similar rejection of such a limited construction as to the Chief Executive. In Watson v. Jones (13 Wall. (80 U. S. 679 (1871)), the Supreme Court held that the freedom of religious association guaranteed by the first amendment deprived the Court of power to adjudicate ecclesiastical matters. Similarly the courts have discussed the question of possible infringements of the first amendment in enjoining trade boycotts, libels, and similar publications in the exercises of their equity jurisdiction in the absence of statute, e. g., Gompers V. Buck's Stove & Range Co. (221 U. S. 418 (1911)); Coeur d'Alene Mining Co. v. Miner's Union (51 Fed. 260 (Idaho 1892)).

In the Gompers case, for example, the Court said:

"Insisting, therefore, that the Court could not abridge the liberty of speech or freedom of the press, the defendants claim that the injunction as a whole was a nullity, and that no contempt proceeding could be maintained for any disobedience of any of its provisions, general or special. *** The defendants' attack on this part of the injunction raises no question as to an abridgment of free speech, but involves the power of a court of equity to enjoin the defendants from continuing a boycott which, by words and signals, printed or spoken, caused or threatened irreparable damage." [Italics supplied.]

Perhaps the most decisive argument in favor of the view that the President is bound by the first amendment is that ample justification in both law and policy can be adduced in support of an interpretation of the first amendment which would include both the President and the executive branch within its prohibitions and that no such justification can be shown for the contrary interpretation. That interpretation must rely wholly on the literal language of the amendment, and must of necessity be based on the premise that mention of one branch of the Federal Government in that amendment implies an intent on the part of the draftsmen to exclude the other branches. However, no evidence of such intent can be shown. Nor can such intent be spelled out either from an analysis of the needs the Bill of Rights was framed to meet or the spirit in which the amendment was conceived. On the contrary, all these factors point irresistibly to the opposite interpretation.

Mr. MASLOW. This memorandum cites a case recently decided by the United States Supreme Court. The case is known as Joint AntiFascist Refugee Committee v. McGrath. You may remember that was the case where this organization challenged the authority of the President and the Attorney General to list them as subversive on the Attorney General's list. Six judges of the Supreme Court in the course of that opinion indicated, in construing the President's power to set up such a list, that the President's power was limited by the first amendment. And, indeed, it would come as a shock to us to believe, for example, that the President could establish an official religion where Congress could not, and, similarly, if that language is to be read literally, it would mean likewise that the courts are not bound by the first amendment since all that that language provides is that "Congress shall make no law." And yet the courts have time and time again-perhaps I should not say time and time againthe courts have indicated that they, as well as the President, are bound by the first amendment.

Now, there is another misconception of Senator Bricker and those who have testified in support of this resolution, and that is that once a treaty is ratified, and that it affects the domestic law of this country, that treaty is then immutable and not subject to any further governmental change. I submit to you that is incorrect. The courts have held that where there is a conflict between a treaty which affects domestic legislation and a later act of Congress, whichever is last in time prevails. This doctrine was enunciated in one famous case involving the exclusion of Chinese in the 19th century. It is Chae Chan Ping v. United States (130 U. S. 581), decided in 1889.

There, you may remember, America had entered into a treaty, the conventional treaty of commerce, friendship, and navigation with

China which allowed the immigration of Chinese into this country. While the treaty was in effect Congress passed a statute which restricted the right of Chinese to come to this country. The Chinese challenged that treaty, or that statute in the courts, and relied upon the treaty, and the court held that the satute governed and not the treaty.

The same thing was held in the case called Hijo v. United States (194 U. S. 315), decided in 1904, in which the Court said, at page 324:

It is well settled

in other words, it is not arguable—

It is well settled that in the case of a conflict between an act of Congress and a treaty * ** the last one in date must prevail ***

If the United States Senate has improvidently ratified any treaties, and these treaties have had an undesirable effect upon domestic legislation, nothing prevents Congress from canceling those treaties as far as their domestic effect is concerned, or modifying them or doing whatever else is necessary. We don't need a constitutional amendment if we discover we have made a mistake in any treaty which has effects upon our domestic legislation.

Now, Senator Bricker made another statement which explains the motivation, his motivation, in introducing his resolution. I cannot put my hand on it, but the effect was that Senator Bricker feared that the draft Covenants on Human Rights would be used as a substitute for legislation and that they were intended as devices to circumvent the Constitution and to give Congress the power to legislate where it now cannot legislate. I think a short answer to that fear is the so-called Federal clause of the draft Covenant on Human Rights. I am reading from the text of those drafts as reprinted in the Department of State Bulletin of July 7, 1952. The United States representatives at the U. N. have insisted upon the inclusion of such a Federal clause, and that clause provides:

This covenant shall not operate so as to bring within the jurisdiction of the Federal authority of a Federal state making such declaration, any of the matters referred to in this covenant which independently of the covenant, would not be within the jurisdiction of the Federal authority.

