era when the solution of our domestic problems will be moved to an international body? One can agree that in the present state of the world there is greater need for international agreements, but what is wrong with reevaluating and reconstructing our treaty-making agency so as to afford our people the greatest possible protections under these circumstances. Under our system of government the people possess all individual rights and these rights are protected against governmental action by our constitutional Bill of Rights. It has been suggested that while under the first amendment the whole "Congress may make no law" which abridges the "freedom of speech or of the press," or freedom to exercise religious views our treaty-making agency consisting of the President plus two-thirds of the Senate, present and voting, could by treaty create a law doing exactly that. In support of this idea it is said that the first amendment of the Constitution runs against the Congress and not against our treaty-making agency.

It has also been pointed out that no treaty has ever been held to be unconstitutional and that the Constitution contains no express limitation on the treaty power. And while there are some who say a treaty violating the Bill of Rights would be held unconstitutional, it seems well to end any dispute by closing this possible loophole now rather than taking a chance on the outcome of that dispute. With the new and greatly expanded concepts of subjects appropriate for treaty making this loophole through which our peoples' basic rights might be destroyed by our treaty-making agency should be closed. The best way to do that is by a constitutional amendment as recommended under the first part of the chamber's policy plank here presented to the committee.

To render treaties non-self-executing as domestic law as the chamber's policy plank proposes would not tie the hands of our State Department. That Department could make as many treaties on as many different subjects as it believes our Nation requires. But under this plank those treaties could not create or destroy domestic rights unless and until Congress so provided by express legislation. In this way we will know when and how treaties affect domestic rights. At present, because of lack of clarity of court interpretations on the subject, one cannot be sure which treaties are self-executing, or which parts of treaties are self-executing, and thus domestic law from the time of ratification.

To the historical trends mentioned, one must add our legal history to achieve a proper perspective. There one finds that since the opinion in Missouri v. Holland (252 U. S. 416) was announced in 1920 a great debate had raged over the decision then made that the President and two-thirds of the Senate could by treaty add to the constitutional powers of the Federal Government at the expense of the States. Up until the present world situation the debate has been largely academic, because treaties have in the main been confined to our traditional concept of the treaty power. But with that concept no longer accepted in certain quarters and the idea so well expressed by the Honorable John Foster Dulles that "treaties can override the Constitution," we have the problem of preventing such overriding except where the people want the Constitution amended. And the only sure way of knowing that the people understand and approve a

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constitutional amendment is by following the amendment provisions of article V of the Constitution rather than have the President and two-thirds of the Senate do the amending in the guise of a treaty. A treaty is to many a mysterious and little understood document but all can come to a knowledge and understanding of a constitutional amendment. A proposed constitutional amendment not only travels through both Houses of the Congress but also to all of the State legislatures. This means widespread newspaper and other coverage not only of the hearings and debates in Congress but also of the hearings and debates in State legislatures. Such widespread attention and publicity is not generally given to treaties before Senate ratification. Presumably the statement of the Honorable John Foster Dulles about treaties "overriding the Constitution" was premised upon the statement of Mr. Justice Holmes in Missouri v. Holland (p. 433)

that

Acts of Congress are the supreme law of the land only when made in pursuance of the Constitution; treaties are declared to be so when made under the authority of the United States.

Obviously "under the authority of the United States" means the President and two-thirds of the Senate, present and voting. If we are going to have our Constitution overridden, it seems only logical that the people of the Nation should be alerted to that fact by having the action taken under the amendment procedure provided in article V of the Constitution. True, the amending procedure is purposely made slow and difficult, but that was to provide added and adequate protection for the people. Such safeguards do not surround our present treatymaking agency. And, as already stated, a treaty can become the supreme law of the land now without any or very little publicity so that the people hardly understand that it is under consideration, while constitutional amendments receive nationwide publicity and attention. It is doubtful that anyone can logically argue that a treaty which overrides the Constitution would or could receive the same notice and understanding of our people as a constitutional amendment.

It should also be pointed out that while under our Constitution all treaties are the "supreme law of the land," in no other major nation of the world does a treaty become domestic law without legislative action expressly making it domestic law. In Great Britain, for example, ratification of a treaty gives it effect only as external law. To give a treaty domestic or internal effect requires express adoption of a legislative act by the Parliament so providing.

