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newspapers. Here again, we have noble aspirations couched in beautiful language designed to develop a more perfect press. The Newsgathering Convention is less objectionable than the two treaties previously mentioned because its teeth are not as many or as sharp. Nevertheless, there is much opposition to this convention on the part of those newspapers and correspondents who are its intended beneficiaries.

The fourth U. N. press document takes the form of a universal code of journalistic ethics. It is not a treaty. It is a U. N. recommendation which, like the Universal Declaration of Human Rights, is intended to have only moral force. Therefore, the U. N. code of press ethics will not be submitted to the Senate for its approval. Article 4 of this code of ethics declares that it is the duty of those who describe and comment upon events relating to a foreign country to acquire the necessary knowledge of such country which will enable them to report and comment accurately and fairly thereon. Now this is an excellent principle and one to which no reputable newspaper man will take exception. However, the attempt to translate these fine principles into treaty obligations enforced by the government must be resisted if the press is to remain free.

The acquisition of knowledge is closely related to the dissemination of information. It is not surprising, therefore, to find the U. N. forging chains for education which are similar to those designed for the press. Article 28, paragraph 7, of the U. N. draft Covenant on Human Rights provides in part:

"(Education) shall promote understanding, tolerance and friendship among all nations, racial, ethnic or religious groups, and shall further the activities of the United Nations for the maintenance of peace and enable all persons to participate effectively in a free society."

What I have just read might be described as the expected fruits of freedom of education. But whenever government is vested with power to attain these humanitarian goals by compulsion, the slave labor camps and the gas chamber are not far distant. The draft covenant presents us with a choice between freedom of education and a more perfect education promised by the government. No one will deny, for example, that one of the purposes of education should be to "enable all persons to participate effectively in a free society." Freedom is imperiled, however, at the very moment this objective becomes the exclusive responsibility of any national government or any international organization. Sooner or later, the minister of education will be one who believes with Dr. Conant that private and parochial schools are undemocratic, and that only state-controlled schools advance effective participation in a free society.

You who have a special interest in maintaining freedom of the press are confronted by a tremendous job of public education. Thousands of sincere, honest, and well-intentioned people have endorsed the U. N.'s treaty-making ambitions. They have endorsed these treaties without critical examination of the flowery phrases. Without this support on the part of warm-hearted humanitarians, the State Department would be forced to quit using the unalienable rights of the American people as items of barter and compromise in treaty negotiations.

One of the basic faults of American foreign policy is thoroughly examined in the book, American Diplomacy, written by our new Ambassador to Moscow, George F. Kennan. Mr. Kennan points out the disastrous consequences which flow from "the legalistic-moralistic approach to international problems." He explains the danger of abandoning the national interest as a determinant of foreign policy. He explodes the fuzzy idealism which seeks to impose on the peoples of the world a universal law when they have no common political, economic, or spiritual values. Ambassador Kennan has paid the usual penalty for deviating from the U. N. party line. His scholarly thinking has been described by the Washington Post as "the new isolationism."

The great majority of American newspapers have not been deceived by the pretty language in the U. N. documents dealing with freedom of information. They have relentlessly exposed the traps which are concealed in pious verbiage. I cannot better summarize my remarks today than by quoting from the report adopted by the American Newspaper Publishers Association at its convention last month:

"It might not be inapropos to quote Alice in Wonderland at this time because the world we are living in has something of the Wonderland quality. Most of the documents are filled with 'very best words' just as the Mad Hatter's watch was oiled with 'the very best butter.' Nevertheless the watch stopped! So with these codes, covenants, and conventions. They are undoubtedly filled with high-sounding language. Nevertheless, our freedoms may be impaired by their use."

EXHIBIT I

[Senator John W. Bricker]

[From the American Newspaper Publishers Association, Convention Bulletin No. 4-1952] REPORT OF THE SIXTY-SIXTH ANNUAL CONVENTION OF THE AMERICAN NEWSPAPER PUBLISHER'S ASSOCIATION, NEW YORK, N. Y., APRIL 22, 23, and 24, 1952

REPORT OF THE FEDERAL LAWS COMMITTEE

SUPPRESSION OF NEWS THROUGH U. N. DOCUMENTS

The ANPA has not been unaware of the many trends toward restricting the press in the gathering and dissemination of news. It has never been the belief of your committee that the guaranty of a free press written into our Constitution was intended as a guaranty for the press as such; rather those who were responsible for the Bill of Rights wrote into the first amendment to the Constitution the prohibition against abridgement of the press for the people. The press is a guardian and trustee of the rights of the people.

