affecting certain minor domestic rights, which would prevent their action. The same is true in a larger sense in the United Nations in NATO. I think that the effect of this amendment in its present form would be somewhat similar to the effect of the Neutrality Act which was passed in 1935, which, in the opinion of many people, somewhat gave a green light to Hitler. It is significant that very shortly after that, he marched into the Rhineland and began his piece-by-piece acquisition of territory. Because he felt that this country would not enter into any worthwhile cooperative agreement with the rest of the world; that we would not even furnish munitions to those who were attacked. And I think that it is very significant that there was a second green light that occurred, when, I believe, on the 10th of July 1939, the Senate Foreign Relations Committee, by a 12 to 11 vote, refused to report out a resolution to remove the arms embargo. That, to Hitler, indicated that with the lead he had in aircraft, and the inability of the English and French to secure aircraft in this country, he could then wage war. We know that 3 weeks later he made his deal with Stalin, and 6 weeks later he was in Poland. I think that the third provision, which requires action by the House, as well as the two-thirds of the Senate, is again a further complication to this difficult problem of making treaties and making them promptly enough to meet these very dangerous conditions in which we live. As to No. 4, executive agreements, I realize that there have been cases where that has been improper. Executive agreements have been made, but on balance I think in the main they have been very necessary. I think it is very much like the chief executive of a corporation. You cannot have bylaws that make it necessary for him to take every action to the board of directors. If it is necessary that these restrictions be placed on executive agreements, it is going to throw more to the Senate, which is already overburdened with work, because I know how hard all of you people work—or the thing will not be acted upon at all. I think that basically we have to look at these problems as a matter of relative risk; that if you tie the hands of your Chief Executive and Congress to the point where they are unable to take action for mutual cooperation against aggressors to protect yourself, it is much worse than to permit them to continue with the powers that were given under the Constitution to the President and the Senate to make such treaties as may be necessary. I think that if we read the debates over the constitutional convention we will see that those people recognized the impotence of the confederation to deal properly with certain of these problems. And the world in which they lived was an even less dangerous world than the one in which we live. At that time it took 40 or 50 days to cross the ocean. Today it is done in 8 or 9 hours. We had no atom bomb. The problem of action, of prompt action, was so much less urgent than it is today. I would like to, in closing, read two sentences from an editorial from the New York Herald Tribune of February 21, 1953. The CHAIRMAN. Why not put in the entire editorial. (The editorial referred to follows:) [New York Herald Tribune, February 21, 1953] THE TREATY MAKING POWER Speaking on behalf of the New York City Bar Association, Mr. Dana Converse Backus made a strong, practical argument before the Senate Judiciary Committee against the proposed Bricker amendment to the constitutional provisions on treatymaking. Asserting that this amendment "would put serious barriers in the way of conducting our foreign affairs," Mr. Backus added: "In these dangerous times when obliteration can descend from the sky without warning and when there is greater need than ever to obtain agreements with other nations and perform those agreements, our country cannot afford the risk of such impediments." The Bricker amendment is directed primarily at the so-called supremacy clause of the Constitution, which gives treaties the status of the "supreme law of the land." The intent of this clause was to insure that treaty provisions would not be defied, after ratification, by the various State and local governments that might be affected. Because of the importance this gave to treaties, ratification by two-thirds of the Senate was required. In practice the Senate has zealously upheld its participation in treatymaking, scrutinizing treaties carefully and debating them at length. Nevertheless, Senator Bricker (and more than 60 Senators agree with him) has expressed fears that some day the American people may elect a President who may negotiate a treaty abridging vital American freedoms, at a time when there may be enough Senators willing to ratify such a document. He, therefore, would have any alteration in the laws or Constitution of the United States by treaty made subject to further determination by act or joint resolution of Congress. If enough Americans favored a treaty affecting the fundamentals of American citizenship to push it through the present ratification formula, it is more than probable that simple majorities could be obtained for it in Congress. Meanwhile, however, the operation of ordinary treaties, dealing with urgent matters of national security, would be gravely hampered by setting up an additional requirement for detailed interpretation of the documents. Mr. Bricker also proposes checks on executive agreements. It is a fact, however, that such agreements have been resorted to in part because of the difficulty of ratifying formal treaties; if the latter process is made even more cumbersome, Presidents may be tempted to evasions of the whole spirit of the Constitution in order to procure international action when time is of the essence. In other words, while trying to safeguard coming generations against what may seem to Senator Bricker to be folly, his amendment handicaps the present and raises the prospect of greater evils. It is an attempt to do what the American Founding Fathers wisely avoided, and what the drafters of foreign constitutions have sometimes done to their nations' disadvantage: to place the future in a straitjacket and to lay down detailed rules for every possible contingency. The CHAIRMAN. Read the sentences, anyway. Mr. McKEE. Thank you, Senator. I would just like to finish with these two sentences: In other words, while trying to safeguard coming generations against what may seem to Senator Bricker to be folly, his amendment handicaps the present and raises the prospect of greater evils. It is an attemp to do what the American Founding Fathers wisely avoided, and what the drafters of foreign constitutions have sometimes done to their nations' disadvantage: to place the future in a straitjacket and to lay down