifth and fourteenth amendments to the Constitution of the United States, then devoted a paragraph to the Charter of the United Nations and concluded: "In the face of these authoritive (meaning authoritative) pronouncements, the matter of racial equality should be a settled issue."

Now the same California Supreme Court, dealing with the California alien land law, where the law has been settled for years upon the basis of both State and United States Supreme Court decisions, "sees a new light" and with no other new beacon in the firmament to guide it to changing the settled law of many years except the United Nations Charter, the court after discussing the Charter concludes with the following observation:

"The humane and enlightened objectives of the United Nations Charter are, of course, entitled to respectful consideration by the courts and legislatures of every member nation, since that document expresses the universal desire of thinking men for peace and for equality of rights and opportunities. The Charter represents a moral commitment of foremost importance, and we must not permit the spirit of our pledge to be compromised or disparaged in either our domestic or foreign affairs."

Who is the "we"?-obviously the court, whose new interpretation of the "equal protection" clause is directly influenced by the moral pledge in the United Nations Charter. How is the pledge to operate? It is to operate in our domestic as well as in our foreign affairs, and the courts are to be so guided in their consideration of the law as to see to it that the pledge is executed. What more could be necessary for all practical purposes to make the Charter a self-executing instrument?

The judicial result in the Fujii case makes it clearer than ever that the only way to protect the rights of the American people in their domestic affairs is to adopt a constitutional amendment which will indicate in language too clear to be misunderstood that no provision of a treaty is to be given any judicial consideration or effect unless it has been implemented by act of Congress, which in turn is enacted within the delegated powers of the Congress. This will put at rest the troublesome question of whether a treaty is self-executing or not, and put us on a par with the other nations. It is the settled law in Canada and England and most other important countries in the world that a treaty that has not been implemented by legislation cannot be a source of legal obligations affecting private rights. Lamont J. stated this principle clearly in the Arrow River case (Canada (1932) S. C. R. 495, at p. 510; (1945) 2 D. L. R. 250, at p. 260).

"Without the sanction of Parliament, the Crown cannot alter the existing law by entering into a contract with a foreign power *** Where, as here, a treaty provides that certain rights or privileges are to be enjoyed by the subjects of both contracting parties, these rights and privileges are, under our law, enforceable by the courts only where the treaty has been implemented or sanc tioned by legislation rendering it binding upon the subject."

When the latest Fujii decision is reviewed from every angle and the 60 pages of the majority opinions read and reread, one cannot escape the conclusion that United Nations Charter effected the overthrow of the established law of a great State as the people of that State had determined it for themselves, and that this change of domestic law influenced by the provision of a treaty would not have occurred if there had been a constitutional amendment assuring the judges that it was not the will of the American people that their local laws be changed merely by a treaty or the so-called moral commitments thereof.

If the so-called moral commitment and/or pledge in a charter which is claimed to be non-self-executing can work this change in the established law, what about the socialistic if not communistic "moral commitment" and "pledges" in the Declaration on Human Rights? What about the so-called moral commitments and pledges in the present Covenant on Human Rights abridging our American concept of freedom of speech and of press and of religion, and even of "due process" including our right to trial by jury? The majority decision in

the Fujii case has opened up a Pandora's box of so-called social commitments and international pledges.

With the Senate as busy as it is with a great variety of matters, it is never quite certain when a treaty is approved what provisions the courts may hold self-executing and how some provision may later adversely affect and change the constitutional rights of American citizens. It may be years before this is discovered, but when discovered an appropriate constitutional amendment would protect and safeguard the citizens' rights. For example, the Warsaw Convention relating to international air transportation was approved by the Senate some years ago when we were on friendly terms with Russia. It now transpires that this treaty deprives American citizens of their full and proper right to trial by jury. In the fine-print provisions of the Warsaw Convention there is a provision limiting the tort liability of air carriers for personal injuries or death of passengers in aircraft disasters to the sum of 125,000 francs. The franc, of course, fluctuates from time to time, but in no event does an American citizen or the widow and family of such citizen recover more than 125,000 francs, which at the present time is equivalent to about $8,300 in American money, a ridiculously inadequate sum as the maximum of recovery in a death case due to negligence.

This Warsaw Convention, being a treaty, has been held to be the supreme law of the land and to override State law and policies (Garcia v. Pan American Airways (1945), 55 N. Y. S. (2d) 317, affirmed 295 N. Y. 852, 67 N. E. (2d) 257; Lee v. Pan American Airways (1949), 89 N. Y. S. (2d) 888, 300 N. Y. 761, 89 N. E. (2d) 258, certiorari denied 339 U. S. 920).

