that a treaty actually had been executed by the United States relating to this subject.

You asked me for the citation of the case in which this proposition was established. I believe, in fact, you asked me specifically with reference to the case of Stutz v. Bureau of Narcotics. I stated that the citation was in the memoranda attached to my statement.

I find that the case referred to is Stutz et al. v. Bureau of Narcotics of Depart ment of Treasury of United States et al. (56 F. Supp. 810), a decision by a three-judge court.

You will find this case bases the constitutionality of the Opium Poppy Control Act exclusively on the treatymaking power.

Since my testimony yesterday, I have read an article on page 778 of the American Bar Association Journal for September 1952, written by Richard Young, editor in charge, dealing with this subject of narcotics control by international agreement. This article concludes by saying: "But it seems clear that they [steps to pass proposed amendments to the Constitution] should not be taken in ignorance of the impact they may have on international arrangements, the benefits of which are not always well known or fully appreciated." It was for the purpose of bringing to the committee's attention the possible impact that the Treasury presented its testimony yesterday.

Respectfully yours,

ELBERT P. TUTTLE, General Counsel.

MEMORANDUM ON SENATE JOINT RESOLUTION 1, 83D CONGRESS, 1ST SESSION

(Prepared by Dr. Salo Engel, the University of Tennessee)

Subject to the following observations I agree with the statement of the New York City Bar Association in opposition to Senate Joint Resolution 1, 83d Congress, 1st session.

Section 1 of the resolution

1. Under the terms of this section "a provision of a treaty which denies or abridges any right enumerated in the Constitution shall not be of any force or effect." Is such a provision to be considered without force or effect both internationally and nationally or is it to be invalid only nationally but valid internationally? According to section 3 of the resolution "a treaty shall become effective as internal law in the United States only through the enactment of appropriate legislation by Congress." In the absence of such legislation a treaty is therefore effective only internationally but not nationally. Hence, the words "without force or effect" in section 1 probably mean ineffective even internationally since the internal effect depends in any case upon enabling legislation. Accordingly, treaty provisions which deny or abridge constitutional rights do not bind the United States even internationally. Whether a treaty containing such provisions would, therefore, be entirely ineffective or partially effective and partially not would probably depend upon the relative importance of the provisions in question. The resulting inconveniences, to say the least, are obvious in view of the dominant international law doctrine according to which the nonobservance of national constitutional limitations affects the international validity of a treaty. 2. Section 1 does not specify whose rights may not be denied or abridged by treaties. Is this to protect only the rights of United States citizens as expressly stated in section 2 of the resolution or any rights granted by the Constitution to whoever may be concerned? If only the former are to be protected, the latter, by argumentum a contrario, could be interfered with by treaties. This the sponsors of the resolution hardly intended. If, on the contrary, section 1 is interpreted literally and any treaty provision denying any right enumerated in the Constitution is without force, it seems doubtful whether such an attempt to freeze the Constitution from an international angle will prove more effecive than similar efforts undertaken in the internal sphere. In view of the evergrowing interdependence of nations the experience of a "living" constitution is likely to be repeated internationally.

Moreover, section 1 thus interpreted would constitute a radical departure from the original constitutional system and the practice thereunder. According to article 6, section 2, of the Constitution, the latter, Federal legislation and

Federal treaties are the supreme law of the land. But while the Constitution requires Federal legislation to be made "in pursuance thereof," that is, in harmony therewith, treaties have only to be made "under the authority of the United States," that is, by the proper organ, by the authority provided for by the Constitution. Under a strict interpretation of article 6, section 2, of the Constitution treaties rank equally with the latter and do not have to be made “in pursuance thereof." The courts, however, do not seem to have adopted so strict an interpretation. Neither did they construe the treatymaking power as narrowly and as being so subordinate to the Constiution as proposed by section 1 of the resolution. It is not clear, however, what precisely the limits of the treatymaking power are. In Missouri v. Holland, Justice Holmes took pains to state that the Court did “not mean to imply that there are no qualifications to the treatymaking power" but he did not define those qualifications (cf. also The License Cases, 5 Howard 504, 613 (1847) and Calhoun's statement quoted in People v. Gerke and Clark, 5 Cal. 381 (1855)). And Missouri v. Holland itself—which, contrary to the statement of the New York City Bar Association, is pertinent-proves that it was possible to achieve through a Federal treaty plus Federal legislation pursuant thereto what had been impossible of achievement by Federal legislation alone, viz, for Congress to legislate in a field reserved for State legislation.

