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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 detine 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 therehy 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).

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. (20) 153, 155) where the Court said :




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"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.

(0) 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 hare 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 repu ted 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," ete. "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 Ncuc 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.

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 sich 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 ('oncept 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."



The language of article VI requiring a treaty merely to be made under the authority of the United States, rather than in pursuance of the Constitution, thus resulted in the Supreme Court holding that under a treaty Congress may exercise legislative powers which it would not have under the Constitution in the absence of the treaty and that Congress may pass any legislation under a treaty that it deems “necessary and proper" (Constitution, art. I, sec. 8) regardless of what may be the constitutional limitations on the Congress apart from the treaty. Therefore, the logical result of Missouri v. Holland is that a treaty may both enlarge and change the Constitution itself and sweep away State constitutions and State laws in the process.

Chief Justice Charles E. Hughes almost prophetically recognized the constitutional predicament the people of America now face when on April 26, 1929, speaking before the American Society of International Law, he said:

"If we take the Constitution to mean what it says, it gives in terms to the United States the power to make treaties, it is a power that has no explicit limitation attached to it, and so far there has been no disposition to find in an ilthing relating to the external concerns of the Nation a limitation to be implied. [Italics mine.]

"Now there is, however, a new line of activity which has not been very noticeable in this country, but which may be in the future, and this may give rise to new questions as to the extent of the treaty-making power. I have been careful in what I have said to refer to the external concerns of the Nation. I should not care to voice any opinion as to an implied limitation on the treaty. making pourer. The Supreme Court has erpressed a doubt whether there could be any such. That is, the doubt has been expressed in one of its opinions. [Italics mine.] (Meaning, Missouri v. Holland.) But if there is a limitation to be implied, I should say it might be found in the nature of the treaty-making power.

"What is the power to make a treaty? What is the object of the power : The normal scope of the power can be found in the appropriate object of the power. The power is to deal with foreign nations with regard to matters of international concern. It is not a power intended to be exercised, it may be assumed, with respect to matters that have no relation to international con

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But if we attempted to use the treaty-making power to deal with matters which did not pertain to our external relations but to control matters which normally and appropriately were within the local jurisdictions of the States, then I again say there might be ground for implying a limitation upon the treaty-making power that it is intended for the purpose of having treaties made relating to foreign affairs and not to make laws for the people of the United States in their internal concerns through the exercise of the asserted treaty-making power.”

But this is exactly what is now being attempted by the "internationalists" in the United Nations—to use treaties to make domestic law-and they propose through the doctrine of Missouri v. Holland to make laws for the people of the United States in their internal concerns," for as the State Department has officially said: “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 grave threat to constitutional government in this country and in order to set at rest this matter of risking what the Supreme Court may do under the Holmes concept in the future, the American Bar Association, after several years of consideration and after full debate in its house of delegates, has concluded that a constitutional amendment is necessary to preserve American rights and the American form of government against the dangers of treaty law. The form of amendment which the American Bar Association proposes has been set forth in my preliminary statement.


Any draft of a constitutional amendment to protect American rights (State and individual) against the dangers of "treaty law” should embody the following purposes and objectives :

1. To remove any possible doubt that a treaty to be valid as domestic law must be consistent with the Constitution and not in conflict with it. To give unequivocal constitutional effect to judicial dicta not yet incorporated in binding decisions, to the effect that “Congress cannot, by legislation, enlarge the Federal

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jurisdiction, nor can it be enlarged under the treaty-making power,” and that no provision of a treaty which violates the Constitution or which is inconsistent with the nature of the Government of the United States or of the relation between the States and the United States, shall be valid. New Orleans v. United States (10 Pet. 662, 736); The Cherokee Tobacco (1, Wall. 616, 620-1); Holden v. Joy (17 Wall. 211, 243) ; Geofroy v. Riggs (133 U. S. 248, 267) ; and see Asakura v. Seattle (265 U. S. 332, 341). Any inferences drawn by some persons from Missouri v. Holland (252 U. S. 416) and U. S. v. Curtiss-Wright Corporation (299 U. S. 304, 316-319), that the treaty power is unlimited in any field, regardless of the Constitution, should be unqualifiedly negatived by such amendment, and any doubt on this score be forever set at rest. See also United States v. Pink (315 U. S. 203, 233–4).

2. The amendment should prevent a treaty from becoming internal law in the United States by force of its self-executing terms. The amendment should make all treaties non-self-executing so far as domestic law is concerned until Congress acts. It should remove the question of whether a treaty is self-executing or non-self-executing from the realm of judicial speculation and make the internal effectiveness of the treaty within the United States depend exclusively on statute passed by both Houses of Congress.

As has already been pointed out in this connection, in almost every important country of the world except the United States, each country is free to decide when and to what extent it wishes to implement a treaty by the passage of legislation even though such signatory state has agreed generally to enact such legislation. (Report, peace and law committee, September 1950, pp. 9 to 12.)

The United States is the only important country that faces the peculiar legal situation (except possibly France and Mexico—which on examination are not true exceptions) that when a treaty is ratified by our constitutional process, to wit, by the President with the consent of the Senate, its provisions automatically become a part of the supreme law of the land. Hence, in the United States when an international agreement like the United Nations Charter, or the Genocide Convention or the Covenant on Human Rights, is ratified as a treaty, it may supersede every city ordinance, every county ordinance, every State law, every State constitution, and every Federal statute on the same subject and under the logical result of the Holmes doctrine in Missouri v. Holland, it may enlarge and amend the Constitution of the United States.

3. The amendment should limit the language of the decision of Missouri v. Holland, supra, by making it clear that in legislating in respect of treaties, Congress shall have no power which it does not already have under the Constitution, apart from its power to carry treaties into effect under the “necessary and proper clause" of the Constitution (art. I, sec. 8). The amendment should take care of the broad language in U. Š. v. Curtiss-Wright Corporation, supra (299 U. S. 304), where the language of the court espouses the theory of inherent Federal power in the field of international relations. (It is thought that the word "delegated" in the proposed text of the American Bar amendment negatives any inherent power theory in the Federal Government in the field of international relations. Under this form of amendment, the treaty-making power may not be utilized to create legislative power not otherwise existing in Congress to enact internal law binding on the several States, which would have the effect of abridging the reserved rights and powers of the States, imposing criminal and civil liabilities on citizens of the United States, or affecting rights or imposing duties on citizens of the United States.)

4. An amendment should make it inescapably clear that the limitations on "Congress" in the first amendment that "Congress shall make no Jaw." cannot be escaped by use of the treaty-making power under the claim that the President and Senate are a separate agency for treaty-making and are not subject to constitutional limitations on "Congress.” (See Report of Committee on Peace and Law, September 1, 1950, pp. 40–41.) Some critics say that any amendment accomplishing the foregoing purposes and objectives would prevent the proper exercise of the treaty-making power in the international field-that such an amendment would abridge the power of the United States to make treaties of commerce, of navigation, and of friendship and the power to make many other traditional types of treaties. This argument is fully disposed of in the February 1952 Report of the Committee on Peace and Law, pages 14 to 17, inclusive, and the matter is being dealt with at greater length in an article that will appear in the June issue of the American Bar Association Journal by Dr. George A. Finch, an eminent authority on treaties and the editor of the American Journal of International Law.

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