In 1948 when the declaration was passed we were not only assured that it was to be a declaration of aspirations only but we were also given to understand that the forthcoming Covenant on Human Rights would not attempt to cover so-called social and economic rights.

On November 12, 1948, General Marshall, as Secretary of State, wrote me, as president of the American Bar Association, assuring the American Bar Association that the declaration was only to be a declaration of principles and of no legal force or effect. Now we discover that the sponsors of the declaration are proposing that it should be implemented as a part of the Covenant on Human Rights (see United Nations Bulletin, March 1, 1952, pp. 240-242) and is to be ratified as a treaty and enforced through the organization of international courts. Thus, the "internationalists" and the State Department move step by stepfirst, aspirations; then ratification of these aspirations in treaty form; then international courts to enforce the aspirations. Thus our internal rights under our own Constitution, and Bill of Rights, are being undermined step by step and will continue to be undermined unless the American people shut off this insidious: process by an appropriate constitutional amendment.

Meanwhile we have been offered the Genocide Convention, which, if ratified,. would among other things, commit us to the principle of the trial of American citizens in foreign courts. The Genocide Convention carries a provision for theextradition of American citizens for trial outside the United States where our constitutional trial procedures and Bill of Rights would not operate. In passing, it should be observed that the Genocide Convention is a "trick" document in that it does not outlaw the kind of genocide that occurred in Hitler's Germany and is now occurring in Russia and in Russian satellite countries. (See testimony of American Bar Association witnesses before the subcommittee of the Senate Foreign Relations Committee, January 1950.)

Recently in a letter to the New York Times a Harvard professor undertook to reassure the American people that a provision had now been introduced into the proposed Covenant on Human Rights which would remove any and all danger toAmerican rights, even though the covenant was ratified as a treaty. This is another instance like that of article 2, subparagraph 7, of the Charter, hereafter discussed, where by loose and general language the internationalists undertaketo beguile the American people into a feeling of security. The trick provision introduced in the covenant, article 18, paragraph 2, to which the Harvard professor refers reads: "Nothing in this covenant may be interpreted as limiting or derogating from any of the rights and freedoms which may be guaranteed. under the laws of any contracting state." This clause is said to preserve such. greater rights as may already exist in any country. But many of our rights arise through a restraint on Congress to deny or abridge basic rights and not as a restraint on the treaty-making power. Thus, many questions of conflict will arise. as to whether our Bill of Rights protects us against treaty-made law. This is not an effective saving clause for many other reasons-one important one being.

disclosed in cases like the alien-land-law case and the mixed-marriage case, where it is a question of the right of the people of a particular State to legislate for themselves. Many of our freedoms in this country lie in a concept not covered by any such phrase as "guaranteed under the laws of the contracting state." This clause clearly discloses how little attention the American representatives in the United Nations pay to basic American constitutional principles. Our rights to freedom of speech and of press and of religion and of assembly are not "guaranteed" by any laws of the United States. They are rights reserved to the people of the respective States. The Bill of Rights says that as such they shall not be abridged, but the Bill of Rights does not grant these rights; so that the so-called "saving clause," that nothing in the covenant shall be interpreted as limiting or derogating from the existing rights of freedoms which are guaranteed under the laws of a contracting state-to wit: The United States-is ineffective language. It is doubtful whether any such saving clause, however, phrased, would fit the American situation. Why should we run any risk of language in connection with these precious freedoms?

As already pointed out, under the American theory of government our basic individual rights belong to the American people. They are retained by the people even as against the Government itself and ought not to be subject to definition or modification through the use of the treaty-making process. Even if all these international documents were as to language and substance in exact accord with our own Bill of Rights and the Constitution, nevertheless to acquiesce in the theory that the United Nations Assembly through treaties ratified by our Senate can fix and define our basic individual rights is in effect to agree that this same authority which we thus allow to confer these rights may later withdraw them or limit them or condition them in such manner as a majority of the representatives of the other nations of the world may from time to time deem appropriate provided that our Senate in the interest of world peace or otherwise chooses to ratify a treaty to that effect. Any such acquiescence by us constitutes a complete reversal of the American concept of basic rights and of government. Our own Bill of Rights forbids the Congress to change our basic rights but as the Constitution now stands it does not prevent our basic rights from being changed by a treaty made by the treaty-making agency which consists of the President and two-thirds of the Senators present and voting. This is the loophole in the Constitution that we now face and through which the internationalists propose to move and by treaty law change and level out our American rights (both State and individual) and thereby change our form of government. The internationalists say a treaty can be made on any matter which international opinion deems to be of international concern and that "human rights" are of international concern. Which loose and general thinking has led our State Department to say officially that "there is no longer any real difference between domestic and foreign affairs" (State Department Publication 3972-Foreign Affairs Policy Series 26 released September 1950-Foreword by President Truman). Because of this declaration by the State Department and declaration by U. N. representatives like Mr. Humphrey, article 2, paragraph 7 of the charter, that nothing contained therein shall authorize the United Nations to intervene in domestic matters, becomes meaningless.

