of us thought was strictly the domestic concern of the several countries involved. The treaty clause now carries a different implication. That is what brings us to this very serious question.

The State Department, for instance, has an official bulletin issued in 1950, saying "that there is no longer any real distinction between. domestic and foreign affairs." If that is true, under the treaty-making power, any subject matter can be seized, which heretofore has been deemed to be the exclusive concern of the several States, in their relationship to the citizens of the several States, and, of course, if treaties are made in those fields, State constitutional provisions and laws will disappear to the extent that they conflict with the provisions of a treaty negotiated by us with 15, 20, 30, 40, or 50 other nations of the world, who may have different concepts about the particular subject matter that is involved in the treaty.

To show that we are not alone in our concept as to the extent of the treaty-making power and that we wrote the first sentence of this proposal advisedly, I would like to direct your attention to a statement made by former Chief Justice Charles Evans Hughes before the American Society of International Law in 1929, so that we cannot be charged with conjuring up anything about the extent of the treaty power. I should like to call your attention merely to these statements [reading]:

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 atached to it, and so far there has been no disposition to find in anything relating to the external concerns of the Nation the limitation to be implied. 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. I should not care to voice any opinion as to an implied limitation on the treaty-making power. The Supreme Court has expressed a doubt whether there could be any such

That is the doubt that has been expressed in one of its opinions, referring to Missouri against 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.

Then Justice Hughes goes on to say:

If we attempted to use the treaty-making powers to deal with matters which did not pertain to our external relations, but to control matters which normally and appropriately were within the local jurisdiction of the States, then I again say there might be grounds 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.

That is a brilliant statement, which comprehends the whole problem as it is presented here.

Justice Hughes entertains doubts as to whether, insofar as the courts have ruled, there is any limit to the treaty-making power.

He further issues a caveat that if the treaty-making powers should be used to deal with subjects that heretofore have been deemed to be matters of domestic concern, that they raise a serious question as to the extent of the treaty-making power, and whether or not a limitation should be implied.

Particularly, the latter portion of the statement would be rather reassuring, if we were not now told by the State Department that there is no longer any difference between domestic and foreign affairs. If there is no longer any difference between domestic and foreign affairs, then, of course, the treaty power can reach any subject matter and the possible implied limitation referred to by Justice Hughes relating to the treaty-making powers to matters of external concern, and excluding it from matters of internal concern, for the purpose of making domestic laws for the several States, has disappeared from the picture, and we then have the situation today-and that is the thing that we fear that under the treaty-making power now, any subject can be seized that is within the domestic concern of the States, because the State Department believes that any domestic subject also has international implications, and therefore is a fit subject upon which to make a treaty.

If that is so, under the treaty-making power, a great body of State. constitutional, and statutory law can be wiped out.

To give you another illustration that there is nothing fantastic about this fear which we entertain and which Justice Hughes entertained as far back as 1929, we refer in our report to the attitude of the President's Committee on Civil Rights. The President's Committee on Civil Rights, which rendered its report, I think, 2 years ago, went into the subject to a considerable extent, as to the power of Congress under its existing constitutional powers, to pass civil-rights legislation, notwithstanding it is the concept of many that civil rights is a subject matter that is the concern of the several States, under the tenth amendment.

After dealing with that particular problem as to the extent of congressional power under the Constitution, they said, and I quote:

The Human Rights Commission of the United Nations at present is working on a detailed national bill of rights, designed to give more specific meaning to the general principles announced in article 55 of the Charter: If this document is accepted by the United States as a member state, an even stronger base for congressional action under the treaty power may be established. Not only that, but as late as February of this year the section on international and comparative law of the American Bar Association, brought in a report to the midwinter meeting of the American Bar Association, stating that under the treaty-making power the Government of the United States could agree to an international criminal court in which there was no trial by jury and in which an American citizen could be taken abroad for trial without the safeguards which the American Constitution gives to him.