3. It is not clear whether section 1 is designed to protect States "rights" against encroachment by use of the treaty power.

Section 2 of the resolution

1. As far as the international or internal limitation intended by this section and the total or partial validity of treaties are concerned, the same questions arise as those mentioned above under section 1, except that in the latter stronger language is used than in section 2. It may be assumed, however, that treaties concluded in violation of section 2 shall have no more "force or effect" than those conflicting with section 1.

2. Section 2 is ambiguous also in other respects. It intends to prohibit the authorization by treaty of foreign powers or international organizations to supervise, control, or adjudicate rights of United States citizens within the United States enumerated in the Constitution or any other matter essentially within the domestic jurisdiction of the United States. Foreign or international jurisdiction is thus to be excluded in two fields: (a) Constitutional rights of United States citizens, and (b) essentially domestic matters. The qualification “within the United States" is made under (a) in connection with the constitutional rights of United States citizens and thus seems to apply only to the rights of citizens within the United States, i. e., living in the United States. Rights of citizens not within the United States, i. e., living outside the United States, could, therefore, be put under the supervision, control, or adjudication of foreign powers or international organizations. The qualification “within the United States" might, however, also be taken to refer to "supervise, control, or adjudicate." In this case it would also cover (b) and section 2 would thus prohibit the supervision, control, or adjudication within the United States, by foreign powers or international organizations, (a) of constitutional rights of United States citizens (wherever they might live) and (b) of any matter essentially within the domestic jurisdiction of the United States. If this interpretation is correct only those treaties mentioned in the statement of the New York City Bar Association are pertinent which confer upon foreign powers or international organizations jurisdiction to be exercised within the United States.

3. The statement rightly points out that the term "domestic jurisdiction" is difficult of definition. It is an essentially relative term depending upon the development of international relations, as the Permanent Court of International Justice said in the Tunis-Morocco case. Its scope is determined, inter alia, by treaties concluded between States. Section 2 would preclude the United States from participating, through treaties, in the process of defining matters of domestic jurisdiction. This would even go farther than the famous innovation in the declaration made by the United States under article 36 of the Statute of the International Court of Justice whereby the jurisdiction of the court was excluded in matters essentially within the domestic jurisdiction of the United States as determined by the United States.

Section 3 of the resolution

This section probably concerns only "constitutional" treaties but not treaties covered by sections 1 and 2 which may not be concluded or which, if concluded. are to be without force or effect. Hence, a treaty violating the provisions of section 1 or 2 could not become effective as internal law even if Congress enacted appropriate legislation. What if Congress did? And who is to decide whether a treaty is constitutional or not and thus susceptible or not susceptible of being "transformed" into internal law by appropriate legislation? If provisions of a treaty conflict with section 1 or 2, who is to determine whether this invalidates the entire treaty or whether its nonconflicting parts can become effective as internal law through legislation? Would the courts decide such questions or would they consider them to be of a political nature and thus outside their jurisdiction? If the court refused to take jurisdiction, how could these three provisions be enforced? Would it be wise so to enlarge the domain of judicial review and to involve the courts in questions of foreign relations and international organization? It is difficult to accept all the consequences resulting from the proposed amendment.

Section 4 of the resolution

1. The questions raised above arise also with regard to "executive or other (which other?) agreements" since such agreements shall be subject to the same limitations as treaties. Where speed is of the essence or where military considerations are involved the problem is even graver in the case of executive agreements.

2. Section 4 permits executive agreements to be made "only in the manner and to the extent to be prescribed by law." This law, in order to be different from the legislation required by section 3, must be adopted by Congress prior to the conclusion of executive agreements. If this authorization to be given by law in advance is granted in general terms the very purpose of the amendment is defeated as it might lead to an even greater use of agreements by the Executive than is now the case. If, on the contrary, the law contemplated in this section is to be passed ad hoc in each instance or if it covers certain categories of agreements the executive branch will be deprived entirely of this necessary means of international intercourse or at least unduly handicapped in its use.

