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 anything relating to the external concerns of the Nation a limitation to be implied. [Italics mine.] I "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. should not care to voice any opinion as to an implied limitation on the treatymaking power. The Supreme Court has expressed 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 * ** 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. II. THE FORM OF AMENDMENT 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 . TREATIES AND EXECUTIVE AGREEMENTS jurisdiction, nor can it be enlarged under the treaty-making power," and that 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. S. v. Curtiss-Wright Corporation, supra (299 U. S. 304), where the language of the court espouses the theory of inherent Fed(It is thought that the word eral power in the field of international relations. "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 law" 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 (See Report of Committee on to constitutional limitations on "Congress." Some critics say that any Peace and Law, September 1, 1950, pp. 40-41.) 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. The form of constitutional amendment proposed by Senator Bricker in Senate Joint Resolution 130 and the form of amendment proposed by the American Bar Association are each designed to achieve the foregoing purposes and objectives as to treaties. Senator Bricker's amendment includes executive agreements. The American Bar Association's committee on peace and law is still studying the matter of executive agreements and whether in its opinion they should be dealt with in a constitutional amendment and hence be given a constitutional status as a substitute for treaties. The committee on peace and law will doubtless make a further report on this matter at the next annual meeting of the association in San Francisco in September of this year. Personally I am inclined to believe that executive agreements should be included. However, my chief purpose here is to prove the need of a constitutional amendment to achieve the purposes and objectives heretofore set forth. The proper text is a matter of considerable skill in draftsmanship. Several other drafts of amendments have been proposed, one by joint resolution of the State Legislature of California, one by joint resolution of the State of Wyoming and another by joint resolution of the State of Colorado. I understand other State legislatures are considering drafts. An increasing number of lay organizations have approved the idea of a constitutional amendment. These now include the American Legion, the Veterans of Foreign Wars, the Marine Corps League of America, numerous service clubs and many other organizations. There is a widespread national interest in the matter. The Chamber of Commerce of the United States first through a special committee appointed to study the subject, then through its standing committee on policy, then by its whole body of delegates at its annual meeting in April of this year In simple and easily understandable language adopted the following policy with respect to the processes of making international agreements and with respect to the effect on domestic law of such agreements: A. No provision of a treaty or of an executive agreement that alters or abridges the Constitution of the United States shall become effective unless such alteration or change is embodied in a constitutional amendment adopted and ratified in the manner provided in that Constitution for its amendment. B. No provision of a treaty or of an executive agreement that alters or abridges the rights protected by the laws of the United States or the constitution or laws of the several States shall become effective unless and then only to the extent that Congress shall so provide. CONCLUSION Gentlemen of the committee, with apologies for the length of my remarks, I would like to conclude by stating that it is no mere rhetorical statement to say that America faces a great constitutional crisis-one that threatens the very foundations of the Republic. Lawyers and laymen and the press are gradually rallying in support of a constitutional amendment. The effect of trying to incorporate in an international document the rights and freedoms which American citizens enjoy, whether under State or national constitutions, and to make them international rights and matters of international interpretation, and to give foreign governments as well as individuals and pressure groups in foreign countries the right and opportunity to challenge our own interpretation of our own rights and even to challenge our right to the protection of our own courts, constitutes, in my opinion, not only a grave threat to American rights but an actual and present threat to the independence of the United States. The internationalists and humanitarians have certainly discovered a loop-hole in our Constitution. As Henry St. George Tucker, a former president of the American Bar Association, has well stated, the present treaty clause is a Trojan horse which is about to unload its hidden soldiery in our midst. As the peace and law committee of the American Bar Association puts it, we need a constitutional amendment that will "drive the beast outside the walls without more damage done, and with its remaining armored soldiery securely locked within.' Mr. HOLMAN. So I will not go into any more of the details of my concern, and there are other things like the statement of Mr. Humphrey because they are in that statement, but at least as a result of what I had discovered and as president in 1948 and 1949 I decided to devote my time to alerting the lawyers and the press and the public in this country to what I called-and I think I am the author of the phrase originally-"the