With this broad picture of what is going on in the international field, let us ask ourselves certain specific questions.

1. How far can a treaty affect or nullify the provisions of a State constitution? A treaty may completely nullify a provision in a State constitution and without the people of a State having any voice in the matter directly or through their State legislature, because under article VI of the United States Constitution a treaty is the "Supreme Law of the Land any Thing in the Constitution or Law of any State to the Contrary notwithstanding." No informed lawyer will dispute this point (Santovincenzo v. Egan, 284 U. S. 30; Valentine v. United States, 299 U. S. 5).

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2. How far can a treaty affect or nullify a State statute? The answer is the same. It may, and for the same reason. No informed lawyer will differ on this point because it is specifically covered by article VI.

3. How far can a treaty affect or nullify the decision of a State supreme court? The answer is the same. A treaty may nullify a State supreme court decision. No informed lawyer will disagree on this because it also is specifically covered by article VI.

4. How far can a treaty affect or nullify existing Federal legislation on the same subject? The answer is the same. See United States v. Reid ((C. A. 9) 73 F. (2d) 153, 155) where the Court said:

"It is doubtful if the courts have power to declare the plain terms of a treaty void and unenforceable * **

See also United States v. Thompson (258 Fed. 257, 260) where the court said: "The power to make treaties has been frequently before the Supreme Court, and there is not a single instance in which a treaty has been declared unconstitutional * *

5. Can a treaty affect or amend the United States Constitution and Bill of Rights, and, if so, to what extent? Under the logical application of Missouri v. Holland (252 U. S. 416) it can. This will be discussed later, because upon this point there is disagreement among lawyers. But it should be pointed out in passing that if a treaty can change or amend the Constitution of the United States then a treaty can

(a) Change our form of government from a republic to a socialistic and completely centralized state.

(b) It can put us into a world government without the people either directly or through the Congress passing on the question.

(c) It can increase the powers of the Federal Government at the expense of the States. For example, in the so-called field of civil rights, a treaty can do what the Congress has theretofore refused to do. The Congress has to date refused to enact the President's civil-rights program. To get around this, in spite of Congress, the President's Committee on Civil Rights now proposes that the Human Rights Commission of the United Nations incorporate the President's program in treaty form and thus circumvent the Congress (Civil Rights Committee Report, par. 10).

(d) A treaty can seriously affect our basic individual rights as, for example, the right of a citizen to be tried in American courts and under the protection of "due process." This was openly asserted in the report of the section of international comparative law to the house of delegates of the ABA in February 1952, where it was stated:

"So far as the requirement of indictment by grand jury and trial by jury are concerned, these apply only to trials in the Federal courts, and can have no application to an international court set up by a group of nations in the exercise of their treaty-making power * * there is no reason why such

courts may not be created in the exercise of the treaty-making power." In other words, it is claimed that under the treaty-making power provision may be made for the trial of American citizens abroad, for offenses committed here, by methods and in places (see sixth amendment) which the Constitution forbids.

A further attack on basic individual rights through the treaty-making process is proposed in article 2 and paragraph 3 of article 14 of the draft Covenant on Human Rights wherein our right to freedom of speech and press would be subject to grave limitations and even suspension.

Under our American concept of freedom of speech and of press the only basic restriction that the law imposes is where a particular court believes that in a specific case there has been a flagrant abuse of one of these freedoms. As Justice Holmes once said, “Free speech would not protect a man falsely shouting fire in a theater where there was not fire and causing a panic. The question in each case is whether the words are used in such circumstances and are of such a nature as to create a clear and present danger." In other words, except for certain common law limitations such as slander and libel and such additional limitations as Holmes suggested in the cry-of-fire case, our forefathers recognized that "freedom of speech and press" were so precious and so necessary to the continuation of our other freedoms under a free government that they specifically provided in the very first provision of the Bill of Rights that Congress shall pass "no law" abridging freedom of speech or of press. This basic concept has now been repudiated by the present provisions of the proposed International Covenant on Human Rights. Paragraph 3, article 14 of the covenant provides that freedom of speech and of press is subject to such "penalties, liabilities, and restrictions" as are "provided by law and are necessary for the protection of national security, public order, safety, health, or morals," etc. "National security, public order, safety, health, and morals" constitute the whole gamut of human activities and human relations; so that under such language any administration in power could provide by law (contrary to the first provision of the Bill of Rights) such restriction or abridgment of freedom of speech or of press as it asserted necessary.

