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I submit to you that nothing could be further from the truth. The treatymaking powers have been used as instruments of domestic legislation even before the adoption of our Constitution, and it was the primary purpose of the Founding Fathers, when the treatymaking power was set forth in the Constitution, to provide that it should be supreme over domestic legislation. One of the very first treaties ratified by the Senate was the treaty following the Revolutionary War, which we negotiated with Great Britain, and that treaty provided for the settlement of the rights of British creditors against American citizens, and, obviously, it conflicted with domestic legislation. It conflicted with the laws of Virginia. But the Senate of the United States believed it was more important to preserve the rights of American creditors in England and more important to negotiate a peace treaty with Great Britain than it was to maintain inviolate the laws of Virginia. So, throughout our history there have been innumerable occasions when treaties have been enacted deliberately designed to conflict with domestic legislation. And it is inevitable, sir, I submit to you, when we have a government like ours, a Federal Government, which governmental powers are divided between State and Federal Government, the Federal Government must be supreme. And there may be occasions when the Federal Government, in pursuance of its treatymaking power and its dealing with foreign nations, will take steps which conflict with domestic treaties. What we do rely upon, however, to insure that the fundamental nature of our Government and the relationships between Federal Government and States shall remain the same, is that the Senate will not knowingly ratify a treaty which does needless violence to domestic legislation.

I think the Bricker resolution is motivated by some other misconceptions. One of these misconceptions is that a treaty is superior to the United States Constitution. And Senator Bricker cites in support of that statement a case known as United States v. CurtissWright Export Corporation. Its citation is 299 U. S. 304. And I have noticed that some of the witnesses today made the same statement that a treaty may be superior to a specific provision of the Constitution.

The very case cited by Senator Bricker, the Curtiss-Wright case, says in so many words, and, with your permission, I would like to read just one paragraph:

It is important to bear in mind that we are here dealing not alone with an authority vested in the President by an exertion of legislative power, but with such an authority plus the very delicate plenary and exclusive power of the President as the sole organ of the Federal Government in the field of international relations, a power which does not require as a basis for its exercise an act of Congress, but which, of course, like every other governmental power, must be exercised in subordination to the applicable provisions of the Constitution.

Note that language:

like every other governmental power, must be exercised in subordination to the applicable provisions of the Constitution.

The same holding was made in the famous case of Geofroy v. Riggs, decided in 1890. In that case the Supreme Court said in this unmistakable language, and I quote again. The citation is 133 U. S. 258 at 267. Here is what the Court said:

It would not be contended that it extends so far as to authorize what the Constitution forbids, or a change in the character of the Government or in that

of one of the States, or a cession of any portion of the territory of the latter, without its consent.

The "it" referred to there is the treatymaking powers. And the Court, you notice, says that "It would not be contended" even that the treatymaking power extends so far as to authorize what the Constitution forbids.

Another leading case in support of the proposition that the Constitution is supreme, and not the treatymaking power, is the famous case of Missouri v. Holland, known to every law student, the Migratory Bird case. There the Court held:

The treaty in question does not contravene any prohibitory words to be found in the Constitution.

And there are other cases cited on page 4 of our memorandum to the same effect.

Mr. SMITHEY. Did you say "held" or "stated"?

Mr. MASLOW. Stated, I should say.

In fact, sir, with all modesty, I challenge anyone to cite a single case of the United States Supreme Court which holds that the treatymaking power is superior to the specific enumerated provisions of the Constitution.

An argument is often made arising from the language of article VI of the Constitution. You remember article VI, the so-called treatymaking article, provides:

This Constitution and the laws of the United States which shall be made in pursuance thereof shall be the supreme law of the land.

And it says also:

And all treaties made or which shall be made under the authority of the United States shall be the supreme law of the land.

An argument has been made that, since it provides that the laws must be made in pursuance of the Constitution, and the treaty is merely made under the authority of the United States, the treaties do not have to be made in pursuance of the Constitution. I think that reading is due to a historical misconception. The reason for that language was that there were certain treaties entered into by the United States, before the Constitution was ratified; and, therefore, it was necessary to provide that these treaties entered into before our Constitution was signed were to become the supreme law of the land. One of these treaties was the treaty of peace with Great Britain.

There is another misconception which perhaps may motivate Senator Bricker and some of his cosponsors, and that arises again, I believe, from a misreading of the first amendment of the Constitution. You remember the first amendment provides:

Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof or abridging the freedom of speech

and so on.

The argument has been made that that language "Congress shall make no law" is not a prohibition upon the executive branch and, therefore, the President is free through treaties to violate the most important amendment in the Bill of Rights, the first amendment.

When I testified last year, sir, Senator Hendrickson asked me about that question, and I asked leave to submit a memorandum on the point. I did submit a memorandum, but through inadvertence, per

haps, it was not introduced in the record. With your permission, I would like to introduce a copy of that memorandum.

Senator DIRKSEN. It will be included.

The CHAIRMAN. Is it very long?

Mr. MASLOW. It is nine pages. That is brief for a memorandum on constitutional law.

