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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-Fasoist 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.se
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. 32 Similarly, a number of the cases involving discrimination against aliens rested on claims of violation both of
39 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 probibited. (See Frohwerk v. United States, 249 U. S. 204, 206; For 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 cssential 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 unconstitutionat 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). The proposed 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 TwoSicilies, 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 theInternational 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 theprotection 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 respecting 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 es 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 legis. lative powers."
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 a4 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):
“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 Offensus 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, estab. lishing post offices, and regulating the Armed Forces.
Accordingly, the Supreme Court has uniformly stated that, “the treaty power of the United States extends to all proper subjects of negotiation between our Government and the governments of other nations" (Geofroy v. Riggs, 133 U. S. 258, 266 (1890)). (See also Holmes v. Jennison, 14 Pet. 540, 569, (Opinion of Taney, Chief Justice) (1840); Holden v. Joy, 17 Wall. 211, 243 (1872); In re Ross, 140 U. S. 453, 463 (1891) ; Missouri v. Holland, 252 U. S. 416, 433-434 (1920); Asakura v. Seattle, 265 U. S. 332, 341 (1924); Santovincenzo v. Egan, 284 U. S. 30, 40 (1931).) Such treaties could have the force of domestic law if they were self-executing, or could be implemented by legislation under the “necessary and proper" clause.
In Missouri v. Holland (252 U. S. 416) the Court expressly rejected a contention that the United States could not by treaty and implementing act of Congress regulate the subject of migratory birds unless that subject came within the legislative powers delegated to Congress. As the Court stated (p. 433):
"It is obvious that there may be matters of the sharpest exigency for the national well-being that an act of Congress could not deal with but that a treaty followed by such an act could, and it is not lightly to be assumed that, in matters requiring national action, a power which must belong to and somewhere reside in every civilized government' is not to be found.”
That decision, however, merely made explicit what had long been implicit. Indeed, in none of the cases involving treaty provisions had any question been raised as to whether the provision was within the general powers of Congress to legislate; it was enough that the matter was an appropriate subject for inter; national negotiation.
Many of the commonest types of treaties would presumably be invalid if measured by the test of whether they came within the legislative powers of Congress. A few examples should suffice:
Treaties relating to the rights of aliens to own land and personality, to inherit property, and to transfer property by will or intestate succession--sustained in, for example, Chirac v. Chirac, (2 Wheat, 259), Hauenstein v. Lynham (100 U. S. 483), Santovincenzo v. Egan (284 U. S. 30).
Treaties relating to rights of aliens to engage in trade or business, as applied to a business having no interstate character-sustained in Asakura v. Seattle (265 U. S. 332) (pawnbroker).
Treaties of extradition—where the crime was a purely domestic one within the foreign state-for example, Matter of Metzger (5 How. 176, 187–188)
(forgery), Charlton v. Kelly (229 U. S. 447) (murder). This does not mean that the treaty power is a “Trojan horse" which can bring about an unintended “change in the balance between Federal and State power” (ABA committee report, p. 5). It means simply that one of the powers which the Constitution delegated to the Federal Government was the treaty power. As we have pointed out, the framers clearly understood that the treaty power was very broad in scope and could reach many matters which would otherwise be solely of State concern. Nevertheless they gave that power exclusively to the Federal Government. It is the proposed denial to the Federal Government of a large part of the treaty power, granted by the Constitution and repeatedly exercised since the beginning of the Republic, which would produce “a change in the balance between Federal and State power."
The reason why the treaty power is not and should not be limited to matters which would otherwise be within the legislative powers delegated to Congress is clear. In respect of general legislative powers, those powers not delegated to the Federal Government are reserved to and may be exercised by the States. Thus, there is no gap in powers. The power to make treaties is, however, expressly denied to the States by article I, section 10. Whenever a matter is an appropriate one for international negotiation and agreement, either the Federal Government must be capable of dealing with it by treaty, or the United States as a whole is lacking in an essential aspect of sovereignty and is seriously handicapped in its ability to deal with other nations. The point was well put by Attorney General Caleb Cushing, in 1857 (8 Op. Atty. Gen., 411, 415):
"The power, which the Constitution bestows on the President, with advice and consent of the Senate, to make treaties, is not only general in terms and without any express limitation, but it is accompanied with absolute prohibition of exercise of treaty power by the States. That is, in the matter of foreign negotiation, the States have conferred the whole of their power, in other words, all the treaty powers of sovereignty, on the United States. Thus, in the present case, if the power of negotiation be not in the United States, then it exists nowhere, and one great field of international relation, of negotiation, and of ordinary public and private interest, is closed up, as well against the United States as each and every one of the States. That is not a supposition to be accepted, unless it be forced upon us by considerations of overpowering cogency. Nay, it involves political impossibility. For, if one of the proper functions of sovereignty be thus utterly lost to us, then the people of the United States are but incompletely sovereignnot sovereign-nor in coequality of right with other admitted sovereignties of Europe and America." (See also Hauenstein v. Lynham, 100 U. S. 483, 490.)
