"The treaty power, as expressed in the Constitution, is in terms unlimited except by those restraints which are found in that instrument against the action of the Government or of its departments, and those arising from the nature of the Government itself and of that of the States. It would not be contended that it extends so far as to authorize what the Constitution forbids, or a change in the character of the Government or in that of one of the States, or a cession of any portion of the territory of the latter, without its consent (Fort Leavenworth Railroad Co. v. Lowe, 114 U. S. 525, 541). But with these exceptions, it is not perceived that there is any limit to the questions which can be adjusted touching any matter which is properly the subject of negotiation with a foreign country (Ware v. Hylton, 3 Dall. 199; Chirac v. Chirac, 2 Wheat. 259; Hauenstein v. Lynham, 100 U. S. 483; 8 Opinions Attys. Gen. 417; The People v. Gerke, 5 California 381)."

9923

Similar statements have been repeatedly made. (See, for example, Doe, et al. v. Braden, 16 How, 635, 657) ("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."); The Cherokee Tobacco, 11 Wall. 616, 620-621 ("It need hardly be said that a treaty cannot change the Constitution or be held valid if it be in violation of that instrument. This results from the nature and fundamental principles of our Government."); Missouri v. Holland, 252 U. S. 416, 433 ("We do not mean to imply that there are no qualifications on the treaty-making power." "The treaty in question does not contravene any prohibitory words to be found in the Constitution."); United States v. Minnesota, 270 U. S. 181, 208 ("The decisions of this Court generally have regarded treaties as on much the same plane as acts of Congress, and as usually subject to the general limitations in the Constitution.")." See, to the same effect, Jones v. Walker, Fed. Cas. No. 7,507, 13 Fed. Cas. at p. 1062; Amaya, et al. v. Stanolind Oil & Gas Co., 158 F. 2d 554, 556 (C. A. 5), certiorari denied, 331 U. S. 808; United States v. Thompson, 258 Fed. 257, 268 (E. D. Ark); Indemnity Insurance Co. of North America v. Pan American Airways, 58 F. Supp. 338, 339, 340 (S. D. N. Y.).)

Specific issues involving a claim of contravention of express constitutional guaranties have not been lacking. Thus, in Prevost v. Greneaux (19 How. 1, 7 (1856)) the Court held that a tax which had accrued to a State was not divested by a subsequent treaty, stating "certainly a treaty, subsequently made by the United States with France, could not divest rights of property already vested in the State." (Compare United States v. Minnesota, 270 U. S. 181, 208, 209.) In Brown v. Duchesne (19 How. 183, 197) the Court stated that a treaty could not provide for the taking of private property without just compensation. In In re Ross (140 U. S. 453) a contention was made that a treaty and implementing statute, providing for trial by a consular court of crimes committed by American citizens in Japan violated various constitutional guaranties of fair trial. The Court rejected the contention, not by stating that the treaty was above the Constitution, but by holding that the constitutional guaranties did not extend to crimes committed abroad. Extradition of American citizens has been sustained on like reasoning (Neely v. Henkel (No. 1), 180 U. S. 109, 122-123). Similarly, in Missouri v. Holland (252 U. S. 416) the contention that a treaty and implementing statute violated the tenth amendment was rejected on the ground that since the treaty power was expressly delegated to the Federal Government, its exercise did not infringe the reservation to States of powers "not delegated." (See also Stutz v. Bureau of Narcotics, 56 F. Supp. 810 (N. D. Cal.).)

25

It has been suggested, however, that there is doubt as to the power of the courts to review the validity of a treaty. The suggestion is rested in part on

23 The framers of the Constitution were equally explicit. Thus, to Patrick Henry's fears of treaties "infringing our liberties" (3 Elliott's Debates 503). Nicholas responded, at the Virginia convention, that no treaty could be made which was repugnant to the spirit of the Constitution (id. 507). Similarly, to Abbott's fears of a treaty establishing the Roman Catholic religion (4 Elliott's Debates 192), Iredell responded, at the North Carolina convention, that "the power to make treaties can never be supposed to include a right to establish a foreign religion among ourselves, though it might authorite a toleration of others" (id., 194).

24 Compare Tucker v. Alexandroff (183 U. S. 424, 437), stating that treaties should be liberally construed "so far as it can be done without the sacrifice of individual rights or those principles of personal liberty which lie at the foundation of our jurisprudence."

