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reasonably complete knowledge of it because of the following activities:

I was an observer at the United Nations Conference in San Francisco in 1945 when the charter of the United Nations was formulated. I was for several years a member of the peace and law committee of the American Bar Association. I was for 2 years chairman of the section of international and comparative law of the American Bar Association, and for 2 years I was chairman of that section's United Nations committee.

The proposal that has been presented to you for consideration by the American Bar Association is opposed by a very great many of its members. In an effort to point up this opposition, I am appearing here today. I present myself as a symbol and representative of the hundreds of American lawyers who feel that both the American Bar Association proposal and the one submitted by Senator Bricker are contrary to the best interests of our citizens and our Nation.

It is extremely important for you to realize and constantly bear in mind that this proposal does not come to you from the Bar Association with the recommendation that you adopt it; not at all. The official action of the Bar Association was incorporated in the resolution which was adopted last February by the house of delegates, which is the only body that is authorized to speak officially for the association. The exact text of the resolution that was adopted by house of delegates is as follows (reading]:

Resolved, That the American Bar Association recommends to the Congress of the United States for consideration an amendment to the Constitution of the United States in respect of the treaty-making power, reading as follows:

“A provision of a treaty which conflicts with any provision of this Constitution shall not be of any force or effect. A treaty shall become effective as internal law in the United States only through legislation by Congress which it could enact under its delegated powers in the absence of such treaty."

This constitutional amendment, submitted thus to you for your consideration, does not have the support or endorsement of the association's section of international and comparative law.

Senator HENDRICKSON. Just a minute, Mr. Tillett. Is that the section to which my good friend Amos Peazley belongs?

Mr. TILLETT. Yes, sir; he is a member of that section.

Senator HENDRICKSON. He is from my own county in New Jersey, and I wondered.

Mr. TILLETT. He is a valuable member of our section. The absence of that support and endorsement is impressive and weakens the proposal when you realize that the members of that section do, whereas the members of the house of delegates generally do not, have a special interest in and knowledge of matters of international concern.

Mr. SMITHEY. Was this proposal debated at the convention of the house of delegates?

Mr. TILLETT. Yes, sir.

Mr. SMITHEY. Were members of the section of international and comparative law given an opportunity to speak?

Mr. TILLETT. They were.

Mr. SMITHEY. And after they were given an opportunity to speak, the bar association then adopted the resolution which you read just a moment ago?

Mr. TILLETT. Yes; presented it to you for consideration.


Senator HENDRICKSON. Was it adopted by a roll-call vote?

Mr. TILLETT. I don't know. I wasn't present personally so I can't answer.

Senator HENDRICKSON. The record would speak for itself; would it not?

Mr. TILLETT. Yes, sir.

The section of international and comparative law of the American Bar Association is made up not only of lawyers who practice international law professionally but also it is made up of general practitioners who feel that they can help in solving the problems of an effective and free world order by participating in the committee work of the section and its democratically conducted forums where they have an opportunity to present ideas that they have which will aid in building the structure of enduring peace.

Senator HENDRICKSON. How many members do you have in that section?

Mr. TILLETT. From 300 to 1,000.
Senator HENDRICKSON. That is Nation-wide ?

Mr. TILLETT. And I want to impress the fact that it is a democratically conducted section. It is the only phase where the rank-and-file lawyers shall participate. The peace and law committee is not a democratically elected group, but it is appointed by the president. So the difference between the section on international and comparative law and the peace and law is that the one is a representative group of those lawyers who have an interest in that sort of thing, whereas the peace and law committee is appointed by the president, and there is no veto.

Senator HENDRICKSON. How many members on that committee, the latter committee?