3. Subject to paragraph 2 of this article, the obligations of such Federal state shall be:

and then there are two paragraphs, and I would like to read them each into the record.

(a) In respect of any provisions of the covenant, the implementation of which is, under the constitution of the Federation, wholly or in part within Federal jurisdiction, the obligations of the Federal Government shall, to that extent, be the same as those of parties which have not made a declaration under this article.

(b) In respect of any provisions of the covenant, the implementation of which is, under the constitution of the Federation, wholly or in part within the jurisdiction of the constituent units (whether described as states, provinces, cantons, autonomous regions, or by any other name), and which are not, to this extent, under the constitutional system bound to take legislative action, the Federal Government shall bring such provisions with favorable recommendations to the notice of the appropriate authorities of the constituent units, and shall also request such authorities to inform the Federal Government as to the law of the constituent units in relation to those provisions of the covenant.

What does that mean? It means that if a treaty respecting human rights is signed and a country like ours makes a declaration that it

is a federal country, it has a federal form of government, the obligations of the country are twofold: (a) With respect to those matters wholly or in part within the Federal jurisdiction it shall carry out whatever it has promised under the treaty.

(b) As to those matters which are not entrusted by the Constitution to the Federal Government but which are within the jurisdiction of the states, what the United States has promised to do, or would promise to do, is to bring those matters to the attention of the state governments, and thus the United States would be on a par with governments which are not federal.

Now, that federal clause has been advocated since 1947 in the draft covenant and has been in every version that the United States has submitted. And as long as the United States submits that federal clause there is no danger, I submit to you, that the draft covenant can change the essential relationship between Federal Government and State government in this country, or that the Federal Government would be given the power to legislate as to State matters. And if, perchance, any treaty should be submitted to the Senate which does not have that Federal clause in it, the Senate has three courses of action. It can direct, it can refuse to ratify the treaty and instruct the State Department to insert such a clause and to renegotiate it, or it can put reservations in the treaty, and as long as that is done there is no danger.

Now, one other misconception of Senator Bricker.

The CHAIRMAN. Just a noment. What is your opinion of that, Mr. Smithey? That is, the last thing he said there.

Mr. SMITHEY. Senator, that is directly contrary, as I understand it, to what the President's Commission on Civil Rights advocated in 1946. They said that if the Covenant on Human Rights is adopted an even stronger basis for the adoption of certain civil rights proposals by the Congress could be had. I think the bar association has presented that statement. I think that there is a controversy on this point. I think Mr. Maslow recognizes that. His opinion is as he indicated. But the question of whether the Covenant on Human Rights could possibly change any rights that the Federal Congress might have, I think that that is in dispute. I think there are certain witnesses who have appeared before this committee previously who have indicated that it is in dispute. There are legal minds who hold to the contrary of the opinion of Mr. Maslow.

The CHAIRMAN. In other words, you do not agree with the witness. Mr. SMITHEY. No.

Mr. MASLOW. I do not want to engage in a legal argument, sir, at this time. I just want to make one point, though: whatever the President's Commission said in 1946, this federal clause was submitted by the United States mission in 1947. And they may very well have submitted it in view of the statement of the President's Commission in 1946.

I do not think, Mr. Smithey, or gentlemen, that it is really a question of legal argument. Here is the statement of the Department of State representative. He says:

The federal state article would insure that the constitutional balance between the powers delegated by the federal constitution to our Federal Government on the one hand and the powers reserved to the States on the other would not be altered by the proposed covenants on human rights.

And it is perfectly appropriate, if this language is not clear enough, if Mr. Smithey or any others believe that this language is not sufficiently precise, or not sufficiently comprehensive, to draw language that is sufficiently precise and comprehensive and insert it in the draft covenant, because I am sure that those persons who are representatives of the United States who are charged with the responsibility of negotiating this article are fully aware of this danger.

I know I have discussed this problem with Mrs. Roosevelt, and she has maintained that this federal clause is essential and that the United States mission would never accept a treaty without the federal clause. Mr. SMITHEY. Mr. Maslow, I do not care to engage in an argument, but I do want to read into the record at this point one of the articles of the Covenant on Human Rights as it was introduced in the record on the hearings on Senate Joint Resolution 130. It happens to be article II and I think you are familiar with that, Mr. Maslow. Section 1 of article II says:

In the case of a state of emergency officially proclaimed by the authorities or in the case of public disaster, a state may take measures derogating, to the extent strictly limited by the exigencies of the situation, from its obligations under article I, paragraph 1, and part II of this covenant.

