legislate, the consent of the several States must be appropriately obtained; such is the case, for example, in Canada, which is also a federal state. (See American Bar Association Journal, September 1952, p. 794; ibid., June 1952, p. 469.)

Those who object to the so-called which clause in the American Bar Association treaty proposal fail to appreciate the real significance of this clause to the preservation of our form of government against the abuse of the treaty power, originating in the type of agreements which the executive arm of the Government has been negotiating in the last few years in the name of human rights and in other areas. Without such a constitutional limitation, and within the recent State Department concept that "there is no longer any real distinction between 'domestic' and 'foreign' affairs" (see American Bar Association Journal, September 1952, p. 737, the President and two-thirds of the Senators present could take over the entire area of internal law now reserved to the States.

"Supporters of the association's amendment have been challenged to point to any ratified treaty raising questions that show the need for a constitutional limitation on the treaty-making power. The only treaty which has actually been ratified is the United Nations Charter itself, which has undoubtedly, under Missouri v. Holland already conferred on Congress the unlimited power to implement by legislation treaties on all matters, including individual rights, covered by that instrument" (American Bar Association Journal, September 1952, p. 796).

Your committee has for several years given constant and serious study as to the most effective means of dealing with these real and potential extensions of the treaty-making power. After considering all alternatives, it concluded that the only sure safeguard against present and future risk is a constitutional amendment, which while preserving the treaty-making power in all its effectiveness in matters which are genuine subjects of international agreement, will close the gap for such distortions as those just mentioned. The house of delegates agreed. To date almost no objection has been voiced to the second section, designed to make it clear and unequivocal that Congress has the power "to make all laws which shall be necessary and proper" to control executive agreements (Constitution, art. I, sec. 8, cl. 18; Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579 (June 2, 1952); Ex parte Quirin, 317 U. S. 1, 25-27, 29; Report of Committee on Peace and Law, September 1, 1952). Congress and the public seem unanimous that Executive agreements should be controlled by law within the Constitution.

A hearing has been set on treaties and Executive agreements commencing February 18, 1952, before a subcommittee of the Judiciary Committee of the United States Senate. The subcommittee consists of Senator William Langer, Republican, of North Dakota, chairman; Everett M. Dirksen, Republican of Illinois; John M. Butler, Republican, of Maryland; Estes Kefauver, Democrat, of Tennessee; and Harley M. Kilgore, Democrat, of West Virginia. Having been invited by the Senate subcommittee, members of the committee on peace and law, by authorization of a committee of the board of governors pursuant to the resolution of the house of delegates on September 20, 1951, will appear and testify.

The house of delegates will be kept advised with regard to further developments. APPENDIX A-NEW YORK STATE BAR ASSOCIATION COMMITTEE ON AMENDMENTS TO THE FEDERAL CONSTITUTION

(William D. Mitchell, chairman; John W. Davis; Lewis R. Gulick; John J. Mackrell; Harrison Tweed)

EXCERPTS FROM REPORT ON PROPOSED CONSTITUTIONAL AMENDMENTS RELATING TO THE MAKING OF TREATIES AND THEIR EFFECT, PRESENTED JUNE 1952

"That case [Missouri v. Holland, 252 U. S. 416] thus established the principle that when the United States makes a treaty on a subject within the treaty power, the Congress can enact legislation to implement the treaty which it might not have power to enact in the absence of a treaty, and thus enter a field normally reserved to the States" (p. 4).

"If the Covenant on Human Rights deals 'with an appropriate subject of international agreement' and is thus within the treaty power, the rule announced in Missouri v. Holland would operate to give the Congress power to implement the treaty by legislation which it could not enact in the absence of a treaty and thus enter a field heretofore reserved to the States" (p. 5).

"If it is within the treaty power and would be valid as a treaty, then under the rule of Missouri v. Holland the power of Congress to enact legislation on the subject of civil rights would be substantially enlarged and such limits on that power as now exist would disappear. Such a result would cause serious dissension within the United States between the advocates of States' rights, and those who desire increase in the centralized power of the Federal Government. We would gain nothing by the Human Rights Convention which justifies us in precipitating such dissension in the United States. Measures in support of civil rights are already more fully developed in the United States than in any other nation, unless it be in the British Commonwealth of Nations.

"On the other hand, many of the other nations involved have not reached a stage of political or social development where it is practical for them at one stroke to put into effect all the utopian measures specified in the Covenant on Human Rights. In many cases, to do so would require fundamental changes in their forms of government. In any view, becoming a party to the covenant would make us a target for charges and complaints by nations which are looking for a chance to make trouble for United States.

"These difficulties cannot be overcome by inserting in the covenant any clause applicable to federal states such as has been proposed by our State Department. That clause (art. 43 on federal states) is as follows:

"(a) With respect to any articles of this covenant which are determined in accordance with the constitutional processes of that state to be appropriate in whole or in part for federal action, the obligations of the federal government shall to this extent be the same as those of parties which are not federal states; "(b) With respect to articles which are determined in accordance with the constitutional processes of that state to be appropriate in whole or in part for action by the constituent states, provinces, or cantons, the federal government shall bring such articles, with favorable recommendation, to the notice of the appropriate authorities of the states, provinces, or cantons at the earliest possible moment.'

