thing legislatively, after the entry into force of a treaty, possesses, if there is a contention between them, a prior authority over that embodied in the treaty.

Senator FERGUSON. It is your contention, then, that a legislative act can repeal a treaty?

Mr. BRUCE. Not repeal it. I will have to call on the legal adviser of the State Department on that one.

Senator FERGUSON. I want to know if that is your contention.

Mr. FISHER. It is the view of the Department, as I understand it, sir, that a legislative act entered into subsequent to a treaty is binding as the law of the land.

There is a legislative presumption expressed by Justice Brandeis in the case of Cook v. United States that, absent an indication that the Congress intended so to do

Senator FERGUSON. Suppose they expressly did it?

Mr. FISHER. If the Congress expressly made it clear, to override the presumption I pointed out, that I think you understand, sir— Senator FERGUSON. Yes, I understand.

Mr. FISHER. That we intend this to be the law of the land irrespective of any prior treaty, while that does not excuse the United States in an international forum from the charge of treaty violation

Senator FERGUSON. So if we gave an international court the right to try our citizens, then that would not be revoked by any act of Congress.

Mr. FISHER. May I finish the answer to the question, sir?

The question is that insofar as the law of the land goes, insofar as the law to be enforced in the courts of the United States goes, the subsequent act of Congress prevails, subject only to the prior indication that in the absence of clear evidence you assume that the Congress intended to comply with the prior treaty.

But if the Congress says, "This is what we intend to govern the conduct of American citizens, and we believe this is the law to be enforced in the courts of the United States, irrespective of any prior international commitment," there is in my judgment no question but what that law will be enforced in the courts of the United States.

Senator SMITH. You presuppose, of course, that this is a legislative enactment, which would require a majority of both Houses and the signature of the President on the act?

Mr. FISHER. That is right, sir.

Senator SMITH. Therefore, the President still has power by authority of his veto to thwart the will of the legislative branch of the Government. Would that not be true?

Mr. FISHER. That is true, but I would assume that in terms of legislation, the function of veto is one which the constitutional framers had in mind when they enacted the Constitution.

Senator SMITH. Of course, it might be determined as to whether that would be an attack on the legislative process.

Mr. FISHER. It might be determined by a variety of factors, sir. Senator HENDRICKSON. If that is the law, why not spell it out constitutionally?

Mr. FISHER. I think it is so clearly accepted by the Supreme Court, sir. I haven't got the Cook case in front of me, but I am sure that reading the cases it cites

Senator SMITH. Will you let the committee get your identification, for the benefit of the reporter?

Mr. FISHER. My name is Adrian Fisher, sir, and I am the legal adviser of the Department of State.

Senator SMITH. Go ahead, Senator. Excuse me.

Senator HENDRICKSON. That is all right. I just wanted an answer to that question.

Mr. BRUCE. This matter is covered, not quite as extensively, later on in this paper, sir.

Senator SMITH. I wonder, to center our attention on what we really are talking about, whether it might not be appropriate to read the first three sections we are talking about before we get to the executive agreement.

This is the proposal:

SECTION 1. No treaty or executive agreement shall be made respecting the rights of citizens of the United States protected by this Constitution, or abridging or prohibiting the free exercise thereof.

Now, in simple language that just means that, as to the rights which American citizens now have, as citizens, and protected by the Constitution, no treaty or executive agreement shall be made abridging or prohibiting the exercise of those rights.

Now, what is wrong with that language right there?

Mr. BRUCE. Mr. Chairman, I think maybe I had better skip some of the intervening language and take off at that point, to state what we believe is wrong with what appears to be simple language.

Senator SMITH. That is what I want to get at.

Mr. BRUCE. So suppose I just go a little ahead of my testimony.
Senator SMITH. We do not want to interrupt your process.
Mr. BRUCE. No, sir. This is very helpful.

Senator SMITH. If you prefer, we can go back and let you proceed as you intended.

Mr. BRUCE. No, sir; because this will be laid before you in toto, and maybe it will save time and be more pertinent if we take up this matter

now.