We are a free country-a country which has high respect for the rights and freedom of the individual. Perhaps we are the only country in the world founded on the basic principle of freedom of the individual. For that reason many of us have been prone to believe that freedom is something which could not be taken away from us. It could be taken away in other countries, perhaps, but not from

us.

Therefore, it has been with something of shock that we awoke to the fact that our freedoms were being whittled away as surely and as purposefully as in Nazi Germany, Soviet Russia, or many other countries where the press was first destroyed as a preliminary to destruction of a free people.

Newspapers have been aware of this danger and have been alert to fight efforts to take away from the people, through throttling the press, their rights, and freedoms. It has been with somewhat less shock but no less indignation that they have been and are continuing to fight the more blatant methods now being used. The fight has been intensified with the end of World War II and the birth of the United Nations.

Recently the ANPA issued a bulletin on the status of the various covenants, conventions, and codes being considered by groups within the United Nations, every one of which in the guise of spreading freedom of information, would actually have taken away from the American press freedoms which they have held as a sacred trust for the people since first we became a nation. Your committee hopes all of you have read B Bulletin No. 19-1952, March 26. If not, please do so as soon as you return to your offices. Each one of these proposed documents in the opinion of your committee could restrict the right of the press to collect and disseminate news to the public.

Of great concern to many is the belief that these proposed covenants, conventions, and codes would, if ratified by the United States, become the supreme law of the land. Certainly they would abrogate State laws and constitutions. Many believe they would abrogate the United States Constitution itself. Denys P. Myers, a specialist in international organization in the office of the Legal Adviser of the Department of State, pointed out in State Department Bulletin of March 10, 1952, that State laws and constitutions are abrogated by any treaty conflicting therewith that may be entered into by the United States, once the treaty has been ratified by the Senate. Mr. Myers' article entitled "Treaty and Law Under the Constitution" reviews the history of article VI of the Constitution and reaches the conclusion that the scope of the phrase "treaties made under the authority of the United States" was unquestionably understood and intended by the drafters of the Constitution to mean that such treaties shall become the supreme law of the land and shall be so construed by the courts. He points out that the framers of the Constitution drew a distinction between laws made pursuant to the Constitution and treaties made “under the authority of the United States.”

It is doubtful that these proposed documents can contribute anything to the freedom which we already enjoy, and they are so phrased that they might be used to restrict and curtail our freedom.

It might not be inapropos to quote Alice in Wonderland at this time because the world we are living in has something of the Wonderland quality. Most of the documents are filled with "the very best words" just as the Mad Hatter's watch

was oiled with "the very best butter." Nevertheless the watch stopped! So with these codes, covenants, and conventions. They are undoubtedly filled with highsounding language. Nevertheless, our freedoms may be impaired by their use.

EXHIBIT J

[American Bar Association]
TREATY-MAKING POWER

CONTROL OF THE TREATY-MAKING POWER BY CONSTITUTIONAL AMENDMENT

At the annual meeting of the American Bar Association at Washington, D. C., in September 1950, the house of delegates, on the recommendation of the committee on peace and law, adopted a resolution instructing that committee and also the section of international and comparative law, jointly and separately, to study the desirability of amending the Constitution of the United States in respect of the treaty-making power, and that joint or separate reports be made to the house of delegates. (See Reports of ABA, vol. 75, 1950, p. 117.)

Such joint studies have been carried forward by the committee and the section. (See September 1, 1951, Report of the Standing Committee on Peace and Law, p. 5 and 35.) A further meeting was held on this subject at Chicago on January 26, 1952, between representatives of the committee and the section. As a result of these meetings, it is now plain that no agreement exists on the question of amending the Constitution of the United States to limit the treaty-making power. So far as we are presently informed, the section does not consider a constitutional amendment either necessary or desirable. The committee on peace and law believes that such an amendment is both desirable and necessary and proposes the following amendment to the house of delegates for recommendation to Congress:

"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."

The committee on peace and law believes that, with a veritable barrage of new treaties sponsored by the United Nations in the social, economic, and political field, the balance between Federal and State power cannot be sufficiently safeguarded, and the making of domestic law by the treaty method sufficiently limited by inclusion of protective clauses in, or by reservations to, the treaties themselves. Your committee is of the opinion that the only effective answer to the extension of Federal power over the internal affairs of the States by the treaty method is an appropriate constitutional amendment.