The obvious advantage to businessmen from placing our Nation on a par with other nations is quite apparent. Mention has been made of the estimated 200 pending or proposed treaties and the estimated 3,000 meetings and conferences on international matters last year. It is a virtually impossible task to protect the interests of the businessmen of America by adequate representation on or before the multitudes of commissions, committees, and conventions presently drafting proposed treaties and executive agreements. But the businessmen of our Nation can be assured of consideration of their views if their domestic interests can only be affected by action of the Congress. It is also quite. certain that the requirement of such congressional action protects against unintentional alteration of the legal rights of our people

through treaty language not completely thought out in hurried international conferences, or based upon information which is incomplete because the business or other viewpoints of our people were not adequately presented or considered.

I noted the statement by Mr. McGrath about no lawyers being there when they were drafting these ILO conventions. I, in fact, checked with the State Department about 2 years ago to find out just how many lawyers they had in their Solicitor's office, and found that out of the 21,000 employees they then had, the Solicitor only had 60. So he didn't have people to send to these international conventions to do that drafting work.

It should be frankly stated further

The CHAIRMAN. Did you say 6 or 60?

Mr. RHYNE. Sixty. And I may say I was then arguing that more attention should be given to the international phases of these conferences, and that they should have more lawyers.

The CHAIRMAN. The Congress has increased the appropriation for the State Department by millions and millions of dollars in the last few years.

Mr. RHYNE. And they have 21,000 employees.

The CHAIRMAN. They have plenty of money, I would say, to hire all the lawyers they need.

Mr. RHYNE. But the truth of it is that the legal phases of it have simply been neglected by the State Department.

It should be frankly stated further that the legal principles applicable to treaty law have not been completely settled by our courts. And, as already pointed out, our Constitution contains no express definitions of or limitations on the treaty power to aid the courts on unsettled questions. The principle of Missouri v. Holland is clear enough insofar as it upholds the overriding of State law by treaties covering matters previously within the domestic jurisdiction of the States. But the law on executive agreements is largely dictum based upon statements in United States v. Curtiss-Wright Export Corporation (299 U. S. 304), and other cases to the effect that such power does exist. While the express nullification of State policy and law by executive agreement was upheld in United States v. Pink (315 U. S. 203), the nature and extent of the power to make such agreements has never been fully explored by the courts. The use of executive agreements to bypass the treaty power is dangerous as it leads to one-man government. And the tremendous increase in the use of this type of agreement when coupled with the dispute over its nature and permissible use is again reason for affirmative action to end the uncertainties. I may say there I am sorry Senator McCarran is not here, because I had the honor of working with him to some extent when he introduced a resolution, about 1945 or 1946, against the so-called Bermuda agreement, in which, in the aviation field, our representatives gave up, at least in part, on our principle of competition in the international field of aviation. And I think the Senator's resolution saying that that type of agreement should be submitted as a treaty was adopted by this committee, I believe, 17 to 1, but never was acted upon by the Senate. While no informed person accepts the extreme view urged by some that executive agreements and treaties are interchangeable, the mere assertion of this erroneous idea plus the hazy state of the law in this field makes a constitutional amendment most desirable.

Because the present world situation requires an increased use of international agreements and because the subject matter of such agreements has been tremendously broadened to cover almost all social and economic problems of our times, our Nation has reached a timein its history when our constitutional provisions governing the making of treaty law requires extensive overhauling to meet current needs. Businessmen of the Nation are greatly concerned at the flood of agreements vitally affecting domestic rights and property which is pouring out of the United Nations and its specialized agencies in an ever-increasing stream. They know it is virtually impossible to cover all of the hundreds of conferences held each year all over the world and there to effectively protect their interests. They believe that the best answer to these problems is in adoption of a constitutional amendment which prevents treaties from overriding the Constitution and which provides that treaties will not become domestic law-to either create or destroy rights and property interests-until and unless and only to the extent that the Congress incorporates them into domestic law. The policy here recommended will leave the treatymaking power in full force and effect as to all matters genuinely within the sphere of international agreements. This policy will not affect the United Nations collective-security efforts which everyone applauds. But it will stop the unwitting, or intentional change or destruction of domestic rights in the great outpouring of new proposed treaties, by virtue of our Constitution's "supremacy" clause. A constitutional amendment will achieve an immediately effective result by ending all the uncertainties in this field created by differing views, unclear court decisions, and absence of authoritative. court decisions on important questions. Only in this way will our system of free enterprise, the keystone which makes ours the greatest Nation on earth, be adequately protected in a world where peace or war depends upon our system keeping us the strongest nation on earth.