The first difficulty is caused by the phrase "respecting the rights of citizens of the United States protected by the Constitution." The rights of citizens of the United States protected by the Constitution include not only the traditional rights of free speech, free press, and so forth, but also economic rights, such as the right to engage in a business or profession and to own property. The vague word "respecting" leaves the proposed amendment open to the interpretation that it is meant to cover treaties dealing with the exercise of these rights anywhere, not merely with their exercise in the United States by citizens of the United States. As an example of the effect which this would have, let us look at article I of the Treaty of Friendship, Commerce, and Navigation between the United States and Italy which entered into force in 1949. Paragraph 2 of article I provides that the nationals of either State shall, within the territories of the other State, be permitted, without interference, to exercise in conformity with the applicable laws and regulations, the following rights and privileges upon terms no less favorable than those now or hereafter accorded to nationals of the other State:

(a) To engage in commerce, manufacturing, processing, financial, scientific, educational, religious, philanthrophic, and professional activities except the practice of law;

(b) To acquire, own, erect or lease, and occupy appropriate buildings and to lease appropriate lands, for residential, commercial, manufacturing, processing, financial, professional, scientific, educational, religious, philanthropic, and mortuary purposes--

that is in reference to the treaty of friendship, commerce, and navigation.

I would say that the above treaty certainly is one "respecting the rights of citizens of the United States protected by the Constitution," although it was intended to aid our citizens in carrying on foreign trade and commercial activities in Italy. As section 1 of the proposed amendment is drafted, we could not enter into treaties of this charac

ter.

The subcommittee will recall that a somewhat similar treaty of friendship, commerce and navigation came into force in 1950 between the United States and Ireland. The Senate Foreign Relations Committee now has before it for consideration similar treaties of friendship, commerce, and navigation with Colombia, Denmark, and Greece. These treaties are all intended to replace very old treaties of friendship and commerce with these countries, all concluded over a hundred years ago, so as to modernize the basis upon which our citizens can engage in business and occupations abroad and receive protection of their persons and property abroad. Section 1 of the proposed amendment would prohibit this sort of treaty.

The point that we are making there, sir, is that this would be a prohibition against the application of treaty provisions not only affecting citizens in this country, but the rights of our citizens in foreign countries, the protection of which has been asserted by the entry into treaty relationships with foreign governments in literally dozens of cases, and which have given rise to an infinite complexity of legal disputes, discussions, and what not, until the treaty has finally settled the rights of American citizens, for example, owning property abroad, and the rights of foreign citizens owning property in this country.

Senator SMITH. The way I read that is this:

No treaty or executive agreement shall be made respecting the rights of citizens of the United States protected by this Constitution

Well, now, why should not the rights of any citizen protected by the Constitution be prevented from being infringed upon by a treaty or by

an executive agreement?

As I understand, you object to the word "respecting," but I call your attention to the language of the first amendment to the Constitution. And there they use the very word you are objecting to: "Congress shall make no law respecting an establishment of religion." Now, they use the word "respecting" in much the same sense that I understand the meaning to be here.

Of course, I may be wrong in my interpretation as to the word "respecting." But why is it that the word "respecting" should not be treated in the same manner as it was treated in the first amendment to the Constitution?

Mr. BRUCE. Mr. Chairman, with your permission, that is a question to which the legal adviser has addressed himself, and if I may be permitted, I would like him to answer it.

Mr. FISHER. Mr. Chairman, the view on that which we submit is this: It would appear to me that in enacting the first amendment the

purpose of the enacters was to completely divorce, the church and state. I know when you make that broad statement you get lots of questions that come as a result of it. But the general policy, they wanted to say, was that on the whole the church and the state should stay apart. And for that reason a loose word like "respecting" is a pretty good word to use in language of prohibition.

In other words, this is designed to indicate there should not be any relationship.

I do not believe that the problem is analogous. I do not believe, for example, that we should say that it is not a function of the foreign policy of the United States to try to protect, where that is possible, rights of this kind.

Now, where the purpose is to have a complete divorcement, it seems to me the word "respecting" is a word well taken. Where the purpose is only to insure that certain rights will not be curtailed, it would appear to me that the word "respecting" is fraught both with danger and possible mischief. I use the word not in a purposeful sense, but in a sense of danger.

