APPENDIXES

EXHIBIT A

[Senator John W. Bricker]

A PROPOSAL TO AMEND THE CONSTITUTION OF THE UNITED STATES

(Statement by Senator John W. Bricker on the floor of the U. S. Senate)

Mr. President, I introduce for appropriate reference and ask to have printed at this point in my remarks a joint resolution proposing an amendment to the Constitution of the United States relative to the making of treaties and executive agreements.

The paramount issue of our time is whether or not the sovereignty and the Constitution of the United States shall be preserved. Because of a constitutional loophole which I shall discuss, it is possible for the sovereignty and the independence of the United States to be surrendered by treaty. There is grave danger that the rights and freedoms of the American people protected by the Constitution can be altered or abridged by treaty. No one denies that the treaty-making power is fully capable of wiping out all the powers reserved to the States by the tenth amendment. There are those who claim that treaties and executive agreements are completely interchangeable. To prevent these abuses of the power to make treaties and executive agreements, amendment of the Constitution is imperative.

Before discussing the proposed constitutional amendment there are three points which should be clearly understood.

First, no sponsor of the joint resolution claims that its language is perfect or in final form. One of the primary objectives in introducing this joint resolution is to focus attention on a grave constitutional defect and to stimulate discussion. This subject involves incredibly complex issues of international and constitutional law. It will require many months of patient, mature deliberation before a proposed amendment can be made ready for the decision of the Senate. Secondly, all of the reasons which have led me to introduce this joint resolution are not necessarily shared by every cosponsor.

Finally, the introduction of this joint resolution should not be construed as reflecting any lack of confidence in either the present membership of the Senate or the Senate Foreign Relations Committee. There is not the remotest chance that even one-third of the present Senate would undermine the rights of the American people by voting for the U. N. draft Covenant on Human Rights or any other treaty of similar import. However, the rights and freedoms enumerated in the Constitution must be protected in perpetuity, and not merely by the sufferance of the President and two-thirds of the Senators present and voting.

ORIGIN OF THE CONSTITUTIONAL LOOPHOLE

The joint resolution just introduced is designed to plug a growing loophole in the Constitution. The constitutional defect has developed from a treaty power unlimited in scope and capable of automatically creating the supreme law of the land. By a ruthless exercise of the treaty-making power a President, with the support of two-thirds of the Senators present and voting, could revolutionize the relationship between the American people and their Government as prescribed by the Constitution. The time has come to close this constitutional loophole.

Historians tell us that the framers of the Constitution ordered the cobblestones on Chestnut Street in Philadelphia covered with dirt so that the noise of passing traffic would not disturb their deliberations. Certainly it was not through carelessness that the treaty power was cast in such form as to implant

in the Constitution the seed of its destruction. Equally obvious is the fact that the great men who met in Philadelphia did not believe that the product of their careful labor could be nullified by the President and two-thirds of the Senators present and voting.

The menacing loophole we see in the Constitution today was simply not visible in 1787. It was not revealed until the invention of novel theories of international law. These revolutionary theories could not have been anticipated

165 years ago.

The basic concept of international law in 1787 was not seriously challenged for more than 150 years. Alexander Hamilton described international law as that concerned with the relation of sovereign states to each other. The rights and duties of the individual under international law were derived and enforced through the medium of his government. Only sovereign states were considered to be appropriate subjects for international legal recognition. This traditional interpretation of the function of international law is conceded even by those who advocate making international law directly applicable to the individual. Dr. Philip Jessup, discussing certain defects of the international legal system, stated in his recent book:

"The first is the fundamental tenet of traditional international law that it is a law only between states, not between individuals or between individuals and states" (A Modern Law of Nations (1948), p. 8).

Mr. Moses Moskowitz wrote in the April 1949 issue of the American Bar Association Journal:

"There is no such thing as recognized human rights in international common law. The idea of affording international protection of certain human rights and freedoms can be realized only within the framework of treaty provisions (p. 358).

