The security of the United States is vitally dependent upon the success of the United Nations. Proposals such as the Bricker amendment, which would make it impossible for the United States to fulfill all of its responsibilities as a member of the world community, would jeopardize our chances of obtaining lasting peace.

Mr. EDELMAN. Having presented this specific resolution of the conference, I should like to add to this presentation some thoughts of my own which I will make as brief as possible, which are not contained in the matter presented in print.

Leaving the careful analysis of constitutional doctrine to those who have already ably covered the matter, I limit myself to two primary observations. The first relates to the genius of our Constitution. I think its genius lies in its fine balance of certitude with adaptability. As we have grown in numbers and strength, the Constitution has given full play to the needs of changing times and changing conditions. But for all its adaptability, it has preserved intact the fundamental structure of our Republic. It has held inviolate the safeguards of our individual liberties and has maintained the delicate balance of powers as between the three branches of our Government.

James Bryce, the keen English observer of American affairs, said of our Constitution, I quote:

Yet after all deductions, it ranks above every other written constitution for the intrinsic excellence of its scheme, its adaptation to the circumstances of the people, the simplicity, brevity, and precision of its language, its judicious mixture of definiteness in principle with elasticity in details.

The provisions now sought to be inserted into this immortal document bid fair to rob it of these attributes of its greatness. They are a glaring departure from that simplicity, brevity and precision of language which have so distinguished it as a workable blueprint of government. The judicious mixture is being threatened with dilution and distortion. Never before in our history as a Nation have we exhibited such unsureness about our structure of government, such distrust of the oflice of the Presidency and of the Senate.

I would like to say at this point with respect to the observation you made to Mr. Lashley, Senator Dirksen, that the problem of seeking absolute security from our own misjudgment is to me an unrealistic problem, because if we seek absolute security from possible misjudgment I think paralysis must necessarily set in. If two-thirds of the Senate cannot be trusted, why a majority of the House, why a majority of the Supreme Court, why a majority of the people? Section 2 gives us no protection against mistakes of judgment. It sets up the word "domestic" as if we constitute a word for our capacity to govern ourselves.

This committee has been reminded by prior witnesses of the lengthy and careful debates of the constitutional convention on the subject of the treaty-making power and the eventual repudiation of the alternative proposals. No single voice, as I understand it, has been raised before this committee to condemn or even to question any treaty that an American President signed or a United States Senate ratified. All the voices that have been raised in favor of the radical alteration of the structure of our Government are voices of fear for what might happen in the future. Wise lawmakers I think legislate to wipe out existing evils. They do not battle specters and apparitions. * Here

the Congress and the whole people are being urged not merely to legislate, but to alter our Constitution and its scheme of separation of powers by reason of imagined threats of intrusion upon our domestic affairs.

I recall that one of the witnesses in the prior proceedings spoke of preserving the old treasures of our Constitution. I submit that among its greatest treasures is its fine scheme for the structure of our Government and the balance of Federal powers. It is my view that Senate Joint Resolution 1 proposes a radical renovation of our constitutional system in language that is indefinite, inflexible, and I submit unworkable.

Senator DIRKSEN. Mr. Edelman, would you mind an interpolation at that point?

Mr. EDELMAN. Not at all, Senator. I would welcome it.

Senator DIRKSEN. Do you follow the activities of the members of your association insofar as they give attention to cases that are pending in court that may involve and arise from responsibilities flowing out of the United Nations Charter?

Mr. EDELMAN. Do our members

Senator DIRKSEN. I say do you give any attention to it?

Mr. EDELMAN. So far as I am able I maintain an interest in developments that might arise out of United Nations affairs.

Senator DIRKSEN. Would you know whether or not the American Association for the United Nations intervened as amicus curiae in a case that went to the Supreme Court, the October term, 1947? It was a case that arose out of Missouri and the petitioners were J. D. Shelly and others, Louis Kraemer, Orsel McGhee, Benjamin J. Sipes, Frederick E. Hodge, and a good many others. I think that can go into the record.