Mr. TILLETT. The latter committee. I don't know ; five, seven or nine, I forget which. At this point, Senator, I should like to say that there is another citizen of our country who would be here today testifying against these proposals if he were not, at the moment, absent in South America. I refer to Judge John J. Parker, one of the most distinguished judges and constitutional students in the country and a man who has had rare opportunities to obtain a world viewpoint. He is an active member of the section of international and comparative law. Last winter, when members of the section were conferring by correspondence about the American Bar Association proposal which is before you, he wrote a letter to Mr. Lyman M. Tondel, Jr., the chairman of the section, expressing his opposition to the bar association proposal as well as to the resolution submitted by Senator Bricker, as follows: Mr. LYMAN M. TONDEL, Jr.,

New York 5, N. Y. DEAR MR. TONDEL: Answering your letter of recent date, I will say that I am strongly opposed to the amendment to the Constitution proposed by the committee on peace and law. I am likewise opposed to the amendment proposed by Senator Bricker. The only hope of staying the hand of Russian communism is for this Nation to take the leadership of the free nations of the world; and it will be out of the question for us to exercise this leadership if we hamstring the treaty-making power in the way proposed by these amendments. It is absurd at any time to limit the treaty-making power by the provisions of the internal law of a nation. It would be suicidal to do so in this period of danger, when so much depends upon the leadership of this country in international affairs. There is no danger that the President and the two-thirds of the Senate will impair the safeguards of constitutional liberty embodied in the Constitution. The danger is that we may fail in the responsibility of world leadership. Effective dealing with foreign nations will be out of the question if every treaty is made under the threat that it may be declared void if thought by the courts to conflict with the division of powers established by our Constitution between State and Federal Governments.

This is a time when leadership of the bar is needed by the country. We ought not lead in the wrong direction. Sincerely yours,

JOHN J. PARKER. Senator HENDRICKSON. May I ask, Who is Mr. Tondel?

Mr. TILLETT. He is the chairman of the section on international and comparative law.

Senator HENDRICKSON. I assumed that was the case, but I wanted the record to show that.

Mr. TILLETT. Yes, sir.

Senator HENDRICKSON. And you came into possession of that letter through Mr. Tondel?

Mr. TILLETT. As a matter of fact, Judge Parker sent a copy to me, and I obtained his consent to put it into the record.

The American Bar Association has repeatedly, through official action of its house of delegates and otherwise, advocated that world law be substituted for armed forces, and that adjudications according to international law take the place of war in the settlement of international disputes. A few years ago the association was one of the leaders in the successful movement to cause this country to submit itself to the jurisdiction of the International Court of Justice. It is, I consider, a monstrous reversal of the association's hitherto noble and statesmanlike attitude toward world peace now to submit, even if only for consideration, a proposal to amend the Constitution in a manner which will, in effect, seriously handicap this Nation's power by treaties to add to the body of international law. Of what use is it for this country to adhere to the statute of the World Court and then tie its own hands as far as participating in the movement to enlarge the scope of world law is concerned ?

Centuries of bloodshed testify to the ineffectiveness of force and armament to bring about enduring peace. The world is looking to its lawyers, lawmakers, and treaty makers to build the structure of enduring peace. This can be done only by carefully thought-out treaties, cautiously and bit by bit bestowing power upon skillfully constructed international institutions or by strengthening the United Nations or by both methods.

The proposal submitted by Senator Bricker will effectively and completely tie the hands of the President and Senate of the United States so that they cannot, by treaties, participate in such an enterprise. And while the wording of the proposal submitted for consideration by the American Bar Association is not as explicit in this regard as the proposal submitted by Senator Bricker, the design, intent, and ultimate effect of that proposal is the same.

A sense of history, such as that which the founding fathers had, would certainly indicate that in the world of the future our country must internationally be capable of adapting itself to any and every opportunity to build the structure of enduring peace that arises. These proposals that you are considering would, if adopted, grievously cripple our country in its conduct of foreign affairs at a time when history has thrust upon us the leadership of the free world and when such leadership is indispensable to our survival.

Not only is the design and effect of the bar association proposal calamitous, but its detail is fallacious and deficient.

The first sentence of the association's proposal commits the unpardonable sin in constitution drafting of ambiguity. That sentence reads as follows: A provision of a treaty which conflicts with any provision of this Constitution shall not be of any force or effect.

Who knows or can say with certainty how broadly or how narrowly the word "conflicts” in that sentence will be construed by future decision makers?

Senator HENDRICKSON. Do you feel that a treaty should conflict with the Constitution of the United States?

