TREATIES AND EXECUTIVE AGREEMENTS

THURSDAY, FEBRUARY 19, 1953

UNITED STATES SENATE,

SUBCOMMITTEE OF THE COMMITTEE ON THE JUDICIARY,

Washington, D. C. The subcommittee met, pursuant to recess, at 10 a. m. in room 424, Senate Office Building, Hon. William Langer, chairman of the committee, presiding.

Present: Senators Langer, Dirksen, and Smith of North Carolina. Also present: Senators Watkins and Bricker.

Wayne H. Smithey, subcommittee counsel.

The CHAIRMAN. The committee will come to order.

I have some letters and telegrams here which I would like to have made a part of the record. The record will show the names and addresses and briefly which side they are on.

The CHAIRMAN. Will you call the first witness?

Mr. SMITHEY. Mr. Frank Ober, the committee on peace and law of the American Bar Association.

STATEMENT OF FRANK B. OBER, ON BEHALF OF THE COMMITTEE ON PEACE AND LAW, AMERICAN BAR ASSOCIATION, BALTIMORE

Mr. OBER. For the record my name is Frank B. Ober, 640 Mathieson Building, Baltimore, Md. I have practiced law for 40 years within 40 miles of this room.

I want to speak very briefly about the first sentence of the proposed amendment as formulated by the American Bar Association. In the first place, let me say that when Senator Bricker opened the hearings last spring, he said a great constitutional issue was at stake. I think it has never been more plainly stated than by the Secretary of State when he pointed out that the treatymaking power is liable to abuse and that treaties can be used to override our Constitution and to affect the rights of the citizens under the Bill of Rights.

Now, that is the reason, Mr. Chairman, that I think the first sentence which makes a treaty that conflicts with the Constitution of the United States is of such tremendous importance. Let me just refer only briefly to a succession of events that seemed to me to emphasize the dangers because some of the witnesses who have testified or who will testify will say, "Let's wait until some damage has been done." Mr. Chairman, you will remember that one of the first things that the United Nations did was to have that Declaration of Human Rights. Now that declaration, which was supposed to be merely a statement of aspirations, has been in effect some years. I want to call your attention to the fact that in the United Nations

Bulletin of August 15, 1952, it was stated, and I am quoting this one sentence:

No less than 25,279 communications alleging violations of human rights have been received by the Secretary General.

That is in 1 year, and in 4 or 5 years I think we can safely assume it has been over 100,000. Just think of this Pandora's box of poisonous political propaganda that will be presented on a silver platter to our enemies by this idea of making complaints before an international body. But, Mr. Chairman, you might say, "Well, that will be all lost at Lake Success."

Let me call your attention to the succession of events. That was the statement of aspirations. The next thing which comes is the Covenant of Human Rights, which is to make that a binding commitment by this Government. What comes next? Among the 200 treaties that are being proposed is a treaty creating an international criminal court, jurisdictions somewhat unknown.

I think is it fair to assume, Mr. Chairman, that in all probability there will be an effort made, if this Covenant of Human Rights is adopted, to confer jurisdiction on this international court to determine the rights of our citizens. Now that convention in the draft form it is now in by article XXXVII specifically and expressly says there shall be no trial by jury. It provides that our citizens can be tried overseas and by whom? A court, if it please the chairman, a court composed of all but one of foreign judges, including judges from other countries who have no conception of our independent judiciary but think only of the judges as an arm of the political government.

Enough on the question of dangers, if it please the court. It seems to me that that shows the danger and the necessity of the first sentence, or something similar to that as proposed by the American Bar Association to prevent the conflict between the treatymaking power and the Constitution.

Now I should like to say this: Many of my friends and many good citizens are in favor of world government, world federalism, and this and that. I am against it. But my main point is that we should not drift into it and that we have provided in our Constitution that if our people who adopted the Constitution want something of that sort they can do it under the amending power.