(The brief referred to follows:)

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1947

No. 72

J. D. SHELLEY, ET AL, PETITIONERS

v.

LOUIS KRAEMER, ET AL.

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF THE STATE OF MISSOURI

No. 87

ORSEL MCGHEE, ET AL., PETITIONERS

v.

BENJAMIN J. SIPES, ET AL.

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF THE STATE OF MICHIGAN

No. 290

JAMES M. HURD, ET AL., PETITIONERS

v.

FREDERICK E. HODGE, ET AL.

No. 291

RAPHAEL G. URCIOLO, ET AL., PETITIONERS

v.

FREDERICK E. HODGE, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA

MOTION OF THE AMERICAN ASSOCIATION FOR THE UNITED NATIONS FOR LEAVE TO FILE BRIEF AS AMICUS CURIAE

The American Association for the United Nations respectfully requests this Court for leave to file a brief as amicus curiae in the above-captioned cases. We have received the consent of counsel to both petitioners and respondents in Nos. 87, 290, and 291. We have not received any answer to our letters to counsel in No. 72.

The American Association for the United Nations is a nationwide, non-profit organization whose members are vitally interested in adherence by this Government to the provisions and to the spirit of the United Nations Charter.

We have filed this brief because of the extraordinary importance of these cases, particularly with reference to the good faith of this country in observing the intent of the Charter. We believe that, if this Court were to uphold the decrees below enforcing racial restrictive covenants, the guarantees of fundamental human rights contained in the Charter would be vitiated and the international prestige of this country would be greatly impaired. We further believe, although this point will not be elaborated upon in our brief, that these decrees violate the Fifth and Fourteenth Amendments to the Constituion.

On the other hand, reversal of the decrees by this Court would be a magnificent affirmation of the principles to which this country has subscribed in the United Nations Charter and in the United States Constitution. The American Association for the United Nations, therefore, respectfully requests leave to file this brief amicus curiae.

BRIEF FOR THE AMERICAN ASSOCIATION FOR THE UNITED NATIONS AS AMICUS CURIAE

OPINIONS BELOW

The opinion of the Supreme Court of the State of Missouri in No. 72 (R. 153159), is reported at 198 S. W. 2d 679. The opinion of the Supreme Court of the State of Michigan in No. 87 (R. 60–69), is reported at 316 Mich. 614. The opinion of the United States Court of Appeals for the District of Columbia in Nos. 290 and 291 (R. 417-432) is reported at 162 F. 2nd 233.

JURISDICTION

This Court's jurisdiction is invoked under 28 U. S. C. § 344 (b) and § 357 (a).

QUESTION PRESENTED

This brief will be primarily concerned with the question of whether by enforcing racial restrictive covenants (a) so as to preclude petitioners, as negroes, from purchasing and/or occupying realty, (b) so as to preclude other owners of realty from selling or leasing their property to negroes, and (c) so as to eject negroes from property already occupied by them, the Courts below violated Articles 55 (c) and 56 of the United Nations Charter.

The second question discussed is whether the enforcement of racial restrictive covenants by the Courts below does not constitute improper interference with the public policy enunciated in Executive Agreements and Declarations, made in the conduct of the foreign relations of the United States.

SUMMARY OF ARGUMENT

I. Enforcement of racial restrictive covenants is a violation of Article 55 (c) and 56 of the treaty known as the United Nations Charter.

a. Interpretation of Articles 55 (c) and 56.

b. The obligations of the United States under Articles 55 and 56 are not qualified by Article 2, Paragraph 7 thereof.

II. As part of the "Supreme Law of the Land", treaties invalidate conflicting provisions of state common law or state statutes.

III. Both state and federal courts are prohibited from taking affirmative action which contravenes the declared foreign policy of the United States of eliminating racial and religious discrimination.