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When the Constitution was formed international law was universally recognized as limited to the Nation's external affairs in which other nations had a substantial interest. There was no apparent reason to circumscribe the treaty power with constitutional limitations which are indispensable today. The founding fathers did not dream that the relationship of the American people to their Government could be altered by treaty. Accordingly, the treaty power was couched in broad language so as not to risk depriving the United States of any essential attribute of sovereignty. The framers of the Constitution also realized that the Nation must speak internationally with a single voice. Treaties were necessarily made the supreme law of the land, "any Thing in the Constitution or laws of any State to the Contrary notwithstanding."

The new fashions in international law have been enthusiastically endorsed by most of the U. N. member nations and by most of the American representatives at the U. N. The basic premise of the proposed new international law is that the relationship between citizens of the same government and between the individual and his government are appropriate subjects for negotiation, definition, and enforcement in multilateral treaties. Under this theory of the function of international law, no economic or political rights are beyond the reach of the treaty-making power. Our State Department is promoting this revolutionary legal theory by statements that the distinction between foreign and domestic affairs is virtually nonexistent.

A way has been found to alter the Constitution without changing a word of its text. A generous grant of treaty power for the purpose of making a new nation fully sovereign must not become the legal basis for a complete surrender of national sovereignty. The treaty power must not be permitted to extend to matters of purely domestic concern for which it was never intended. Our cherished freedoms must not continue to be used as items of barter at international conferences.

ADVANTAGE BEING TAKEN OF THE LOOPHOLE

Although it took more than 150 years for the loophole in the Constitution to attain menacing proportions, those who seek to take advantage of this loophole have moved with remarkable speed. These opportunities are centered, for the most part, in the United Nations and some of its specialized agencies.

At present the United Nations appears inspired by an ambition to define and to enforce by treaty the economic and political rights and duties of every human being in the world. The most comprehensive of these proposed treaties is the United Nations draft Covenant on Human Rights. In the past several

months I have explained how article 13 might destroy freedom of religion; how article 10 could be used to deny the right to a public trial; and how article 14 would permit freedom of speech and of the press to be suppressed either by the Congress or by the President during any national emergency proclaimed by him.

My criticism of the draft covenant has not been directed solely to its adverse effect on the freedom of the American people. As I indicated on August 23, 1951, article 14, paragraph 3, of the draft covenant would stamp the approval of a United Nations treaty on the trial and imprisonment of William Oatis. On August 15, 1951, the State Department denounced a separate U. N. Convention on Freedom of Information because, even though not ratified by the United States, it would have legalized the restrictions placed on liberty of the press by Stalin, Tito, Peron, Nehru, and others. I commended the State Department for its action, but pointed out that substantially the same restrictions were authorized by article 14 (3) of the draft covenant. In its most recent report to the Congress on United Nations activities the State Department described the language of article 14 (3) as "generally satisfactory from the point of view of the United States" (United States Participation in the United Nations (1950), p. 188).

The draft Covenant on Human Rights also threatens the right of peaceful assembly, the right of association, and the right of the United States to protect itself against the subversive activities of Communists. Part III of the draft covenant defining economic, social, and cultural rights would make the pretensions of Marxism socialism the supreme law of the land.

This proposed amendment is not a substitute for the simple resolution (S. Res. 177) introduced by me on July 17, 1951, and now before the Senate Foreign Relations Committee. Amendment of the Constitution requires the most patient, cautious, and mature deliberation. In the meantime, the Senate should express its opinion that the draft covenant, even if never ratified by the United States, is a dangerous undertaking which threatens to legalize restrictions on human liberty which exist in most of the countries of the world. The action of the State Department in denouncing the draft Convention on Freedom of Information is a logical precedent for Senate approval of Senate Resolution 177.

Subsidiary agencies of the United Nations are working on a number of other treaties which would bring some phase of economic or political liberty under international control. These proposed treaties envision an international labor law, a program of internationalized social security, an international trade law, and an international criminal court.

I hope, Mr. President, that any criticism of this amendment will meet the fundamental issue. I welcome constructive criticism. It is also my hope that the amendment I have proposed will never become a purely partisan issue. Both Republicans and Democrats are included among those who would convert the United Nations into an instrument of world government by the use of treaties. Those who believe that the rights and freedoms of the American people are not the legitimate concern of treaties or executive agreements belong to both major political parties.