Senator SMITH. You mean that when you say "respecting the rights of citizens" you do not think that is a proper use of language to describe having nothing done that would affect the rights of citizens? What other word would you suggest instead of "respecting" there? Mr. FISHER. Well, sir, later in the statement the question is dealt with, and I think with the chairman's permission we might come to that in order.

As to what the problem would be if the suggestion that I understand Judge Phillips made, that the word "respecting" be eliminated and either the language of the bar association amendment or the language of this amendment, merely relating to "not adversely affecting," should be kept, I think that is dealt with in about two pages, sir.

Senator SMITH. As I understand it, it is your contention, then, that it ought to be possible and permissible for a treaty or an executive agreement to be made that did affect the rights of citizens protected by the Constitution, to change those rights?

Mr. FISHER. Sir, when you say "respecting the rights" and say "change those rights," it appears to me you are saying two different things.

Senator SMITH. Well, of course, I am saying two different things. Mr. FISHER. It seems to me that we should have the right to enter into treaties which enforce and support

Senator SMITH. Now, when you say "we," whom do you mean by "we"?

Mr. FISHER. The United States Government acting by the procedure set up by the Constitution, which is the Executive negotiating a treaty ratified by the advice and consent of two-thirds of the Senate.

Senator HENDRICKSON. Mr. Fisher, I take it from your remarks that you prefer the language, if you had a choice to make, of the bar association resolution?

Mr. FISHER. Sir, that is dealt within such detail that I would rather let the statement speak for itself. That is not to give you a fair answer, sir, but I am afraid that attempting to do so would cut across a rather elaborate presentation of it.

Mr. BRUCE. Heading into what I think you would have in mind, the Genocide Convention and the human-rights business, which is cov

ered in quite a lot of detail here, I assume that is part of what you had in mind?

Senator SMITH. I assumed we would eventually get around to that. But I was going to ask Mr. Fisher, then:

You prefer the American Bar Association provision?

Mr. FISHER. No, sir. In this particular context there are three separate questions, it seems to me, which are dealt with in the statement in some detail. That is, whether or not an amendment should use the word "respecting" the rights of American citizens; the question as to whether or not an amendment limiting itself to the provisions of "adversely affecting" rather than "respecting" would cut across the doctrine most recently expressed by the Supreme Court in the opinion by Justice Butler, I believe, in Asakura versus Seattle; and thirdly, the question of whether or not, in view of the way that doctrine was stated by Justice Butier, a constitutional amendment which is phrased in the terms that the American Bar Association amendment is phrased in does not go considerably further than is necessary; or whether or not, in view of the way Mr. Justice Butler phrased this doctrine, any amendment at all is necessary.

Those seem to me to be a series of separate questions.

Senator SMITH. You are referring to Mr. Justice Pierce Butler?
Mr. FISHER. Yes, sir.

Mr. BRUCE. And frankly, we prefer no amendment.

Senator HENDRICKSON. Yes; that is obvious.

Mr. BRUCE. I don't know whether it is.

Senator SMITH. All right.

Now, the next one:

SEC. 2. No treaty or executive agreement shall vest in any international -organization or in any foreign power any of the legislative, executive, or judicial powers vested by this Constitution in the Congress, the President, and in the courts of the United States, respectively.

Now, that seems to me to be one I cannot answer, but I am trying to see what sort of answer you would give, if you contend that a treaty or an executive agreement might be made that would alter or abridge the laws of the United States or the Constitution, or the laws of the several States.

Now, just what is your view? You say we should allow an international organization or a foreign power to have the power to perform a function of that sort that would be contrary to the Constitution of the United States, as set forth in section 2?

Mr. BRUCE. Well, we consider that the provisions in that particular section are extremely unclear. And there are two different things, two different arguments, that one might present against it.

We do not believe that its enactment would be useful or would contribute to the cure of the ills, whether real or fancied, which are in the minds of the framers of this resolution. And if you will permit me, I will deal with that, sir.

Senator SMITH. All right, sir.

Mr. BRUCE. Section 2 of the proposed constitutional amendment provides the language that you have read.

The implications of this proposed section are indeed unclear. One possibility is that the section has been proposed because the Constitution as it stands today permits the transfer by treaty of legislative,