Now, it is agreed, if he were tried in this country he would be subject to and have all of the constitutional protections that the Constitution gives to persons charged with crime, but they say, under the treaty power we can agree to the creation of an international court that frees us of those constitutional limitations.

In other words, it is claimed that the United States Government can, under the treaty power, provide for the trial of American citizens abroad for offenses committed here by methods and in places which the Constitution forbids.

That is one reason, both the Missouri against Holland doctrine, and this general doctrine as to the extent of the treaty-making power, we suggest as a first sentence, the one that I read you a little while ago,

that any provision of a treaty which conflicts with the Constitution of the United States shall be of no force and effect, because, while it has been said by the Supreme Court that you cannot do anything by treaty power when the Constitution forbids it, the situation in Missouri against Holland was one where the Constitution did forbid the Congress from dealing with the subject matter in the sense that the power was not delegated. Not being delegated, Congress was forbidden to deal with it.

However, the Court said that while Congress was forbidden to deal with it under its normal constitutional powers, once the treaty was passed on the subject, Congress then had jurisdiction to deal with it, under its normal constitutional powers, and, equally here, the point put forward about the extent of civil-rights legislation under the treaty power, the right to create an international court for the trial of American citizens, freed of all constitutional limitations set forth in the Constitution, shows that there is a real danger that the construction of the treaty powers now laid down may permit something that the Constitution otherwise forbids.

Because the courts have spoken only in forms of dicta, and the courts have changed their minds in modern times many, many times, we would like that principle firmly engrafted in the Constitution as a limitation to the treaty powers.

The second concept that is embodied in the American Bar Association proposal will have the effect of making all treaties whatsoever non-self-executing.

I will read that sentence for this purpose:

A treaty shall become effective as internal law in the United States only through legislation by Congress

The purpose of that clause is to take the Trojan Horse element out of the treaty clause. Today the treaty is made. Two or three or five years from now several states find out that while everybody was asleep, including probably Congress and the States, a provision was put in the treaty which has the effect of invalidating a State constitutional provision or a State law. That comes about by reason of the supremelaw clause in the sixth article, which makes treaties automatically domestic law. Any self-executing treaty becomes automatically domestic law once it has been ratified by the Senate of the United States, State constitutions and laws to the contrary notwithstanding. What this proposal does is to render all treaties non-self-executing. It does not limit the State Department in negotiating treaties. They can go out and make it in any part of the world, but it does not conflict with any law in the country until Congress acts. We know exactly at what point there is an impact on existing Federal and State law, under this provision. That proposal of ours, which is identical with the one in Senator Bricker's proposal, has in support of it not only logic and reason and the protection of the several States from the Trojan Horse Act of the treaty clause, but it has behind it international precedent, virtually world over.

We are one of the very, very few countries in the world-in fact, the only important country in the world-where a treaty is other than an international agreement and becomes domestic law of the country by virtue of being ratified.

In the British Commonwealth of nations, which is very important to us, and in most other countries-and I have put in the record Dr.

Finch's study, made in the reports of 1950, bearing my statement out in detail-a treaty does not become domestic law unless there is separate legislation by the legislative body. Canada can make a treaty. Great Britain can make a treaty. That treaty is merely an international agreement. It is not binding on the courts of Canada or Great Britain. It does not affect private rights until either the British or the Canadian Parliaments, respectively, legislates. That is true of virtually all the countries in the world, as Dr. Finch pointed out in that study he made in the September 1 report of the Committee on Peace and Law.

We want the United States to be in the same position as other countries. There is no reason, if a treaty with Great Britain, so far as the British are concerned, is nothing but an international agreement, and has no domestic effect, why it should have a domestic effect in the United States.