25 Neely v. Henkel involved, not a treaty, but a statute which provided for extradition either pursuant to extradition treaties or of offenses committed in foreign territory occupied by United States forces. The principles there stated have been applied in cases under extradition treaties. (See Wright v. Henkel, 190 U. S. 40, 53; Charlton v. Kelly, 229 U. S. 447.)

the fact that article VI of the Constitution declares that laws made "in Pur suance" of the Constitution and treaties made "under the Authority of the United States" to be the supreme law of the land. This difference in phraseology is readily explained by the fact that the framers intended that treaties "made, or which shall be made" to be binding; that is, they wanted the supremacy clause to extend not only to treaties which might in the future be made under the new constitution, but also to treaties which had in the past been made under the Articles of Confederation. To have limited the clause to treaties made "in Pursuance" of the new constitution would have defeated that purpose.

26

It would seem clear that no implication can be drawn from this that treaties are subject to no constitutional limitation. The Supreme Court has stated that "Of course, all treaties and statutes of the United States are based on the Constitution" (United States v. Minnesota, 270 U. S. 181, 207). Indeed, treaties are generally of the same dignity as statutes, and can be modified or repealed by a Federal statute so far as their domestic effect is concerned (Head Money Cases, 112 U. S. 580, 597-599; Chae Chan Ping v. United States, 130 U. S. 581, 600-603; see Moser v. United States, 341 U. S. 41, 45). Viewed as an international obligation, a treaty is, of course, beyond judicial control (Head Money Cases, supra, 112 U. S. at 598). But to the extent that a treaty is self-executing so as to become the law of the land, "it can be deemed in that particular only the equivalent of a legislative act” (Chae Chan Ping v. United States, 130 U. S. 581, 600; see United States v. Minnesota, 270 U. S. 181, 208)."

It would certainly be anomalous if the courts were to hold that, although they could deny enforcement of a treaty on the ground that it was inconsistent with a later act of Congress, they were without power to do so on the ground of inconsistency with the Constitution. The power of Federal courts to invalidate acts of Congress as contrary to the Constitution was implied from the propositions that a statute could not overrule the Constitution, that the Federal judiciary had jurisdiction over cases arising under the Constitution, and that it was sworn to uphold the Constitution (Marbury v. Madison, 1 Cranch 137, 176-181). The same reasoning applies to treaties (Cf. Taylor v. Morton, Fed. Case No. 13,799, 23 Fed. Cases at 785 (C. C. D. Mass., 1855)). But, in any event, the decisions cited above show that the power to examine into the constitutional validity of treaties has almost invariably been assumed.20

28

The further suggestion has been made that there is no constitutional protection against a treaty which impairs rights of free speech, press, or religion. This is rested on the fact that the first amendment, unlike the rest of the Bill of Rights, refers only to Congress; "Congress shall make no law respecting an establishment of religion * * *"" etc. However, the amendment has not been regarded as limited to action of Congress, but rather has been assumed to prohibit any action by the Federal Government impairing freedom of speech, press, or religion or the rights of assembly and petition. Thus it has been assumed to apply to acts of a territorial legislature (Davis v. Beason, 133 U. S. 333) to orders of administrative agencies (National Broadcasting Co. v. United States, 319 U. S. 190, 226-227) and to judicial proceedings punishing for contempt of court (Toledo Newspaper Co. v. United States, 247 U. S. 402, 419-420 (overruled on -other grounds), Nye v. United States, 313 U. S. 33, 47–52) ). In the cases arising

26 The only Supreme Court decision of which we are aware that makes any reference to this difference in phraseology is Missouri v. Holland (252 U. S. 416, 433). In the very next sentence, Justice Holmes states "We do not mean to imply that there are no qualifications to the treaty-making power," and a few sentences later he points out that "The treaty in question does not contravene any prohibitory words to be found in the Constitution."

27 Compare statements that a treaty, duly executed and ratified, "becomes the supreme law of the land, and the courts can no more go behind it for the purpose of annulling its effect and operation, than they can behind an act of Congress" (e. g., Fellows v. Blacksmith, 19 How. 366, 372 (1856)).

28 Chief Justice Marshall referred only incidentally to the provision that statutes made "in pursuance of" the Constitution were to be the supreme law. We have pointed out above the reasons why a like phrase was not used in the case of treaties.