detailed rules for every possible contingency. Thank you very much, Senator. The CHAIRMAN. Thank you. Now, when is our next meeting of this committee? Mr. SMITHEY. Senator, there is no meeting scheduled at this time. I think the subcommittee might recess subject to the call of the Chair. The CHAIRMAN. All right. We will recess subject, to the call of the Chair. (Whereupon, at 5:10 p. m., a recess was taken to the call of the Chair.) TREATIES AND EXECUTIVE AGREEMENTS TUESDAY, MARCH 10, 1953 UNITED STATES SENATE, SUBCOMMITTEE OF THE COMMITTEE ON THE JUDICIARY, Washington, D. C. The subcommittee met at 10 a. m., pursuant to recess, in room 457, Senate Office Building, Hon. William Langer (chairman of the committee) presiding. Present: Senator Langer. Present also: Wayne H. Smithey, subcommittee counsel. The CHAIRMAN. The committee will come to order. Will you call your first witness? Mr. SMITHEY. The first witness this morning is from the American Association of University Women, but before we proceed with the testimony of this witness the subcommittee has received a statement from the Congress of Industrial Organizations, which I submit, sir, and ask that it be included in the record. The CHAIRMAN. It will be filed. (The statement referred to is as follows:) Hon. WILLIAM LANGER, CONGRESS OF INDUSTRIAL ORGANIZATIONS, Chairman, Senate Judiciary Committee, Senate Office Building, Washington, D. C. DEAR SENATOR LANGER: The Congress of Industrial Organizations wishes to register its opposition to S. J. Res. 1, known as the Bricker amendment. We believe that it seriously hamstrings American efforts in the conduct of our foreign affairs; that it will negate the role of the United States within the United Nations and its specialized agencies, and through international negotiations to increase the security, the material well-being and the rights of individuals throughout the world. The first section of the proposed amendment states that "a provision of a treaty which denies or abridges any right enumerated in this Constitution shall not be of any force or effect." In our opinion, this provision is entirely unnecessary for the Supreme Court of the United States has clearly indicated that no treaty can authorize what the Constitution forbids. The second section would prevent the United States from making various treaties and international arrangements through the United Nations which this country, in the past, considered highly advantageous to make. Here, too, the existing constitutional machinery provides adequate restraints against the makcan refuse to sign it. If he does sign it, its ratification can be killed by one-third of the Senate plus one. The Senate, moreover, can consent to a limited ratification and reject those parts considered undesirable. The third and fourth sections which deal with the enactment of legislation to make treaties effective in internal law, and with executive agreements, would seriously hamper our foreign relations during a time of peace and divide us from our allies in wartime. We feel that these amendments would not only render the President and Senate incapable of protecting American interests, but provisions of these proposed amendments would hamper effective American participation in the United Nations. At its last constitutional convention held in Atlantic City in December 1952, the CIO reaffirmed its support of the United Nations and the various specialized agencies such as ILO, UNESCO, and FAO and declared that "the United Nations is growing into a cohesive international community organization which the free world requires." If the Bricker amendment were adopted, the United States could not continue to secure the benefits of participation in international agreements or organizations concerned with rights of labor, communications, conservation, agriculture, health, banking, international crime, and other fields where international cooperation is essential to successful action. The Bricker amendment, taken as a whole, would turn the clock back to a period when the United States was a much less significant force in the world. In the present time of crisis and instability, United States leadership is vitally needed to help forge effective international instruments that will provide peace and security in freedom for the peoples of the world. The proposed constitutional amendment, while giving no protection that is not already written into constitutional law firmly and supported through long practice, would stultify and restrict such needed leadership. Its adoption would give comfort and aid to the totalitarian powers directed by the Soviet Union. For these reasons, the CIO opposes S. J. Res. 1. Respectfully, JACOB S. POTOFSKY, Chairman, CIO International Affairs Committee. Mr. SMITHEY. I have also the statement of the National Association of Manufacturers. Permission was received for inclusion on February 25, 1953. The CHAIRMAN. That will be filed. Hon. WILLIAM LANGER, NATIONAL ASSOCIATION OF MANUFACTURERS, Chairman, Senate Committee on the Judiciary, Senate Office Building, Washington 25, D. C. DEAR SENATOR LANGER: In accordance with the invitation transmitted with your letter of February 26, 1953, I am submitting herewith on behalf of the National Association of Manufacturers statement regarding Senate Joint Resolution 1 now pending before your committee. It is my understanding that this can be included as a part of the record of your committee's hearings on this measure. Additional copies are being sup plied to the other members of the Judiciary Committee. We appreciate very much your courtesy in this matter and trust that you will find the views expressed herein helpful to your committee in its consideration of this very important matter. Very truly yours, LAMBERT H. MILLER, General Counsel. STATEMENT OF LAW DEPARTMENT, NATIONAL ASSOCIATION OF MANUFACTURERS, FILED WITH THE SENATE COMMITTEE ON THE JUDICIARY ON SENATE JOINT RESOLUTION 1, PROPOSING A CONSTITUTIONAL AMENDMENT LIMITING THE TREATY POWER This statement is directed to Senate Joint Resolution 1, proposing an amendment to the United States Constitution limiting the making and effect of treaies and executive agreements. It is filed on behalf of the National Association of Manufacturers, a voluntary organization composed of more than 19,000 members, the greater percentage of which fall within the category commonly referred to as small business. The membership of this association is located throughout all of the 48 States of the United States. They are concerned with the recent and growing trend toward the promulgation by various international organizations in which the United States maintains membership, of international covenants and conventions which, upon ratification by the Senate, would have the force and effect of treaties. |