If I may say, Senator, I greatly appreciate your staying and hearing this statement at this late hour.

The CHAIRMAN. Thank you.

Have you any extra copies of your statement here?

Mr. SMITHEY. I have them, Senator, on file here.

The CHAIRMAN. Will you send 3 or 4 down to my office?

Thank you very, very much indeed.

Mr. RHYNE. Senator, I have here some biographical data. I don't know whether it is of interest to the committee, but I though I would submit it.

The CHAIRMAN. We will be very glad to incorporate that.

(The material referred to follows:)

CHARLES S. RHYNE

Member of District of Columbia bar.

Member of District of Columbia and American Bar Associations.

Member, house of delegates of American Bar Association (1944–54) and chairman, committee on draft of that house.

Chairman, aeronautical law committee, American Bar Association.

Former national chairman, Junior Bar Conference, American Bar Association. Former secretary, vice chairman and chairman of the section of international and comparative law of the American Bar Association and presently a member of council.

Former chairman committee on United Nations and member of various committees of the section.

Member, committee on scope and correlation of work of the American Bar Association.

Delegate of American Bar Association to International Bar Association organization convention in New York and London convention of 1951.

Member, American Society of International Law.

Chairman and member of various other committees of the District of Columbia and American Bar Associations.

Author of various articles on international law subjects published in American Bar Association Journal and Law Reviews.

Mr. SMITHEY. Mr. F. C. McKee.

STATEMENT OF FREDERICK C. MCKEE, PITTSBURGH, PA., ON BEHALF OF THE COMMITTEE ON NATIONAL AFFAIRS OF NEW YORK CITY

Mr. MCKEE. Mr. Chairman, I will make this very brief.

The CHAIRMAN. We have all the time in the world. We are very anxious to get this thing clearly before the subcommittee.

Mr. McKEE. My name is Frederick C. McKee. I am a Pittsburgh businessman.

The CHAIRMAN. What kind of a businessman?

Mr. MCKEE. A Pittsburgh businessman of Pittsburgh, Pa., speaking on behalf of the Committee on National Affairs of New York City, of which I am chairman. I, and a number of the members of these organizations, have been active in various ways working for the defense of the United States, such as the old Stimson committee for an embargo on scrap iron and oil to Japan, the Committee to Defend America by Aiding the Allies, of which I was treasurer and, more recently, over the past 4 years, the Committee to Defend America by Aiding Anti-Communist China, of which I am chairman.

In looking at our foreign relations history, I think we are impressed by the fact that there have been three types of mistakes: doing the wrong thing, doing the right thing too late, and doing nothing. And while there have been some cases of bad mistakes, such as Yalta, I think that on balance the errors of omission have been much more serious than the errors of commission.

I believe that this amendment would increase those errors of omission. I believe that the language of section 2 is so broad that there would be many things that we would like to do and have done for our mutual protection which might, by court decision, be rendered impossible.

For example, all of us are very much concerned today that there shall be a tight embargo on strategic materials going to the Communists. Any arrangement on embargoes or any other type of mutual defense has to be reciprocal. And I can see conditions where we might want to enter into certain pacts on those restrictions, which might be considered some infringement of certain property rights here.

The same thing is true of bases. I think everybody will agree on the wisdom of a ring of bases around Russia, because of the danger that at any time they might attack us with what atom bombs they have. And yet such an arrangement has to be mutual. We might have to permit joint use of bases. We might have to permit Canadian troops to go through to help us in the defense of Alaska, and there may be certain questions raised that might be considered as