29 The A. B. A. committee report suggests that Missouri v. Holland (252 U. S. 416) and United States v. Curtiss-Wright Corporation (299 U. S. 304, 316-319) "go in the opposite direction of an unlimited treaty power." Missouri v. Holland clearly states that there are constitutional limitations on the treaty power and that a treaty may not violate an express prohibition of the Constitution. The Curtiss-Wright case was in no sense concerned with the question whether a treaty could violate constitutional prohibitions. Mention might perhaps also be made of Ware v. Hylton (3 Dall. 199, 237), in which Justice Chase expressed doubts as to his power to declare a treaty void. That decision, however, was rendered 7 years before Marbury v. Madison, which for the first time established the power of the Court to declare acts of Congress unconstitutional.

under the President's loyalty order, Executive Order No. 9835, the first amendment was assumed to be applicable to Presidential action (Joint Anti-Fascist Committee v. McGrath, 341 U. S. 123, 135–136, 143, 199–200; Joint Anti-Fascist Refugee Committee v. Clark, 177 F. 2d 79, 84, 87-88 (C. A. D. C.); Bailey v. Richardson, 182 F. 2d 46, 59–60, 71–74 (C. A. D. C.), affirmed by an equally divided Court, 341 U. S. 918). And in Public Utilities Commission v. Pollak, Nos. 224 and 295, October term, 1951 (20 U. S. Law Week 4343), the Court held that an order of the Public Utilities Commission of the District of Columbia "amounts to sufficient Federal Government action to make the first and fifth amendments applicable thereto," (20 U. S. Law Week 4346), and stressed that those amendments, although not applying to private persons, concededly restricted "the Federal Government" (20 U. S. Law Week 4345).

In addition, it should be noted that the protections of the first amendment have all been held to be part of the "due process" which the fourteenth amendment guarantees from invasion by the States (Gitlow v. New York, 268 U. S. 652 (freedom of speech); Near v. Minnesota, 283 U. S. 697 (freedom of the press); Burstyn v. Wilson, No. 522, October term, 1951, 20 U. S. Law Week 4329 (same, movies); Murdock v. Pennsylvania, 319 U. S. 105, 108; McCollum v. Board of Education, 333 U. S. 203 (freedom of religion)). Hence they are presumably within the "due process" clause of the fifth amendment, which clearly prohibits governmental action of any sort. As Judge Edgerton stated in Joint Anti-Fascist Refugee Committee v. Clark (177 F. 2d 79, 87):

"Read literally, the first amendment of the Constitution forbids only Congress to abridge these freedoms. But as the due process clause of the fourteenth amendment extends the prohibition to all State action, the due process clause of the fifth must extend it to all Federal action."

No court, so far as we are aware, has ever held otherwise.

Accordingly, no amendment is needed to prevent abridgment by treaty or executive agreement of the essential liberties guaranteed by the first 10 amendments."

The first section of Senate Joint Resolution 130 would go further, however, and prohibit any treaty or executive agreement "respecting" rights guaranteed by the Constitution." The intention is, apparently, to exclude from the subject matter of treaties any rights guaranteed to citizens by the Constituion. In effect this is another way of saying that treaties shall not deal with rights of individuals at all. For almost every kind of individual right is, or can be asserted to be, a right guaranteed by the Constitution. For example, one of the constitutional guaranties is that property shall not be taken without just compensation. Although that right is protected in the United States, it is not given constitutional protection in many other countries. Presumably, a bilateral agreement or multilateral convenant in which each party pledged that it would not take private property except upon payment of just compensation would be invalid under this provision because it would be an agreement respecting rights guaranteed by the fifth amendment."2 Similarly, a number of the cases involving discrimination against aliens rested on claims of violation both of

32

30 Indeed, adoption of this much of the proposed amendment, in its present form, might actually lessen the protection available to civil liberties. Most of the provisions of the Bill of Rights afford protection to any "person." Adoption of an amendment prohibiting the impairment by treaty of the rights of "citizens" might be thought to create some implication that the rights of resident aliens, now protected by the Constitution, could legitimately be invaded by treaty.