danger of treaty law.” I spoke in 1948 and 1949 in more than 30 States, not only at bar association meetings but to service clubs, Legion, veterans, and Marine Corps groups, and to a great number of lay organizations. I became convinced as early as that time that an appropriate constitutional amendment was the only sure way of protecting America's basic rights, both State and individual, against the dangers of treaty law. I am glad to say that the support of this idea has grown and grown and is still growing, and my formal written statement, at pages 19 and 20 reveals a number of the outstanding organizations throughout the country that have endorsed the proposal for such a constitutional amendment. I may say that in speaking to these organizations I have tried to suggest to them not to attempt to draw a text, I said that if you are for it just pass a resolution and do not try to draw a lot of different texts. Senator HENDRICKSON. On that score are you going to treat with respect to the various drafts? Mr. HOLMAN. I am. Now it may be appropriate to try to explain, because I have tried myself to understand the explanation, and while the State Department would not appreciate my trying to explain the background of their attitude in this matter, yet I do so quite earnestly and seriously. The reason the State Department goes along with this international program that tends to level out and change our American rights as fixed by our Constitution and Bill of Rights is first of all that the basic policy of the State Department is to cooperate with other nations, which is fine and to have all the other nations think that we are not only good neighbors and glad to help them in a material way with money and goods, but that we are willing to enter into declarations, covenants, and pacts in the field of so-called social and economic rights which will help them in some measure toward improving their own standards of life, and at the same time that we help them in just a material way the State Department wants the other nations to feel that we are willing to help them in these other ways. But because their standards and concepts in the field of law and social and economic rights are different from ours, the State Department recognizes that we cannot expect to have the other nations accept our concepts outright, so compromise becomes necessary in order to get an agreement like even the declaration. One of Mrs. Roosevelt's advisers, I am sure he will not mind my mentioning his name, Mr. Simsarin, told me very early in this development that the representatives of most foreign nations know nothing about the American Constitution and Bill of Rights and are not interested in talking about these documents. Well, that is understandable. And that for the American representative in the United Nations to insist upon incorporating the American concept of property and other fundamental American concepts merely caused irritation and resulted in a stalemate and that there could be no agreement, they could not come to an agreement. In other words, just like the lawyer who negotiates and his client wants an agreement, is willing to make a lot of compromises to get it. So what happened, and this is very interesting because Mrs. Roosevelt herself said in connection with the new conditions, that there were many compromises in it and if she had it to do again perhaps she would not have made so many. Our Government is founded on the idea that man is endowed by his Creator with certain inalienable rights. There was an attempt made to get into the declaration some such statement. Well, that ran into a stone wall with the Russians. They said: No, man is not endowed by the Creator or anything. He gets the kind of rights that the government gives him and he has them as long as the government lets him have them. Then the compromise was that man is endowed by nature. Oh, no, he is not endowed by nature either. He just gets what the state gives him. I ran into that in Quebec, Canada, where I got that story because my good Catholic friends up there were very much upset because they believe, you know, in the natural law theory very strongly. Now that is not a compromise perhaps, and I think I may state without offense to anybody that is of great importance to anybody, I mean it is a matter of great importance whether it is a theory of law, but it was a dramatic phrase. Senator FERGUSON. What is the final result? Mr. HOLMAN. No such phrase at all. Senator O'CONOR. May I ask if this would be an appropriate place to suspend? Mr. HOLMAN. It is. Senator O'CONOR. We are very much indebted to you, Mr. Holman, for your cooperation. Arrangements have been made, I might announce, to have room F-82, which is on the first floor right near the rotunda, for this afternoon at 2 o'clock. (Whereupon, at 11:45 a. m., the subcommittee recessed to reconvene at 2 p. m. of the same day.) AFTER RECESS (The hearing was resumed at 2 p. m., upon the expiration of the recess.) Senator FERGUSON. Mr. Holman, you were speaking when we recessed, and, the hour of 2 having arrived, you may proceed. STATEMENT OF FRANK E. HOLMAN, PAST PRESIDENT, AMERICAN BAR ASSOCIATION, SEATTLE, WASH.-Resumed Mr. HOLMAN. Thank you, sir. At the adjournment, Senator, I was undertaking to discuss this problem which the State Department has faced. The statement has been made that there is no distinction between domestic and foreign affairs, and I was discussing this incident of the elimination from the Declaration on Human Rights of any reference to our concept that the individual citizen is endowed with certain rights, including life, liberty, and property. Senator FERGUSON. Could I just take a moment on that? I had that forcefully brought to my attention last September, when we were having a meeting of the Interparliamentary Union. We were trying |