In considering the subject of treaties, cognizance must be had of (1) their international effect as agreements between nations, and (2) their domestic effect in the United States of America as the supreme law of the land. (See September 1, 1951, Report of the Committee on Peace and Law, p. 6.)

It is agreed between the section and the committee that, under a treaty, Congress, by virtue of article I, section 8, can pass all laws necessary and proper to give effect to, and implement treaties, even though, in the absence of such treaty, Congress would not have power under the Constitution to pass such legislation; that by neither reservation nor understanding can this power of Congress be controlled if Congress chooses to exercise it (September 1, 1951, Report of Committee on Peace and Law, p. 36).

It is thus apparent that the treaty clause of the Constitution in article VI contains, as stated by Henry St. George Tucker, a former president of the American Bar Association, all the elements of a "Trojan horse" (Tucker, Limitations on the Treaty-Making Power, p. 339) in imposing domestic law on the several States of the Union through treaties with foreign nations, which, in the absence of such treaties, could not be imposed, and thus bringing about a change in the balance between Federal and State power, which, except for the treaty, could not be accomplished under the Constitution. It is also clear that the founding fathers in the sharp debates over the lodgement of the treaty power, and the effect of its exercise, definitely visualized the possible need for amendment (2 Farrand, The Records of the Federal Convention (rev. ed. 1937), p. 370). It is well-settled that the treaty-making power extends to all proper subjects of negotiation between our Government and foreign nations (Asakura v. Seattle,

265 U. S. 332, 341). While your committee has heretofore assumed that there are still some things "which are essentially within the domestic jurisdiction of the State" (United Nations Charter, art. 2 (7) ), it notes the State Department's position that "there is no longer any real distinction between 'domestic' and 'foreign' affairs" (opening sentence of State Department Publication 3972, Foreign Affairs Policy Series 26, released September 1950, with foreword by President Truman). And it is asserted that any subject whatever that is dealt with in a treaty between two nations becomes, by virtue of that fact, a subject of international concern.

Although the treaty power has been held by the Supreme Court to extend to all proper subjects of international negotiation, it has not yet been judicially determined by that Court whether the relationship of government to its own citizens is a proper subject of international negotiation, as distinguished from the relationship of a government with another government or with the nationals of another government-the traditional treaty field. But since the State Department has undertaken to negotiate so extensively with foreign nations in his new area, covered in part by the Federal Bill of Rights, and the bills of rights and statutes of the several States, regarding the relationship of a government to its own citizens, and on the precautionary assumption that this course might be judicially approved, your committee has prepared its draft amendment to the Constitution in respect of the treaty-making power with that assumption in view. Your committee's proposal will not affect the present method of negotiating and ratifying treaties (to wit, by the President and the Senate under article II of the Constitution); but treaties will not become internal law in the United States, binding upon the States, unless, and then only to the extent that the whole Congress acts by separate legislation within its delegated powers, apart from its power to pass all laws necessary and proper to implement treaties. Such an amendment will put the world on notice that such a limitation on our treaty powers exists and will put us on substantial parity with other nations in the treaty field. Under such a clause, a commitment on the part of the United States in a treaty to implement the treaty by legislation "in accordance with its constitutional processes" would be squarely within the limitation.

To a proper understanding of the purpose and effect of this amendment, we refer to the existing state of constitutional law with respect to treaties as recently discussed at length. (See September 1, 1950, Report of your Committee, pp. 16-23; see also Eberhard P. Deutsch, The Treaty Making Clause: A Decision for the American People, American Bar Association Journal, September 1951; Frank E. Holman, Treaty Law Making: A Blank Check for Writing a New Constitution, American Bar Association Journal, September 1950; Denys P. Myers, Treaty and Law Under the Constitution, State Department Bulletin, March 10. 1952.)