No one should construe any Senator's sponsorship of the amendment as a desire to weaken the United Nations, or as a sign of isolationism or xenophobia. The vast majority of the American people will never tolerate if they can prevent it any weakening of their basic rights and freedoms. As the threat of United Nations treaties becomes more apparent, millions of patriotic Americans will demand that the United States withdraw from the United Nations. That, in my judgement, would be tragic. But unless the treaty power is confined to its traditional field, the demand to withdraw from the U. N. may attain irresistible proportions. I would join it. As I pointed out to the Senate on August 30, 1951, "Those who encourage the U. N.'s treaty-making ambitions are the U. N.'s worst enemies."

We have reached a point, Mr. President, when we must reaffirm or deny the philosophy that "all men are endowed by their Creator with certain unalienable rights." These words of the Declaration of Independence are the very soul of our Constitution. The Constitution was founded on natural law principles. The Constitution recognizes the unalienability of certain rights by specified enumeration and by the basic structure of government established to preserve those rights. The people must decide whether their rights and freedoms are truly unalienable or whether they are subject to alienation by treaty.

Before explaining the joint resolution section by section, I should like to pay tribute to the magnificent work of the American Bar Association and its

committee on peace and law through United Nations in alerting the American people to the dangers inherent in the treaty-making power. I desire to pay a special tribute to the association's distinguished past president, Dr. Frank E. Holman, of Seattle, Wash., for his pioneer work in this field. I hope that · · the American Bar Association's careful study of this subject over the past 4 years will result shortly in a proposal to amend the Constitution designed to accomplish the same objective as the resolution just introduced.

The representatives of the committee on peace and law of the American Bar Association should soon be called as witnesses before the Senate Judiciary Committee on this proposed amendment. Also, I hope the committee will call Clarence Manion, who recently resigned as dean of the University of Notre Dame Law School. In reviving faith and interest in the immutable principles of natural law, Clarence Manion and the University of Notre Dame have rendered an invaluable service. The incompatibility which seems to exist between the natural-law philosophy of our Constitution and proposals for a universal bill of rights should be fully developed.

SECTION 1

Section 1 of the joint resolution is comparable to the opening language of the first amendment: "Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.

The State Department contends that to whatever extent a treaty denies constitutional rights and freedoms it would be declared unconstitutional. Therefore, the argument is made that a constitutional amendment providing that no treaty shall prohibit the free exercise of any right recognized by the Constitution is unnecessary. This argument is unsound for at least three

reasons.

First, it should be noted that freedom of speech, press, assembly, and religion are protected by means of a prohibition on the power of Congress. The Constitution defines Congress as a Senate and a House of Representatives. The treaty-making agency is not "Congress," but the President and the Senate. Accordingly, a literal interpretation of the first amendment permits the abridgment of freedom of speech, press, assembly, and religion by treaty.

Article VI of the Constitution also indicates that treaties might be held valid even though they achieve a result which would be unconstitutional if embodied in legislation.

Article VI, paragraph 2, requires laws to be made "in pursuance" of the Constitution. However, treaties need only be made "under the authority of the United States." In Missouri v. Holland (252 U. S. 416 (1920)), Mr. Justice Holmes called attention to this difference. He intimated that "under the authority of the United States" might mean nothing "more than the formal acts prescribed to make the convention." The rights and freedoms of the American people will not be secure so long as a literal interpretation of article VI permits treaties to abridge rights and freedoms, not in pursuance of the Constitution but under the authority of the United States.

Finally, the State Department places great reliance on what it chooses to describe as "classical" legal decisions of the Supreme Court. Is the State Department totally unaware of the scores of classical constitution landmarks which have been nullified by the Roosevelt-Truman Court? It is true that the Supreme Court has said that a treaty may not authorize what the Constitution expressly forbids (Geofroy v. Riggs, 133 U. S. 258, 267 (1890)). However, all such statements are pure dicta. In the entire history of the United States, no provision of any treaty has ever been held unconstitutional. I have no intention of permitting the rights and freedoms of the American people to hang on the outcome of a doubtful and hitherto undecided question of constitutional law.