3. On the other hand the statement by the New York City Bar Association seems to simplify too much the problem of executive agreements. Under present law there probably is no difference between treaties and agreements as far as their international effect is concerned. It is not clear, however, when a treaty is required or when an executive agreement is possible nor what the position of executive agreements in domestic law is. Are they, like treaties, the "supreme law of the land"? To what extent (if at all) can they conflict with the Constitution or do they override conflicting Federal or State legislation? Reference is made to the literature cited in the report of the standing committee on peace and law through the United Nations of the American Bar Association (Chicago, September 1952). It might be advisable to hear members of the American Society of International Law and of the American Political Science Association on this point.

Senator SMITH. This morning I received a letter from Roger Kent. I am not certain whether he meant it to be made public or whether it is a private communication to me. Before I put it in the record, I thought I should communicate with him, but I would like to have the privilege of putting it in the record if Mr. Kent intended that should be done. I wanted to check with him before I did it.

The CHAIRMAN. Certainly.

Mr. SMITHEY. The chairman asked earlier in the hearings that the staff prepare a compilation of those who had communicated with the committee concerning the amendments and their attitude toward the amendments. That compilation has been made, sir, and I would like to submit it for the record at this time.

The CHAIRMAN. Let it be filed and made a part of the record. (The document follows:)

FAVORABLE TO SENATE JOINT RESOLUTION 1

R. W. Louden, chairman, National Affairs Committee, Fairfield, Iowa
Elmer P. Cole, Evelyn A. Cole, Dorothy M. Miller, Harry C. Miller, Dorothy
Jackson, Jack Jackson, Miss H. Schoeffler, Harold A. Burgess, Ruth M. Bur-
gess, G. Eldred Kelley, Valle Del Vista, Bailey, Colo.

Lee L. Garling, business manager, American Medical Association, 1523 L Street,
Washington, D. C.

Walter S. Johnson, American Forest Products Corp., 1 Montgomery Street, San Francisco

Glenn Hamilton, 1812 Shore Drive, Marinette, Wis.

Valene L. Smith, Earth Science Department, Los Angeles City College, 855 North Vermont, Los Angeles 29, Calif.

Twin Disc Clutch Co., John H. Batten, president, Racine, Wis.

Mr. E. Jepson, 5853 St. Paul Court, Oakland 18, Calif.

J. Kelly, president, Green Bay Food Co., Green Bay, Wis.

H. A. Lewis, secretary-treasurer, Wisconsin Retail Hardware Association, Stevens Point, Wis.

Ray S. North, 327 North Second Street, Keokuk, Iowa

Mrs. J. D. Little, 215 Fourth Avenue, Huntington, W. Va.

Mrs. G. E. Anderson, Oklahoma City, Okla. (2510 N. Robinson, apt. C)

Mr. and Mrs. Calvin E. Holmes, Burbank, Calif.

Miss Elma R. Fisher, 2121 West Ninth Street, Los Angeles 6, Calif.

Isabel N. Atterbury, chairman, Republican Committee of One Hundred, Hotel Roosevelt, room 302, New York 17, N. Y.

Mrs. Benjamin Buckley, 152 Forest Avenue, Lexington, Ky.

Mrs. Frederick A. Wallis, 616 Pleasant Street, Paris, Ky.

Miss Mary G. Lackey, 422 North Limestone Street, Lexington, Ky.

Mrs. W. T. Fowley, 215 Ashland Avenue, Lexington, Ky.

Mrs. O. L. Steele, 706 Central Avenue, Lexington, Ky.

Mrs. William H. Smith, 324 Queensway Drive, Lexington, Ky.
Mrs. Charles Marvin, 235 Rodes Avenue, Lexington, Ky.
Mrs. W. Graham Kerr, 368 Transylvania Park, Lexington, Ky.
Mrs. J. W. Denton, 200 South Ashland Avenue, Lexington, Ky.
Miss Mary J. Covington, Lancaster Road, Richmond, Ky.
Mrs. W. Clay Shropshire, 458 West Third Street, Lexington, Ky.