Senator DIRKSEN. I think it is important on this very important point, and since it was inadvertently omitted last year it will go in. (The material referred to is as follows:)

IS THE PRESIDENT BOUND BY THE FIRST AMENDMENT

The first amendment to the Constitution of the United States provides that "Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof; or abridging the freedom of speech, or the press; or the right of the people peaceably to assembly, and to petition the Government for a redress of grievances."

Read literally, this amendment expresses no limitation on the action of the Executive or the judiciary and would permit infringement of our basic liberties by these officials without legal recourse to the individual oppressed. Such an interpretation would seem, however, to be incompatible with the pattern of a government of limited powers with safeguards for individual liberty embodied in the Constitution and is not in accord with the principles espoused and practiced in this country from the adoption of the Constitution to date. Consequently, it would appear both necessary and proper to examine the circumstances surrounding the adoption of the first amendment, the gloss put on it by the courts, and the actual practice of the judiciary and the executive branches in order to determine whether the literal meaning must be discarded in favor of an interpretation which captures more fully the basic spirit and intent of the constitutional draftsmen.

Students of the subject have advanced varying reasons for the omission of a limitation on the President and the judiciary in the first amendment. One explanation has been that since the amendments to the Constitution were framed to meet specific objections made concerning the power of Congress the framers were not concerned with and therefore neglected to express limitations on the President and the Judiciary (Zechariah Chafee, U. N. Covenant on Human Rights, 1951, Wisconsin Law, Rev. 389, 449).

A second explanation given for the particular grammatical formulation in the first amendment is based on an analysis of the changes made in the original draft of the amendment. As originally drafted by Madison, the amendment contained three separate proposals, all in the passive tense (1 Annals of Congress 434 (June 8, 1789) 1834 ed.).

For example, the draft provided with respect to freedom of religion that "The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed."

The proposals with respect to freedom of speech and freedom of assembly were couched in similar terms:

"The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable.

"The people shall not be restrained from peaceably assembling and consulting for their own common good nor from applying to the Legislature by petition, or remonstrances for redress of their grievances."

The original draft of the amendment also contained a provision dealing with prohibitions on the States: "No State shall violate the rights of conscience, or the freedom of the press, or the trial by jury in criminal cases" (1 Annals of Congress 435, 1834 ed.).

Thereafter, because of objections from the States, the provision concerning the States was eliminated. Thereupon the draftsmen, desirous no doubt of assuring that the amendment express no limitation on the States, changed the sentence structure from the passive construction which could be viewed as such a limitation to the active construction “Congress shall make no law ***” There is no indication, however, that by specifying "Congress," they intended to exclude the Executive from the prohibition of this amendment.

At least six justices of the Supreme Court have indicated that, when brought in issue, the first amendment must be considered in determining the validity of Executive action. In Joint Anti-Fascist Refugee Committee v. McGrath (341 U. S. 123 (1951)), the Supreme Court was concerned with the constitutionality of the action of the Attorney General pursuant to the President's loyalty order (Executive Order No. 9835) in designating certain organizations as Communist or subversive. No legislative act empowered or directed the President to promulgate such an order. The petitioning organization challenged the Attorney General's action and the Executive order as violative of the 1st, 5th, 9th, and 10th amendments.

Justice Black in a concurring opinion and Justice Reed in a dissenting opinion in which Chief Justice Vinson and Justice Minton joined, explicitly considered the question whether the Executive order violated the first amendment. Justice Black stated (at p. 143):

"More fundamentally, however, in my judgment the Executive has no constitutional authority, with or without a hearing, officially to prepare and publish the lists challenged by petitioners. In the first place, the system adopted effectively punishes many organizations and their members merely because of their political beliefs and utterances, and to this extent smacks of a most evil type of censorship. This cannot be reconciled with the first amendment as I interpret it." [Italics supplied.]

Justice Reed set forth the same view about the applicability of the first amendment. He stated (at p. 199):

"First amendment.-Petitioners assert that their inclusion on the disloyal list has abridged their freedom of speech, since listeners or readers are more difficult to obtain for their speeches and publications, and parties interested in their work are more hesitant to become associates. The refugee committee brief adds that 'thought' is also abridged. A concurring opinion accepts these arguments to the point of concluding that the publication of the lists 'with or without a hearing' violates the first amendment.

"This Court, throughout the years, has maintained the protection of the first amendment as a major safeguard to the maintenance of a free republic. This Nation has never suffered from an enforced conformity of expression or a limitation of criticism. But neither are we compelled to endure espionage and sedition. Wide as are the freedoms of the first amendment, this Court has never hesitated to deny the individual's right to use the privileges for the overturn of law and order * * *."

These Justices implicitly accepted and assumed the proposition that the President is bound by the first amendment. The opinion of the Court (delivered by Justice Burton and in which Justice Douglas joined), although it did not discuss the substantive issue of whether the loyalty order offends the first amendment stated that under certain circumstances, not here relevant, the order would have raised questions under the first amendment, thus indicating that these two Justices are also of the opinion that an Executive order as well as the law of Congress must meet the standards of the first amendment.