"If such a treaty as the Covenant on Human Rights is within the treatymaking power, then under our Constitution and the decisions of our Supreme Court the effect of our becoming a party to the covenant would be to give the Congress of the United States full power to enact legislation effective within the States to put the covenant into effect. That obviously would be accomplished ‘in accordance with the constitutional processes' of the United States. It would be a result consistent with our Constitution, as already determined in Missouri v. Holland. Consequently Congress would in accordance with our constitutional processes, have full power, and subdivision (b) dealing with favorable recommendations to the States would be inoperative. If we want to put a clause in the covenant on this subject, it would have to go further and provide that the Federal Government assumes no obligation to enact legislation which it could not constitutionally enact, in the absence of the treaty. This would relieve the Federal Government from an obligation to enact Federal legislation, but even then it might be held that under the rule in Missouri v. Holland Congress would gain power to fully implement the covenant although under no international obligation to do so.

"It would also be unwise to attempt to hide behind our Federal system as an excuse for limitation on our obligations, which would not avail a non-federal state, with all legislative power resting in its national government. Why sign a treaty we do not approve, and then hamstring our power to enforce its terms?" (p. 8-10).

"An argument can be made that if people are well treated by their own governments and are contented they are not inclined to be disorderly or break out into hostilities with other nations, and that the treatment by each nation of its own citizens is thus of interest to all and is therefore an appropriate subject of international agreement. If most of the United Nations member nations take that view and sign such a treaty, and our own Chief Executive with the assent of the Senate does likewise, it would place a heavy strain on the Supreme Court to hold that the treaty is invalid. It is possible that the Court would sustain the validity of the treaty, although that is far from certain. Considering the effect of such a treaty on the powers of Congress and that under the rule in Missouri v. Holland the Federal Congress, if we join in such a treaty, would have unlimited power to enact legislation on the subject effective within the States, and thus upset the normal division of power between our State and National Governments, it may well be that our courts would hesitate to hold that such a treaty is within the treaty power, and it is to be hoped that the

Supreme Court would hold that the Covenant on Human Rights is not within the treaty power.

"It would be unfortunate, if we sign such a treaty, to have our courts hold that so far as the United States is concerned the treaty is void. It would be more unfortunate if the courts should sustain the treaty, with the result that the Congress of the United States could then take over the entire field of human rights and thus completely upset the normal division of power between Nation and States. We should not become a party to a treaty which purports to bind this Nation to enact legislation applicable to our own citizens to establish within its borders the principles dealt with in the Covenant on Human Rights.

"Treaties such as the Covenant on Human Rights outside the normal field of international agreements and which can be used as a device to enlarge the powers of the Federal Government and diminish those of the States should be opposed as not within the treaty power **** (pp. 15-16).

"The principle announced in Missouri v. Holland has a logical ground and is based on express constitutional provisions. As applied to treaties normally within the treaty power it is satisfactory enough, but if it is to be applied to such pacts as the Covenant on Human Rights it would be destructive of the existing division of authority between States and Nation. In that case, to enlarge Federal power, all that would be necessary would be for us to find some foreign nation willing to make an agreement with us as to how we would treat our own people. Such a distortion of the treaty power should be condemned as a mere device to enlarge Federal power at the expense of the States and not within the treaty power.

"Our representatives in the United Nations ought not to have gone as far as they have in the negotiation for such a treaty. They should now direct their efforts to converting the Covenant on Human Rights from a treaty pledging legislation for immediate adoption of all its provisions, into a document which amounts to no more than a declaration of approved principles, in the form of recommendations to the several nations (pp. 17-18).

WILLIAM D. MITCHELL, Chairman.
JOHN W. DAVIS.

LEWIS R. GULLICK.
JOHN J. MACKRELL.
HARRISON TWEED.1

Mr. SCHWEPPE. That is a report which will be read to the house of delegates in Chicago commencing next Monday.

Before proceeding to a discussion, I should like to express the appreciation of members of the committee on peace and law and of other members of the American Bar Association for the recognition by Senator Bricker on February 7, 1952, when he introduced Senate Joint Resolution 130 (see Congressional Record, February 7, 1952, pp. 920-928), and again today of the pioneer work done on this subject by the committee on peace and law and other members of the American Bar Association, and particularly of Frank E. Holman, past president of the American Bar Association.

You have before you today for consideration the text of Senate Joint Resolution 1, Senator Bricker's proposed constitutional amendment dealing with both treaties and executive agreements and other proposals on the same subject.