Mrs. Walter Cowall Anderson, 1515 Fontaine Road, Lexington, Ky.

Mrs. Virgin A. Moore Rice, 508 East Main Street, Lexington, Ky.

Mrs. N. Wayne Wilson, Box 157 A, Rural Route 6, Arterburn Road, Louisville, Ky. Urban Boehler, 690 Broadway, Gary, Ind.

Thos. J. Hurley, 690 Broadway, suite 200, Gary, Ind.

E. B. Schlatter, Jr., 1015 East Washington Avenue, Madison 10, Wis.

R. M. Wagner, 1317 Winding Way, Anderson, Ind.

Mrs. William F. Casanova, 33 Hopkinson Avenue, Brooklyn 33, N. Y.

Mrs. G. E. Perry, 4712, North Santa Fe, Oklahoma City, Okla.

Helen S. Dubois, 829 Northwest 30th Street, Oklahoma City, Okla.
Mrs. Emily Balle, 6726 Sylmar Avenue, Van Nuys, Calif.

H. Ely Griswold, Jr., 405 Clubhouse Avenue, Newport Beach, Calif.

Mrs. George W. Goree, 221 East Mandalay Drive, San Antonio, Tex.

Emma Brier, 820 North Rose Street, Burbank, Calif.

R. A. Chapin, Russell A. Chapin, 222 26th Street, Santa Monica, Calif.
Harry C. Dimond, Jr., Keokuk, Iowa

Roy H. Dimond, Keokuk, Iowa

J. H. Krichel, D. V. M., 1914 Main Street, Keokuk, Iowa

Charles W. Pavey, M. D., 2265 North High Street, Columbus 1, Ohio

Robert H. Walker, Keokuk, Iowa

W. W. Gibson, attorney, 532 Baker Building, Minneapolis, Minn.

S. B. Campbell, Campbell & Campbell, Wytheville, Va.

J. H. Ballew, Stahlman Building, Nashville 3, Tenn.

Philip H. Jones, M. D., chairman, committee on congressional matters, Louisiana State Medical Society, New Orleans, La.

Mrs. M. Sims Davidson, Dallas, Tex.

Mr. M. Sims Davidson, Dallas, Tex.

Lloyd L. Grant, 303 North Main, Puyallup, Wash.

Dick Lewis, 600 East Fourth Street, Olympia, Wash.

Richard P. Lewis, 3822 Court Street, Seattle, Wash.

Mr. and Mrs. Bernah Hodgins, Mr. and Mrs. Max Seaton, Mr. and Mrs. Rodney Chadbourne, Miss Bess Stinson, Mr. and Mrs. Earl Fish, Dr. and Mrs. Logan Dameron, Mr. and Mrs. Richard Berry, Mrs. Addie Tait, Mr. and Mrs. A. J. House, Mr. and Mrs. V. M. Haldiman, Phoeniz, Ariz.

Lawrence Brown, Ridge Avenue and Valley Street, New Castle, Pa.

Mrs. M. Cullum Thompson

James L. Doenges, chairman, Madison County Medical Society, Anderson, Ind. Ex-Governor Frank M. Dixon, Birmingham, Ala.

Mrs. Lawrence Booram, 431 West 10th Street, Anderson, Ind.

A. G. Blazey, M. D., 7 East Walnut Street, Washington, Ind.
Mrs. H. B. Reynolds, 2502 Webster Street, Berkeley 5, Calif.
Mrs. G. M. Heywood, 1615 Broadway North, Seattle 2, Wash.

R. C. Aiken, M. D., Medical Center, 13000 South Maple Avenue, Blue Island, Ill.
C. Mervyn Young, 241 Kent Road, Wynnewood, Pa.

George E. Owen, Eugene, Oreg.

Clarence Manion, former dean, University of Notre Dame College of Law, South Bend, Ind.