Let me say briefly under the amending power, note the contrast between the amending power in the Constitution and the treatymaking power. On the one hand, in your treatymaking power the proposed treaties are proposed by a committee of some 60 foreign nations, not a single representative of that committee being elected by our people. Now that is the way they are proposed, as contrasted, of course, with the usual way of our constitutional amendments which are proposed by the Congress, two-thirds of each House, or by a constitutional convention called by the legislature.

Take the question of ratification. On the one hand, you have no ratification whatsoever of a treaty by three-fourths of the legislatures or the conventions in the State. So I say if you want a world government or something like that it should be by the deliberate act of the American people and not drifting into it by this method. proposed in this way at Lake Success and not ratified by the legislatures.

Just one further thought, and this is the second sentence of our proposed constitutional amendment. That sentence, as the chairman will recognize, is the sentence which provides that a treaty shall become effective as internal law in the United States only through legislation by the Congress which it could enact under its delegated powers in the absence of the treaty.

What I want to come to grips with is the one major objection that has been made, which is not the first part of this sentence because almost everybody can see it is all right to have a treaty made non-selfexecuting, so we are on a parity with other nations. What I want to particularly emphasize, and I do not think it has been emphasized or touched upon at all, is the last part of this sentence, the so-called "which" clause requiring them to act within their present delegated power, a tremendously important clause.

I am not going into the arguments that have already been made on the fact that Congress has already a great many delegated powers, the commerce power, and so forth. What I want to emphasize is something I have been a little bit worried about in connection with this treaty amendment, and that is the question that has bothered me from the beginning as to whether the Supreme Court will take jurisdiction over the question of whether a treaty conflicts with the Constitution or whether they will say that that is purely a political matter that the coordinate branches of government should follow. You see, the moment you put in there that there have to be laws implementing, then those laws necessarily are subject to the Constitution.

This is the one point I want to make. Let me just point out the reason why I am so dreadfully concerned about this one point, whether the Supreme Court would take jurisdiction. I am talking now about the one clause to which there has been most objection, the "which" clause; that is, the clause saying that Congress must pass implementing legislation within its delegated powers, and I am making the point which I think has not been made, at least not very fully, and that is that I fear that unless you provide that there have to be laws which will stand the test of constitutionality that the Supreme Court may say they have no jurisdiction to hold a treaty unconstitutional. I was about to elaborate on that in a very few sentences. In the first place, let me quote you one sentence from Curtiss v. Wright, which is a very recent case. The sentence is, "The vestment of the Federal Government with the powers of external sovereignty did not depend upon the affirmative grant of the Constitution."

Now, you see, Mr. Chairman, what that means, that that is the doctrine that there is inherent power in the Federal Government, and, therefore, that is not derived from the Constitution. Now are we going to assume, are we going to assume, that the Supreme Court of the United States is going to, analogous to Marbury v. Madison, say that they have power to hold a treaty unconstitutional if all we say is that a treaty shall not be contrary to the Constitution? They may say it is a political question.

I go back to Curtiss v. Wright for the reason that your Marbury v. Madison consists of setting down the Constitution coming from the higher authority and the Congress, which is the agent of the people, and the inconsistency between the two.

Now you take your Curtiss-Wright doctrine, that they are an inherent power, and I am not at all sure that the Supreme Court of the United States would hold that they had the power to hold the treaty unconstitutional, whereas if you say that they must be followed by laws, which we know must meet the test of constitutionality, then we will be safe on that.

Another place you will find a good deal of discussion on the treatymaking power is in section 460 in Butler, which I just give for reference, and you will find in the Ninth Circuit in the case of United States v. Reid (73 Fed 2d 155), it is stated:

It is doubtful if the courts have power to declare the plain terms of a treaty void and unenforceable.

What I am worried about, Mr. Chairman, is that you put in a statement that the treaty shall not be inconsistent with the Constitution, and the Supreme Court may say, "But that is monitory on the Executive and the Senate, and it is not binding. We have in our State of Maryland a number of constitutional provisos which our courts have held as monitory and auditory on the other branches of the Government but are not enforced by the courts and so one of the reasons, one of the major reasons, why I have been willing to accept what little criticism may be leveled at this so-called "which" clause is because I have been extremely anxious right from the beginning to make certain that the Supreme Court will pass on it.