As a matter of fact, Judge Hudson, of the Harvard Law School, pointed out some years ago in an article in the American Journal of International Law, the anomalous situation we find ourselves in because of our supreme-law clause, which other nations do not have. If we make a treaty that is self-executing in character, it is binding on our courts. The courts in our country will enforce those treaties with respect to private rights, whereas courts in other countries have no duty or any right to endorse or enforce them, so that what we are trying to do with this second idea in our proposal is to make all treaties non-self-executing. Then the Congress will know and the States will know at what time, if any, the treaty will have an effect on the domestic law of the country. A treaty in our case will be an international agreement, just as in the case of Britain, and most other countries, until the legislative body incorporates it into the domestic law of the country, to the extent it deems it necessary and proper to do so.

The third concept that is embodied in the proposal of the American Bar Association, approved by the house of delegates, is the last clause, the "which" clause, which it could enact under its delegated powers, in the absence of such treaty.

The first portion of our proposal, although differing perhaps slightly in words, is identical with Senator Bricker's proposal, who also proposes to make all treaties whatsoever non-self-executing to put us on a parity with other nations of the world.

The "which" clause which we have added as an additional control on implementing legislation under the treaty power, and the reason for that third provision, the "which" clause, is specifically to limit the doctrine of Missouri against Holland. We have done that, in other words, to make it plain that when Congress legislates under treaties, it is limited to its constitutional powers, in the absence of treaty; in other words, that its constitutional powers to legislate are not enlarged by reason of the existence of the treaty, beyond the powers which it would have in the absence of the treaty. We think that it will have the effect of keeping State and Federal power completely in balance.

If that particular third idea is put into a constitutional amendment, then the balance between State and Federal power will stay as it is, unless changed by constitutional amendment. The Federal Government will not have greater power by virtue of having ratified

a treaty and the States will not have less power by virtue of the Federal Government having ratified a treaty.

The reason behind that, I think, is severalfold. We have made pretty elaborate studies of the whole historical background of the treaty power. We have read all the documents from the Federalist, and the debates and all that sort of thing. Of course, it is perfectly plain to anyone that it never was intended by the founding fathers that the treaty clause should be a device for unsettling the balance between State and Federal power. When the Constitution was originally adopted, you will remember, there were a number of States that had large doubts about the extent of the powers conferred, so, 10 amendments were added, 2 years later, in 1791, to make very, very sure, that the Government was a government of delegated powers, and that what was not delegated was reserved. Of course, the Court, in determining the scope and effect of the Constitution, of the tenth amendment, first determined what has been delegated, and what is necessarily implied from the delegated power. The rest is necessarily reserved under the tenth amendment.

Now, it is very, very clear that the founding fathers intended to maintain the balance between State and Federal power that was originally established. They did not intend this modern concept at all. If you make a treaty with Canada, or Lebanon, or Iran, on some subject, and laws and State constitutions pass out the window-that never was their concept. They were very zealous of their State rights. Now, by adding the third idea in the "which clause" which is the last portion of our proposal, we make it very, very clear, that the Congress does not acquire additional legislative powers, by virtue of a treaty on the subject, but that Federal, congressional power remains the same as it is under the Constitution, unaffected by the ratification of the treaty, and the State power remains the same under the Constitution, unaffected by the ratification of the treaty, and that the balance between State and Federal power cannot be changed, except by constitutional amendment.

Those are the principal points incorporated in our amendment. I want to make one additional point which our proposal covers, and removes a very substantial problem of constitutional construction. It is set forth in our report. It is with respect to the situation of the first amendment. It is a point which has been overlooked, I think, by many writers on the subject.

We pointed it out as early, I think, as 1950. The first amendment is the amendment which we say protects the freedom of speech, freedom of press, and freedom of religion; but what is the language of the first amendment? That so-called protection is in this form:

Congress shall pass no law respecting those three subjects.

"Congress shall pass no law"-it is a limitation on Congress. Congress does not make treaties. The treaty power is vested in the President and the Senate. If you will not only read the constitutional language itself, but go back to the articles, you will see that the founding fathers determined that they should set up a separate agency for the making of treaties. There was discussion as to whether Congress should make them. There was discussion as to whether the President should make them alone. They determined not to put it in Congress. They determined not to put it in the President. They