31 While the first amendment declares that Congress shall make no law "respecting" an establishment of religion, it does not prohibit laws "respecting" freedom of speech, press, or assembly, and it has been repeatedly recognized that some limitations on these rights are proper and necessary. Thus, direct incitement to crime can generally be prohibited. (See Frohwerk v. United States, 249 U. S. 204, 206; Fox v. Washington, 236 U. S. 273: Giboney v. Empire Storage & Ice Co., 336 U. S. 490; Chaplinsky v. New Hampshire, 315 U. S. 568, 574.) Recently various acts restricting certain kinds of activities by Communists have been sustained on the ground that there was a sufficient "clear and present danger" of substantial harm to essential interests of the United States to warrant the incidental interference with freedom of speech which might be involved (e. g., American Communications Association v. Douds, 339 U. S. 382 (sec. 9 h of the Labor-Management Relations Act, 1947); Dennis v. United States, 341 U. S. 494 (Smith Act)). While the provisions there involved were held not to be unconstitutional abridgments of freedom of speech, it would seem very difficult to contend that they were not provisions "respecting" freedom of speech. Certainly, if any limitation on the treaty power is to be imposed, it should be imposed in terms no broader than those which the Constitution would apply to the legislative powers of Congress.

Similarly, the provision of section VI of the Peace Treaty of 1783 with Great Britain, guaranteeing against future confiscations of property of any person on account of the part he took in the Revolutionary War, would have been invalid.

the equal protection clause of the fourteenth amendment and of a treaty guaranteeing equality of treatment (e. g., Asakura v. Seattle, 265 U. S. 332, 340). Theproposed amendment would cast serious doubt on the validity of all such treaties, and hence on the ability of our Government, by treaty, to gain for its citizens abroad rights which our Constitution confers on aliens in the United States.

The United States has not in the past felt precluded from attempts, by treaties, to secure for its citizens abroad protection for essential civil liberties which our Constitution guarantees them at home. There are, for example, the provisions of the treaty with the Netherlands of 1782, and many other treaties, guaranteeing the subjects and inhabitants of each party "entire and perfect liberty of conscience." Treaty provisions protecting citizens of each country from arbitrary searches of their houses and paper are also common (e. g., Treaty With the Two> Sicilies, December 1, 1845, 9 Stat. 833, 837, art. VI). Article 5 of the Convention Regarding the Status of Aliens, of February 20, 1928 (46 Stat. 2753, 2754), requires the signatories (most of the American Republics) to extend to foreigners within their borders "all individual guaranties" extended to their own nationals, and the enjoyment of "essential civil rights." Mention may also be made of the International Slavery Convention of September 25, 1926 (46 Stat. 2185), pledging the parties to take all necessary measures to abolish slavery in all its forms, and to prevent compulsory or forced labor from developing into conditions analogous to slavery, and thus covering some of the same ground as that covered by the fifteenth amendment and Federal antipeonage statutes implementing it. Additional examples could be cited in large numbers.

It should be noted that the proposed amendment apparently would forbid absolutely any treaty respecting these rights. It would do so even though the treaty in no way would disturb existing domestic laws but merely require those nations who have not already done so to enact measures securing certain minimum rights. It would thus preclude the United States from using its moral force and leadership to endeavor to secure greater respect abroad for the liberties which are already protected at home. Every nation has a legitimate concern with the protection of the liberties and properties of its citizens abroad. But the United States has a broader and deeper concern with the power to make treaties respect-ing human liberties.

The United States has had a long record of leadership in attempts to gain increased respect for human rights. By diplomatic protests against mistreatment of individuals by other nations, by entering into international conventions, and by its own example, it has sought to gain the widest possible international acceptance for the doctrines of human dignity and human liberty on which this Nation is based. It has done this not merely out of humanitarian motives but out of recognition that disregard for human liberties in any part of the world threatens those liberties elsewhere. One of the greatest threats to our national existence today is the fact that we live in a world which is half slave and half free. And so the United States has been one of the leading figures in the attempts within the United Nations to establish minimum codes for the protection of human rights, and for the prevention of crimes against individuals and against the laws of nations, such as the crime of genocide. In so doing, the representatives of the United States certainly would not knowingly advocate anything to reduce the protection of individual liberties within the United States, but in any event, the Constitution as it now stands would preclude any treaty from having the effect, however inadvertently, of impairing or abridging human liberties within the United States. Accordingly, any treaties and conventions relating to the subject of human rights into which the United States might enter could serve only to benefit the United States by increasing general respect for human liberties including liberties of American citizens abroad. There may, of course, be room for debate as to the merits or demerits of a particular treaty; those issues can be fully dealt with by the Senate in deciding whether or not to ratify it; and unless the treaty is by its terms to be self-executing, they can be dealt with by both Houses of Congress in deciding whether to enact implementing legislation. But a constitutional amendment which would prohibit the United States from dealing with the problems of human liberties at an international level, and which would deny to the United States powers of sovereignty possessed by every other nation, would certainly have the most damaging effects.