F. C. Coleman, M. D., chairman, legislative committee, Iowa State Medical Society, Des Moines, Iowa

Karl Hoblitzelle, Majestic Theater Building, Dallas, Tex.

Clelement Raiche, Macel Raiche, Walter Small, Marguerite Small, Albert Jauron. Sebil Jauron, Eugene Glenzinski, Barbara Glenzinski, Dean Madison, Lela Madison, Marcel Surprent, Allen Foster, Katheryn Foster, Alex Cardosi, Aldina Cardosi, Thomas Houde, Sr., Lillian Houde, Mathilde Nourie, Thressley Nourie, Helen Nourie, Grace Nourie, Yvonne Marcotte, Elmire Marcotte, Violet Bergeron, Andrew Lagesse, Louis Lagesse, John Bernatavicz, Ameliz Bernatavicz, Kankakee, Ill.

F. M. Acree, 130 North Shelby Street, Greenville, Miss.

Hugo Franzen, 767 San Bruno Avenue, San Francisco 10, Calif.

W. R. Timken, vice president, Timken Roller Co., Canton, Ohio.

Mrs. Martha Koehne, 683 Glenmont Avenue, Columbus 14, Ohio

Mr. and Mrs. Frank Butler, Jr., 1803 South Van Ness, Santa Ana, Calif.
Legislative Committee. Keokuk Chamber of Commerce, Keokuk, Iowa.

Mr. and Mrs. John W. Hill, Santa Ana, Calif.

Mrs. Ellis W. Stanley, Santa Ana, Calif.

Mr. O. C. Horney, Jr., 67 Rosewood Drive, Atherton, Calif.

Mrs. A. Bonar, president, Womens Republican Study Club, Los Angeles, Calif. Mr. and Mrs. A. Bonar, Los Angeles, Calif.

Mr. Paul C. Phillips, 1215 West First Street, Santa Ana, Calif.

Mr. Joe Hall, 116 North Sycamore, Santa Ana, Calif.

Mrs. Marietta Rentschler. Glendale, Calif.

Mr. and Mrs. Robert E. Wilde, Santa Ana, Calif.

Mr. and Mrs. Frank Hertzberg, Eva and Mamie Fowler, Santa Ana, Calif.

Harry and Delores Ashen, Jerry and Catherine Redlein, Santa Ana, Calif.

Mr. and Mrs. Walter DeSilva, Mr. and Mrs. Kenneth Bogue, Mr. and Mrs. C. N. Manville, Dr. and Mrs. James L. Lynch, Mr. and Mrs. Stan Woods, Mr. and Mrs. Emmett, Joseph Quinn, Santa Ana, Calif.

Mrs. John L. Boenges, Anderson, Ind.

Mrs. Frances H. Beshears, 13871 Deodar, Santa Ana, Calif.

Mr. Edward S. Peer, 117 South Windsor Boulevard, Los Angeles, Calif.

Mrs George McNee, 117 South Windsor Boulevard, Los Angeles, Calif.

Mrs. Louise V. Conradt, Keokuk, Iowa.

Mrs. Charlotte Churchill, Starr, legislative chairman, Colonial Dames of America, R. D. F. No. 2, Quakertown, Pa.

Mr. A. H. Conradt, Keokuk, Iowa.

Mrs. J. S. Paulson, 14945 22d Street SW., Seattle 66, Wash.

Miss Lydia L. Hazelton, 920 South New Hampshire Avenue, Los Angeles 6, Calif. Mr. Keith C. Atterberg, Keokuk, Iowa

Mr. Leonard D. Mayes and mother, Arlington, Calif.

Mr. Russell J. Hulse, 1310 Winding Way, Edgewood, Ind.

Dr. John K. Glen, 4412 Montrose Boulevard, Houston 6,Tex.

Mrs. N. A. Paris, 2728 Northeast 32d Avenue, Portland 12, Oreg.

Mrs. M. L. Pierrepont, 1635 northeast 160th Street, North Miami Beach, Fla. Mayme K. Albaugh, S. L. Albaugh, 2700 Chester Lane, Bakersfield, Calif.

Mr. Joseph H. Leyden, 1728 Jasmine Street, Denver 7. Colo.