35 Regulation of migratory birds would today probably be sustained under the commerce power. Indeed. Justice Holmes, in Missouri v. Holland, did not state or decide that it was not within the commerce power or other Federal powers.
The American Bar Association proposal seems more objectionable in this respect than others considered by the subcommittee. B. Proposals that treaties, after ratification by the Senate require approval of
both Houses of Congress Section 3 of Senate Joint Resolution 130 would provide that no treaty or executive agreement should alter or abridge the laws of the United States, or the Constitution or laws of several States, except to the extent that Congress should so provide by act or joint resolution. The American Bar Association proposal would go further and provide that, whether or not it is inconsistent with any State or Federal law, a treaty shall become effective as internal law in the United States only through legislation by Congress.
These proposals relate to what Alexander Hamilton described as “one of the best digested and most unexceptionable parts" of the plan of the Constitution (The Federalist, No. 75). The provision that treaties, which would have the force of laws, could be made by the President and Senate, was most fully con. sidered at the Federal Convention, and extensively discussed at the State ratifying conventions. Because treaties were to be laws, proposals to require concurrence of the House in the treaty-making process were submitted at the Federal Convention, at a number of the State ratifying conventions, and on a number of cccasions since the adoption of the Constitution. They have been uniformly rejected. The reasons for placing the treaty power in the President, with the advice and consent of two-thirds of the Senators present, have been fully stated in No. 75 of the Federalist papers, and shall not be repeated here.
The present proposals are particularly objectionable in that they would require two steps before a treaty could have domestic effect. A treaty would have to pass first the hurdle of approval by two-thirds of the Senate. Then it would have to be reconsidered by the Senate and approved by the House. As the memoranda submitted by the State Department point out, there does not appear to be any other jurisdiction in which two stages are required for a treaty to become effective. The delays and difficulties inherent in such a two-stage process would certainly tend to render other nations reluctant to enter into treaties with the United States.
It is not suggested that all treaties should be self-executing. In many instances, of course, they are not. But existing law does provide adequate means for participation by the House in cases where such participation is appropriate, without the necessity of a rigid requirement of such participation in all cases.
As the law now stands a treaty may, of its own force, be a law which "as much binds [the rights of parties litigating in court), and is as much to be regarded by the court, as an act of congress" (The Peggy, 1 Cranch 102, 110 (1801)). As such it may override any inconsistent provision of State constitutions and laws (Ware v. Hylton, 3 Dall. 199; Hauenstein v. Lynham, 100 U. S. 483), or of a muni pical ordinance (Asakura v. Seattle, 265 U. S. 332). And it has an equal status with an act of Congress so that, while so far as possible the two will be construed to avoid inconsistency (United States v. Lee Yen Tai, 185 U. S. 213, 220–223 ; Pigeon River Co. v. Cor Co., 291 U, S. 138, 160–161), if there is clear inconsistency a later treaty will prevail over an earlier statute (see United States v. Lee Yen Tai, 185 U. S. 213, 220 ; Hijo v. United States, 194 U. S. 315, 324) and a later statute will prevail over an earlier treaty (The Cherokee Tobacco, 11 Wall. 616; Head Money Cases, 112 U. S. 580, 597-599 ; Chae Chan Ping v. United States, 130 U. S. 581, 599-603; see Pigeon River Co. v. Cor, 291, U. S. 138, 160 ; Moser v. United States, 341 U. S. 41, 45).
But a treaty need not have that effect. As Chief Justice Marshall said in Foster v. Neilson (2 Pet. 253 (1829)):
"Our Constitution declares a treaty to be the law of the land. It is, consequently, to be regarded in courts of justice as equivalent to an act of the legisla