Mr. TILLETT. It depends on what the word “conflict” means. For example, before the treaty with Canada regarding migratory fowl was made, it was not within the power of Congress to control migratory fowl. Now, then, query: Since the Constitution did not give to the Congress the power to deal with migratory fowl, was a treaty about migratory fowl in conflict with the Constitution? I am now challenging the accuracy of that word "conflicts.” I think it is ambiguous. For example, I think that the first section of Senator Bricker's proposal is clear as crystal. If you do want to adopt something to that end, then obviously you should knowingly not adopt this ambiguous sentence, but should adopt Senator Bricker's section 1.

Senator HENDRICKSON. I am sorry, I did not know you were coming to that. Very shortly now, while we are discussing this matter informally, I will have to leave again. You will understand if I suspend for a while.

Mr. TILLETT. Yes, sir.
Senator HENDRICKSON. When I said to go away, I meant the Senate.

Mr. TILLETT. There are many areas within which treaties will have to be made in the future in building up the body of international law which are not covered by express delegation of authority in the Constitution. Will future decision makers hold that treaties within such areas are in conflict with the Constitution? Who knows? In other words, the inclusion of this ambiguous sentence in our Constitution will leave in doubt the validity of many treaties until, by the slow process of litigation, their validity or nonvalidity has been determined by the Supreme Court of the United States. Furthermore, the President and the Senate, in connection with the negotiation and ratification of future treaties, will be sincerely uncertain as to whether or not they are authorized to commit the country to treaties which might not be deemed to be within their expressly delegated power.

If the only objective of this sentence is to protect against treaties which might impinge upon the Bill of Rights, the sentence is totally unnecessary because it is clear that the treaty power is just as much subject to the limitations of the Constitution as any other power granted. The statement made by Justice Field cannot be successfully challenged where he said:

It would not be contended that it [the treaty-making power] extends so far as to authorize what the Constitution forbids.


It is fantastic to assume that a Supreme Court that would be restrained by the safeguards already in the Constitution would pay any attention to this ambiguous language proposed by the bar association. The question has been asked that if you think the proposals as Senator Bricker's proposals are unnecessary, because the Constitution already protects the rights of the citizen, what objection can you have in buttoning the thing up? There are many answers to this question, but one answer I should like to put forward is this: In order for this unnecessary clause to be written into the Constitution, it will have to be submitted to the legislatures of all of the States in order for them to vote in favor of the amendment. It will be necessary to convince them that their constitutional liberties are in danger of being bartered away by international action. The result will, I think, be unnecessary to arouse and frighten the people away from internationalism and further and further to isolationism. I think that this will be fatal to the cause of intelligent, thoughtful, and wholesome world cooperation. Thus, the movement to write this unnecessary clause to the Constitution will produce end results that its own proponents will concede undersirable.

The second sentence in the American Bar Association proposal, if included in our Constitution, would create a situation which can, in all kindness, be characterized only as a monstrous absurdity. This sentence reads as follows:

A treaty shall become effective and internal law in the United States only through legislation by (ongress which it could enact under its delegated power in the absence of such treaty.

The meaning and effect of the inclusion of that sentence in our Constitution would be that a substantial number of treaties could not become effective until and unless referred to, and ratified by, the legislatures of several States. The inability, not to say incompetence, of the legislatures of the several States to deal with international matters is too well known to require argument here today. In my State, within a few days, we will hold a primary election for the selection of candidates for the legislature. No one knows what the attitudes of the various candidates for the legislature are with respect to foreign affairs. And yet, if it becomes a fact that a part of the treaty-making power shall be vested in our legislatures, it will become important and necessary, in voting on legislative candidates, to know what their attitudes are with respect to international matters.

Mr. SMITIEY. I notice that the sentence which you quoted from the bar recommendation related to internal law in the United States and that your sentence which follows later mentions international matter: the legislatures of the several States to deal with international matters

Would you explain that, please?

Mr. TILLETT. May I read these two next paragraphs? Then I come to an illustration in a minute and I will be able to explain it a little more clearly.

Mr. SMITHEY. Certainly.

Mr. TILLETT. Furthermore, legislatures meet usually for only 60 or 90 days, their calendars are overwhelmingly crowded with matters of State and local concern and there would never be the time or inclination on the part of the members of State legislatures to sub

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