Mr. John Foster Dulles, now Secretary of State, before the regional meeting, American Bar Association, Louisville, Ky., April 12, 1952, made an address entitled "The Negotiation of Treaties" (American Bar Association Journal, June 1952, p. 487). In the course of this address he made the following remarks:

The treaty-making power is an extraordinary power liable to abuse. Treaties made international law and also they make domestic law. Under our Constitution treaties become the supreme law of the land. They are indeed more supreme than ordinary laws, for congressional laws are invalid if they do not

1 Mr. Tweed did not agree with some portions of the report.

conform to the Constitution, whereas treaty law can override the Constitution. Treaties, for example, can take powers away from the Congress and give them to the President; they can take powers from the State and give them to the Federal Government or to some international body and they can cut across the rights given the people by the constitutional bill of rights.

The foregoing remarks of Mr. Dulles succinctly point up the problem with which your committee on peace and law has been dealing since 1948, and the study of which has resulted in the recommendations of our committee to the house of delegates of the American Bar Association.

Senator WATKINS. Have you talked to Mr. Dulles about this statement he made?

Mr. SCHWEPPE. Personally, no.

Senator WATKINS. Do you know whether or not he favors this resolution?

Mr. SCHWEPPE. We do not know; no.

The CHAIRMAN. Senator Watkins, I might tell you I am going to have a copy of these entire proceedings sent to Mr. Dulles as soon as the reporter can get it off. I am going to keep him informed of the testimony of every witness so that he can be constantly aware of just exactly what the testimony is.

Mr. SCHWEPPE. Before going directly to the text, I should like first, without reading from the reports of our committee, which are already in last year's hearing record and of which you have copies, to explain the resolution on treaties which the house of delegates has submitted for your consideration, because this resolution will furnish the background for both that text and the text of Senate Joint Resolution 1.

The text submitted for your consideration by the house of delegates of the American Bar Association covers three main ideas. The first idea is that a provision of a treaty which conflicts with any provision of this Constitution shall not be of any force or effect. That provision is recommended by the committee on peace and law and by the house of delegates of the American Bar Association, because of the uncertainty that exists at the present time with reference to the extent of the treaty power.

It is true that the Supreme Court said, in early cases, of which Geofroy v. Riggs is commonly cited, that you cannot do under the treaty power what the Constitution forbids.

On the other hand, we have the case of Missouri v. Holland (252 U. S. 416), in which the Supreme Court held, although Congress had no power to control the subject matter under its ordinary delegated powers, that once a treaty was made on the subject an act of Congress that would have been unconstitutional in the absence of the treaty became constitutional by virtue of that clause in article I of the Constitution which gives Congress the power to pass all laws necessary and proper to carry this Constitution into effect and to carry into effect the powers delegated to any department or officer of the United States.

Mr. Justice Holmes held in that case that while article VI of the Constitution requires that the statutes be passed pursuant to the Constitution, treaties need merely to be made under the authority of the United States, which he suggests may mean no more than formal acts necessary to constitute the treaty.

We have been engaged in this study jointly for a period of time with the section on international law of the American Bar Association. Some of the members of that section do not seem to feel a constitutional amendment is necessary. They recognize the serious problem here, of which we are all aware, and there is no difference between us as to the existence of a very far-reaching problem. The difference is as to the remedy to be adopted.

The gentlemen of the international law section who do not agree with our viewpoint were of the view that you can control this thing sufficiently by putting clauses in the treaties, or by making reservations to treaties.

The committee on peace and law, supported now by the house of delegates of the American Bar Association, which is its official voice, does not believe that there is an effective answer to the extension of Federal power over the internal affairs of the States by the treaty method. We think that the appropriate remedy is a constitutional amendment which will take us over and above the language of anything that anybody can write into a treaty, or fail to get written into a treaty.

It was agreed between the committee-and this is very important and is a background for our proposal-and the section on international law 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 a treaty Congress would not have power under the Constitution to pass such legislation, and that by neither reservation or understanding can this power of Congress be controlled if Congress chooses to exercise it. To that extent we agree. We agree on the problem. We disagree as to the remedy.

A very great American lawyer, Henry St. George Tucker, who was in his day dean of the Law School of Washington and Lee University, and also a former president of the American Bar Association, wrote a book in 1915 which he entitled "Limitations on the Treaty making Power." The book was some 400 pages, and in the course of that book he makes the famous and much-quoted statement that the treaty clause of the Constitution is a Trojan horse; that is-to carry out the comparison-it has a lot of hidden soldiers in it which leap out upon you in the dark of the night when you are not expecting it.

His point about it was that a doctrine such as that of Missouri against Holland, under which the State Department, with the assistance of the President, negotiates a treaty and the Senate ratifies it, suddenly hits the various States in cases that later come up in court, and the States find out for the first time that the President and the Senate by ratifying the treaty have pushed State constitutional provisions and State laws out of the way, and that the matter which was heretofore a matter of strictly State concern has now become a matter of exclusively Federal concern, because, State constitutions and laws to the contrary notwithstanding, the treaty must prevail. That is the reason for Henry St. George Tucker's famous statement that the treaty clause is a Trojan horse. He is not the only one that believes that. Richard Henry Lee of Virginia and Patrick Henry of Virginia objected to the provisions concerning treaties, because they thought there was no control on the treatymaking power. They thought there was no control the way the clause is presently drawn because it says