Section 2 of Senate Joint Resolution 130 would provide that no treaty or executive agreement shall vest in any international organization or foreign power any of the legislative, executive, or judicial power vested in Congress, the President, or the courts of the United States.

As we have already pointed out, it is clear that a treaty could not make a fundamental "change in the character of the government" (Geofroy v. Riggs, 133 U. S. 258, 267; see The Cherokee Tobacco, 11 Wall, 616, 620). But a specific amendment, such as that here proposed, might well be construed by the courts as intended to do something more than establish that obvious proposition. Thus it might cast doubt on many treaties relating to intergovernmental arrangements. For example, it would have rendered doubtful the validity of such provisions as that discussed in Wildenhus's case (120 U. S. 1, 17-18), in which the Court recognized that a treaty might confer on a foreign consular official criminal jurisdiction over matters which would otherwise be within the jurisdiction of applicable State courts. It might throw into question innumerable arrangements made by military authorities for joint command of military forces, such as the placing of American troops under the command of Marshal Foch in World War I, and the command arrangements made during World War II in which American troops found themselves under the command of British or other foreign officers who in turn were under the command of an American supreme commander. It might give rise to problems similar to those presented in West Virginia ex rel. Dyer v. Sims (341 U. S. 22), in which it was contended that an interstate compact to control pollution in the Ohio River system involved an improper delegation of governmental powers by a State to an interstate agency. Accordingly, we oppose that provision.

The American Bar Association proposal would place a different and even more destructive limitation on the treaty power. It would limit the effective scope of many treaties to those matters which are within the delegated legislative powers of Congress, by providing that no treaty could have effect as domestic law except through legislation enacted by Congress in the exercise of its delegated legislative powers.

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This proposal would result in a major change in our constitutional system, and in the relations between Federal and State Governments. As has been noted, the power to enter into treaties was granted by the Constitution without any express limitation as to its scope or as to the subject matter of possible treaties. The limitations which had existed under the Articles of Confederation were eliminated without discussion. At the convention, while there were suggestions that certain types of treaties, for example, treaties of peace, should receive a different procedural treatment, there was no suggestion that the treaty power be limited as to subject matter. The framers were primarily impressed with the necessity, for national survival, of an adequate and effective power to make, and to enforce within the States, whatever treaties seemed appropriate to facilitate the conduct of foreign relations. It should be emphasized that the treaty power was given to the Federal Government before it had any general legislative power. Thus, the Articles of Confederation conferred a broad treaty power, although in other respects the Federal Government had very limited powers and could merely deal with the States as sovereigns, having no powers of legislation with respect to individuals. And at the Constitutional Convention, it was generally agreed that the Federal Government should have the full and exclusive treaty power before any agreement was arrived at as to the scope of the legislative powers of Congress. The view of the framers is reflected in the letter from George Washington, dated September 17, 1787, transmitting the proposed Constitution to the Continental Congress (2 Farrand, Records of the Convention, 666-667):

84

"The friends of our country have long seen and desired that the power of making war, peace, and treaties, that of levying money and regulating commerce, and the corresponding executive and judicial authorities should be fully and effectually vested in the general government of the Union."

33 It may be noted that such a limitation would probably not affect many of the United Nations conventions to which reference has been made by a number of proponents of the amendments. Thus the subject matter of the Genocide Convention could presumably be dealt with by Congress in the exercise of its power to "define and punish Offenses against the Law of Nations" (art. 1, sec. 8, clause 10). Indeed, the convention was objected to on that very ground. Similarly the provisions of the Convention on Human Rights relating to civil and political rights and those of the Convention on Freedom of Information would, insofar as they affect State activities, seem to come within the power of Congress to enforce by legislation, the provisions of the fourteenth amend ment insofar as they affect Federal activities, of course, they would clearly be within Federal power.

34 Congress had the powers of peace and war, of establishing rules relating to captures, granting letters of marque and reprisal, regulating carriage, fixing standards of weight, and measures, regulating (with important linritations) the trade with the Indians, establishing post offices, and regulating the Armed Forces.