And it goes on to say in section 2:

No derogation from articles III, IV, V (pars. 1 and 2), VII, XI, XII, and XIII may be made under this provision.

Now, one of the articles that is excepted from section 2 is artcle VI, which says, in section 1:

No one shall be subjected to arbitrary arrest or detention.

Now, in the event of an interpretation of this covenant on Human Rights and the Federal state clause which you have indicated, which do you think would prevail? Would the Federal Government under the Covenant on Human Rights, the draft Covenant on Human Rights, have the right to derogate under an emergency from this provision which provides "No one shall be subject to arbitrary arrest or detention"?

Mr. MASLOW. I am glad you raised the point. I was just about to come to it. Senator Bricker makes the same point. This is the socalled derogation clause.

Mr. SMITHEY. That is right.

Mr. MASLOW. He refers to it as "one of the most vicious articles in the draft covenant is article II." I think he is simply laboring under a misapprehension, and perhaps I can take a moment to explain this derogation clause. The United States is engaged in a vast effort, along with 60 other nations, to improve civilized standards throughout the world. We are justly proud of our Bill of Rights. We are justly proud of our Constitution. And we have endeavored to raise the standards of countries all over the world.

As you may know, there is only one provision of our Constitution. which can be suspended in times of war or emergency, and that is the right of habeas corpus, and that can only be suspended in cases of actual invasion. Other countries of the world, however, do not enjoy our freedoms, and many of them have provisions which allow these countries, in time of emergency, or what they call states of seige, to reduce or suspend constitutional guaranties.

The United States, therefore, in attempting to negotiate a treaty was stricken with the fact of these other countries' unwillingness to adopt fixed and rigid guaranties, and so a clause was put in allowing countries to modify rights.

The point that Mr. Smithey makes, and I think that Senator Bricker makes, is that provision for the benefit of other countries may in some way operate to allow the United States Government to suspend constitutional guaranties. There are two answers to that. First, there is a derogation clause itself which reads, as I quote from paragraph 2: There shall be no restriction upon or derogation from any of the fundamental human rights recognized or existing in any contracting state pursuant to law, conventions, regulations, or custom, on the pretext that the present covenant does not recognize such rights or that it recognizes them to a lesser extent.

In other words, the mere fact that this draft covenant does not embody all the rights of American citizens, or does not recognize them to the same extent that we do, does not entitled the United States to modify its rights. What we are doing is trying to raise the standards of other countries; we are not trying to modify our own.

The second answer is the answer I have given before. No treaty can in any way conflict with an enumerated right in the Constitution, if I read the Supreme Court cases correctly.

Mr. SMITHEY. Let me ask you this further question, Mr. Maslow

Mr. MASLOW. May I just take one second. Perhaps it might be of use to have introduced in the record this bulletin of the State Department with all of the texts of the provisions in it, together with the commentary.

Senator DIRKSEN. Does that appear in the earlier hearings?

Mr. SMITHEY. This is a later draft of the covenant, is that not right?

Mr. MASLOW. I think so. This is July 7, 1952.

Mr. SMITHEY. The one appearing in the record on Senate Joint Resolution 130 was dated 1951.

Mr. MASLOW. If it is of use to you and the gentlemen of the committee, I would be glad to introduce it.

Senator DIRKSEN. Suppose you submit it. Secretary Dulles is either going to submit a statement or is going to appear, and it is entirely possible that he may submit some fortifying documents along with his statement. If, however, he does not include it in his statement, I think properly it might be included in the record.

Mr. MASLOW. I think perhaps I ought to identify it. It is a reprint from the Department of State Bulletin of July 7, 1952 and it is entitled "Progress Toward Completion of Human Rights Covenants."

(The material referred to is as follows:)

PROGRESS TOWARD COMPLETION OF HUMAN RIGHTS COVENANTS

Two COVENANTS ON HUMAN RIGHTS BEING DRAFTED: DRAFTS RELATING TO CIVIL AND POLITICAL RIGHTS AND TO ECONOMIC, SOCIAL AND CULTURAL RIGHTS REVISED AT 1952 SESSION OF U. N. COMMISSION ON HUMAN RIGHTS

By James Simsarian

The U. N. Commission on Human Rights reviewed sections of the two draft Covenants on Human Rights at its 9-week session at New York from April 14 to June 13, 1952. The Commission decided to ask the Economic and Social