Briefly summarized, article II, section 2, of the Constitution, delegates to the President the power to make treaties, with the advice and consent of the Senate. Article I, section 10, provides that "no state shall enter into any treaty, alliance, or confederation." Article VI, paragraph 2, provides that all laws made in pursuance of the Constitution, and all treaties made under the authority of the United States, shall be the supreme law of the land; and the judges in every State shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding. The tenth amendment provides that "the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

It will be observed that, while under article VI laws of the United States are the supreme law of the land only if made in pursuance of the Constitution, treaties are declared to be the supreme law of the land if they are made under the authority of the United States. It is not required that treaties be made "in pursuance of" the Constitution. Richard Henry Lee of Virginia and Patrick Henry of Virginia both strongly objected to this provision concerning treaties at the time the adoption of the Constitution was under debate. (See Eberhard P. Deutsch, supra, American Bar Association Journal. Sertember 1951, p. 662.) The Supreme Court in United States v. Curtiss-Wright Export Corp. (299 U. S. 304), in a broad dictum quite unnecessary to the decision, stated:

66200

* * The broad statement that the Federal Government can exercise no powers except those specifically enumerated in the Constitution, and such implied powers as are necessary and proper to carry into effect the enumerated powers, is categorically true only in respect of our internal affairs" (pp. 315-316). and that

** the investment of the Federal Government with the powers of

external sovereignty did not depend upon the affirmative grants of the Constitution" (p. 318).

It is believed (and the decisions based on the law of nations cited by the court tend to confirm this belief) that the statements above quoted confuse the position of the United States Government as viewed by foreign nations from the standpoint of international law with the position of the United States Government in international relations as a matter of domestic constitutional law; and that, as domestic constitutional law, these statements are unsound (1) because in article II, section 2, the treaty-making power is expressly delegated, (2) because article I, section 10, denies to the States the power to "enter into any treaty, alliance, or confederation," and (3) because under the tenth amendment "the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people"-language which seems specifically to negate any concept of inherent sovereignty in the United States. The treaty power is a power specifically delegated to the Federal Government and specifically denied to the States. Other cases more accurately refer to the treaty power as having been "delegated expressly." (See Missouri v. Holland, 252 U. S. 416, 432; U. S. v. Samples, 258 Fed. 479, affirmed sub nom. Missouri v. Holland, supra; Baldwin v. Franks, 120 U. S. 678, 682; U. S. v. Rockefeller, 260 Fed. 346; U. S. v. Selkirk, 258 Fed. 775.) The language of article VI requiring a treaty merely to be made under the authority of the United States rather than in pursuance to the Constitution (as is the case with statutes) resulted in the decision of Missouri v. Holland (252 U. S. 416, 432) to the effect that under a treaty Congress may exercise legislative powers which it would not have under the Constitution, in the absence of the treaty. Under Missouri v. Holland, if the subject of the treaty is a proper subject of negotiation between governments, Congress may pass any legislation under the treaty that it sees fit under the "necessary and proper" clause of the Constitution (art. I, sec. 8) regardless of what may be the constitutional limitations on Congress apart from the treaty.

To show how this notion has taken hold in important circles, we quote from the report of the President's committee on civil rights:

""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' (Report of Civil Rights Committee, par. 10)."

Indeed, it is asserted (Report of Section of International and Comparative Law to House of Delegates of American Bar Association, Midwinter Meeting, February 25-26, 1952) that "so far as the requirement of indictment by grand jury and trial by jury are concerned, these apply only to trials in the Federal courts, and can have no application to an international court set up by a group of nations in the exercise of their treaty-making power *

there is no reason why such courts may not be created in the exercise of the treaty-making power."

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

The purpose and effect of the draft constitutional amendment proposed by your committee in respect of the treaty-making power may be summarized as follows:

(1) It is intended to remove any possible doubt that a treaty must be consistent with the Constitution and not in conflict with it. It is intended to give unequivocal constitutional effect to judicial dicta not yet incorporated in binding decisions, to the effect that "Congress cannot, by legislation, enlarge the Federal jurisdiction, nor can it be enlarged under the treaty-making power," and that no provision of a treaty which violates the Constitution or which is inconsistent with the nature of the Government of the United States or of the relation between the States and the United States, shall be valid (New Orleans v. United States, 10 Pet. 662, 736; The Cherokee Tobacco, 11 Wall. 616, 620-621; Holden v. Joy, 17 Wall. 211, 243; Geofroy v. Riggs, 133 U. S. 258, 267; and see Asakura v. Seattle, 265 U. S. 332, 341). And inferences drawn by some persons from Missouri v. Holland (252 U. S. 416), and U. S. v. Curtiss-Wright Corporation (299 U. S. 304, 316-319) that the treaty power is unlimited in any field of international concern, regardless of the Constitution, must in such an amendment be un

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