But this is not all. Under article 2 of the covenant it is provided that "in the case of a state of emergency officially proclaimed by the authorities a state may

take measures derogating from its obligations" among other things to preserve freedom of speech and of press. In other words, the whole right to freedom of speech and of press may be suspended whenever a state of emergency is proclaimed by the authorities in power-a dangerously easy way to destroy our individual freedoms. This proviso in article 2 ratifies and approves the practice which has been followed in dictatorships from earliest times of suppressing by executive decree the freedoms which in our country, under our own Bill of Rights, are not subject to suppression.

In this connection it is significant to note that President Truman having already seized the steel mills, indicated in his press conference of April 17, 1952, that he would have the power in a national emergency to seize the newspapers and the radio stations. This discloses how far the President's mind has embraced the concepts of dictatorship spelled out in the draft Covenant on Human Rights. If this international bill of rights is approved by us is this limitation on freedom of speech and of press also to become a "moral commitment" or "pledge" in the minds of the judges in California and perhaps in other States? Certainly if there is no constitutional amendment to protect American rights and the covenant in its present form is ratified as a treaty, then under article 2 of the covenant the President would have the undoubted legal right to seize all of such newspapers and radio stations as he desired and the courts would have to sustain him in such seizure.

I will now discuss the question hertofore raised (about which there is some disagreement among lawyers) as to whether, under the Holmes doctrine in Missouri v. Holland (252 U. S. 416-1920), a treaty can enlarge or amend the United States Constitution and bypass the Bill of Rights.

In earlier United States Supreme Court cases it was indicated that a treaty may not enlarge or amend the Constitution of the United States.

In New Orleans v. U. S. (10 Pet. 662—1836), it was held obiter that "Congress cannot by legislation, enlarge the Federal jurisdiction nor can it be enlarged under the treaty-making power." This case is sometimes referred to as having invalidated a treaty on the foregoing ground but the decision is explainable on other grounds and its reasoning on the treaty-making power is in any event in conflict with Missouri v. Holland as will later appear.

In Doe v. Braden (16 How. 635; U. S. 1853), the Court indicated that the Constitution was superior to a treaty:

"The treaty is therefore a law made by the proper authority, and the courts of justice have no right to annul or disregard any of its provisions, unless they violate the Constitution of the United States.

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In Hauenstein v. Lynham (10 Otto 483 (U. S. 1880)), although the Court held a Virginia statute regarding escheat of alien property had been nullified by an American-Swiss treaty, it suggested that there were limitations upon the treaty-making power by saying that:

*** * There are doubtless limitations of this power as there are of all others arising under such instruments; but this is not the proper occasion to consider the subject.

Following the Hauenstein case and in support of a doctrine of limitations came Geofroy v. Riggs (133 U. S. 258 (1890)). In this case the Court clearly indicated that the treaty-making power was not to be treated as unlimited.

In two earlier cases Whitney v. Robertson (124 U. S. 190 (1888)) and Botiller v. Dominguez (130 U. S. 238 (1889)), an important limitation was indicated, to wit that a treaty may be abrogated by the enactment of a subsequent Federal statute clearly inconsistent therewith. Such a limitation would, of course, have the salutary effect of preserving in the people, through their elected representatives in Congress, the ultimate power of preventing the President, with the consent of the Senate, from making domestic law on a particular subject, or supplementing or amending the Constitution of the United States without the consent of the people.

But the sanity and safety of the developing judicial doctrine of the earlier decisions regarding proper limitations upon the treaty-making power was more or less swept away by the broad language of Mr. Justice Holmes in Missouri v. Holland (252 U. S. 416 (1920)). In this case Mr. Justice Holmes held that whereas congressional enactments to be the supreme law of the land must be made in pursuance of the Constitution, a treaty is the supreme law of the land if made only under the authority of the United States, which merely means the President and two-thirds of the Senate present and voting. Under the Holmes concept a treaty, unlike a Federal statute, will be valid and be the supreme law of the land even though not made "in pursuance of the Constitution.”

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