When I first proposed an amendment back in 1950, 3 years ago, I took a very awkward way of going at it. I said in the amendment isself, I made it mandatory on the court to pass on constitutionality, you see. Now this is a very much simpler way because it says that there shall be laws which necessarily must stand the test of constitutionality. Mr. Chairman, I thank you very much for your patience in hearing me.

The CHAIRMAN. Thank you.

Senator Dirksen?

Senator DIRKSEN. You concur in the objectives to be sought by this bill?

Mr. OBER. Absolutely.

Senator DIRKSEN. But you want to be sure that it is enforceable and that there will be enforcement of it?

Mr. OBER. Yes. I am entirely in favor of the amendment I have made this statement with the object of supporting the one part that there has been criticism of, and I say that I am entirely sure that the Supreme Court will have to pass on it and will not say it is a po litical question if you retain the "which" clause, which says that there must be implementing legislation, which necessarily, of course, has to stand the test of constitutionality.

Senator DIRKSEN. Did you work out the amendatory language which you have in mind with respect to Senate Joint Resolution I? Mr. OBER. The language I have in mind is the language of the American Bar Association.

Senator DIRKSEN. I see.

Mr. OBER. You see, as soon as it says that there must be implementing legislation, you get around the thing that is worrying me, because as soon as you say there must be laws, necessarily those laws must be consistent with the Constitution, so I say that that is a major

reason in my mind for supporting the American Bar amendment, including the last clause as written.

The CHAIRMAN. Thank you very much, Mr. Ober.
Mr. OBER. Thank you, gentlemen.

STATEMENT OF MRS. JAMES C. LUCAS, EXECUTIVE SECRETARY,
NATIONAL SOCIETY, DAUGHTERS OF THE AMERICAN REVOLU-
TION

The CHAIRMAN. Mrs. Lucas, you represent the Daughters of the American Revolution?

Mrs. LUCAS. Yes. I am Mrs. James C. Lucas, executive secretary, National Society, Daughters of the American Revolution.

The CHAIRMAN. Do you have copies of your statement?

Mrs. Lucas. Yes.

The CHAIRMAN. May we have them?

Senator Watkins wishes to inform you that he is sorry he cannot stay to hear your statement. He has another hearing.

Mrs. LUCAS. I understand, Senator.

I represent 2,737 chapters, with over 171,000 members. The objectives of the national society are patriotic, historic, and educational. The 61st Continental Congress of the National Society, Daughters of the American Revolution, passed a resolution endorsing the Bricker amendment.

Whereas, article 6, paragraph 2, of the Constitution of the United States provides that a treaty becomes the supreme law of the land; and

Whereas there now exist many conventions or treaties already passed by the United Nations General Asembly, which, if granted treaty rights, will nullify the Constitution of the United States:

Resolved, That the National Society, Daughters of the American Revolution, urge Congress to adopt Senate Joint Resolution No. 1 to prevent treaties becoming the supreme law of the land;

Resolved, That every Daughter attending this Congress considers herself pledged to go home and make known to her two Senators the urgent need of the adoption of this resolution.

Also adopted was a resolution opposing world government:

Whereas the Charter of the United Nations was adopted upon the thesis that the Big Five, and the other nations which should sign the charter, should retain their individual sovereignty as free and independent nations, combining their efforts and, under certain conditions, their armaments in a joint effort to promote and maintain peace:

Resolved, That the National Society, Daughters of the American Revolution, uphold that interpretation of the United Nations Charter and reiterate their oposition to any attempt to bring about, through the United Nations or by any other medium, a world government or a partial world-government organization. I urge your subcommittee to approve Senate Joint Resolution No. 1 as soon as possible.

The Daughters of the American Revolution have a special interest in section 2 of the proposed amendment. My testimony will be limited to that section.

If section 2 of Senate Joint Resolution No. 1 is adopted and ratified by the required number of State legislatures, three-fourths of the 48, then it would require an amendment to the Constitution before the United States could surrender its sovereignty to any world or regional government.