I want to explain now, Mr. President, the reason for using the word "respecting" in the joint resolution. The State Department claims that the draft Covenant on Human Rights is entirely consistent with the Constitution. My speeches during the past 6 months indicate my disagreement with this conclusion.

If the State Department is right, then over 90 percent of the lawyers of the United States are wrong.

Let us assume, however, that an international bill of rights could be drafted with the same meaning as our own Bill of Rights. Nevertheless, the interpretation and enforcement of a universal bill of rights would have to be vested in some international organization and not exclusively in the courts of the United States. In providing that "no treaty or executive agreement shall be made re

specting the rights of citizens of the United States," section 1 of the joint resolution makes it clear that our cherished freedoms are not proper subjects for negotiation, definition, and enforcement pursuant to multilateral treaties.

There is another reason why no treaty should be made "respecting" the rights of citizens of the United States. Many of our freedoms may be described as "freedom to be let alone." Freedom of expression, for example, is isolated from the power of government on the theory that it is a right unalienably bestowed by our Creator. In many other countries, and in article 14 (2) of the draft covenant, freedom of expression is treated as a right granted by the government and one which the government should take affirmative action in promoting. It is obvious that our concept of unalienable rights can never be reconciled with the theory which prevails in most countries that all rights are granted by the state.

SECTION 2

Section 2 of the joint resolution is intended to remove from the reach of the treaty-making power matters essentially within the domestic jurisdiction of the United States. Section 2 is also intended to prevent abrogation of the sovereignty of the United States by treaty or executive agreement. For example, the power of Congress to lay and collect taxes, to borrow money on the credit of the United States, to make rules for the regulation of the Armed Forces, and all the other legislative powers vested in the Congress by article I, section 8 relate to the purely internal affairs of the United States. By vesting all legislative power in the Congress, it was undeniably the intent of the founding fathers to confer upon the American people the right of self-government.

It is true, of course, that many matters not essentially within the domestic jurisdiction cannot be handled effectively solely by an exercise of the legislative, executive, or judicial powers of the United States. In such cases, cooperation or agreement with other sovereign states is essential. The Constitution provides for the treatment of such subjects by treaties. There may result, of course, a necessary and proper restriction on the sovereignty of the United States. Treaty obligations may impose legitimate restraints on the exercise of the legislative, executive, or judicial powers of the United States. However, I cannot imagine any case where it would be proper for the legislative powers of the Congress, the executive powers of the President, or the judicial powers of the United States to be delegated to any international organization except by amendment of the Constitution.

I freely concede, Mr. President, that section 2 of the joint resolution may be too restrictive. If that is so, I welcome suggestions for changes. However, to the best of my knowledge and belief, no treaty ever made by the United States, including the United Nations Charter, would be invalid under the language in this proposed amendment. This amendment is aimed at those treaties now under consideration the avowed purpose of which is to undermine the concept of national sovereignty.

In the past 3 or 4 years there has been considerable discussion of United States participation in a world or regional federation. At the very least, world government and the more limited Atlantic Union demand a surrender of legislative and executive powers in the field of taxation, spending, foreign policy, and military affairs. However, responsible spokesmen for both the United World Federalists and the Atlantic Union Committee concede that their proposals entail a massive surrender of national sovereignty, and that the approval of the American people should be manifested by constitutional amendment. Therefore, section 2 of the joint resolution will not place any obstacle in the way of world or regional federation which does not already exist by virtue of the spirit, if not the letter, of the Constitution.

On the other hand, there are a number of State Department officials who seek to attain world or regional federation by treaty. There are others like Dr. Philip C. Jessup, who advocate a gradualist approach to world government without even resorting to the formality of a treaty. I am unalterably opposed both to world government and to the so-called Atlantic Union. On Tuesday, February 12, 1952, the Nation will pay tribute to the immortal Lincoln who saved the American Union from dissolution. The threat to the American Union today is that it may be submerged in a superstate in which the American people have only a minority voice in shaping their political and economic destiny. However, before the American Union is engulfed by some form of world or regional government, the American people must take that revolutionary step by amending the Constitution.