Justice Burton said (at p. 136):

"If, upon the allegations in any of these complaints, it had appeared that the acts of the respondents, from which relief was sought, were authorized by the President under his Executive Order No. 9835, the case would have bristled with constitutional issues. On that basis the complaint would have raised questions as to the justiciability and merit of claims based upon the 1st, 5th, 9th, and 10th amendments to the Constitution. It is our obligation, however, not to reach those issues unless the allegations before us squarely present them.'

In Ex parte Milligan (4 Wall. (71 U. S.) 2 (1886)), the Supreme Court was concerned with the question whether a military tribunal appointed by the President could constitutionally, during a period when the civil courts were functioning, arrest and try a civilian, the President's action was challenged on the ground that it violated the fourth, fifth, and sixth amendments to the Constitution. Although the issue of violation of the first amendment was not raised, the language of the opinion seems to bring that amendment within those guaranties which the President cannot violate. At page 124, the Court said:

"It is claimed that martial law covers with its broad mantle the proceedings of this military commission. The proposition is this: That in a time of war the commander of an armed force (if in his opinion the exigencies of the country demand it, and of which he is to judge), has the power, within the lines of his military district, to suspend all civil rights and their remedies, and subject citi30572-53-21

zens as well as soldiers to the rule of his will; and in the exercise of his lawful authority cannot be restrained, except by his superior officer or the President of the United States. * * *

"The statement of this proposition shows its importance; for, if true, republican government is a failure, and there is an end of liberty regulated by law. Martial law, established on such a basis, destroys every guaranty of the Constitution, and effectually renders the 'military independent of and superior to the civil power'-the attempt to do which by the King of Great Britain was deemed by our fathers such an offense, that they assigned it to the world as one of the causes which impelled them to declare their independence.

"For this, and other equally weighty reasons, they [the founding fathers] secured the inheritance they had fought to maintain by incorporating in a written Constitution the safeguards which time had proved were essential to its preservation. Not one of these safeguards can the President or Congress disturb, except the one concerning the writ of habeus corpus." [Italic supplied.]

The Circuit Court of Appeals of the District of Columbia in the case of Dailey v. Richardson (182 F. 2d, 46 (D. C. Cir. 1950)), also discussed whether the President's loyalty order violated the first amendment, holding by implication that the President's actions are limited by the safeguards contained therein. The Court at page 59 stated:

"It is next said that appellant's dismissal impinged upon the rights of free speech and assembly protected by the first amendment, since the dismissal was premised upon alleged political activity. This suggestion goes not to the procedure but to the ultimate validity of the dismissal itself. But the plain hard fact is that so far as the Constitution is concerned, there is no prohibition against the dismissal of Government employees because of their political beliefs, activities, or affiliations. That document, standing alone, does not prevent Republican Presidents from dismissing Democrats or Democratic Presidents from dismissing Republicans."

Legal scholars also have contended that the Executive is bound by the prohibitions of the first amendment which are incorporated in the fifth amendment. The fifth amendment provides that "no person shall *** be deprived of life, liberty, or property without due process of law ***" The identical language appears in the due-process clause of the 14th amendment. The Supreme Court has held that "liberty" in the due-process clause of the 14th embraces all the freedoms of the 1st amendment and prevents their abridgment by every branch of the State government. Gitlow v. New York (268 U. S. 652, 666 (1925)); Near v. Minnesota (283 U. S. 697, 707 (1931)). Since the language of the amendments is identical, it cannot be denied that the "liberty" in the due-process clause of the fifth amendment also embraces the freedoms of the first and extends their prohibition to all branches of the Federal Government, including the executive.

This was the view adopted by Judge Edgerton in his dissents in the Joint AntiFascist case (179 F. 2d, 79 (D. C. Cir. 1950)), and the case of Bailey v. Richardson (182 F.2d, 46 (D. C. Cir. 1950)). In the Joint Anti-Fascist case, Judge Edgerton prefaced his discussion of whether the President's Executive order contravened the first amendment by a specific reference to the fact that read literally that amendment applies only to Congress. However, he went on to state (at p. 87) that since "the due-process clause of the 14th amendment extends the prohibition to all State action, the due-process clause of the 5th amendment must extend it to all Federal action." Of course, Edgerton views Presidential action as "Federal action."

In support of his statement Judge Edgerton cited the following language of the Supreme Court in United Public Workers v. Mitchell (330 U. S. 75, 94-95 (1947)) : "Thus we have a measure of interference by the Hatch Act and the rules with what otherwise would be freedom of the civil servaint under the 1st, 9th, and 10th amendments. If we look upon due process as a guaranty of freedom in those fields, there is a corresponding impairment of that right under the fifth amendment. Appellant's objection under the amendments are basically the same."

The argument that the President is bound by the 1st amendment as transmitted through the 5th amendment, since the 5th amendment has the same content as the 14th which in turn subsumes the protections of the 1st is also adopted by Chafee, U. N. Covenant on Human Rights (1951 Wis. L. Rev. 389, 441, 453).

The view that the President is bound by the first amendment is further bolstered by reference to decisions of the courts which indicate that the judiciary considers itself bound by that amendment. Their rejection of the literal reading of the first amendment with respect to their own obligations clearly implies a

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