IV. Court orders enforcing racial restrictive covenants constitute governmental action.

I

ENFORCEMENT OF RACIAL RESTRICTIVE COVENANTS IS A VIOLATION OF ARTICLES 55 (c) AND 56 OF THE TREATY KNOWN AS THE UNITED NATIONS CHARTER.

A. INTERPRETATION OF ARTICLES 55 (C) and 56

Insofar as presently relevant, Article 55 (c) of the United Nations Charter provides:

*** the United Nations shall promote * **uniform respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, and religion."

Article 56 of the Charter embodies the following commitment by the ratifying nations to implement the provisions of Article 55:

"All members pledge themselves to take joint and separate action in cooperation with the Organization for the achievement of the purposes set forth in Article 55."

The United Nations Charter was ratified by the President of the United States, after consent had been given by the Senate pursuant to Article II, Section 2, of the Constitution. 51 Stat. 1031. Accordingly, the Charter is a "treaty made *** under the authority of the United States" and is "the supreme law of the land." Unless assured equal access to housing and shelter, minority groups are discriminatorily deprived of liberty and property. Hence it seems to us plain that

the right to acquire and occupy property without discrimination because of race is one of the "fundamental freedoms" protected by Articles 55 (c) and 56 of the Treaty. In particular, these provisions preclude all courts of the United States from entering any decrees which affirmatively support and enforce racial discrimination in the acquisition and occupancy of property.

(1) Recognizing that a scrupulous respect for international agreements is the bedrock upon which civilized international life is built, this Court has consistently held that such agreements must be broadly construed.

In Tucker v. Alexandroff, 183 U. S. 424, 437, the court quoted approvingly Chancellor Kent's famous doctrine: "Treaties of every kind are to receive a fair and liberal interpretation according to the intention of the contracting parties, and are to be kept with the most scrupulous good faith" (1 Kent, Commentaries, p. 174).

In Factor v. Laubenheimer, 290 U. S. 276, 293, this Court held:

"In choosing between conflicting interpretations of a treaty obligation, a narrow and restricted construction is to be avoided as not consonant with the principles deemed controlling in the interpretation of international agreements***. For that reason if a treaty fairly admits of two constructions, one restricting the rights which may be claimed under it, and the other enlarging it, a more liberal construction is to be preferred."

This doctrine is equally applicable in the construction of treaties dealing with questions which, under our Federal system, might otherwise be confided to the jurisdiction of the separate states. For, as stated by Mr. Justice Stone in Nielsen v. Johnson, 279 U. S. 47, 52:

** as the treaty-making power is independent of and superior to the legislative power of the states, the meaning of treaty provisions so construed is not restricted by any necessity of avoiding possible conflict with state legislation

*

See, also, Valentine, et al. v. Neidecker, 299 U. S. 5; Jordan v. Tashiro, 278 U. S. 123, 127-130.

(2) The decision of the Supreme Court of Michigan in No. 87, McGhee & McGhee v. Sipes, et al. (R. 60–69), asserted that the provisions of Articles 55 (c) and 56 of the Charter are merely the statement of "an objective devoutly to be desired by all well-thinking people."

This interpretation is an unreasonable construction of these Articles. If the draftsmen of the Charter had possessed the limited intention ascribed to them by the Supreme Court of Michigan, they need only have inserted therein a general declaration that the promotion of human rights was one of the objectives of the organization.

Indeed, the first draft of the United Nations Charter-the so-called "The Dumbarton Oaks Proposals"-contained only the most nominal reference to the protection of human rights and did not place any obligation upon the signatory powers for their protection. (See Stettinius, Charter of the United Nations— Report to the President on the Results of the San Francisco Conference, Dept. of State Publication 2349, Conference Ser. 71, pp. 25-27.)

However, at the outset of the San Francisco Conference, the United States Delegation proposed that the agreement be expanded to include guarantees of the fundamental freedoms "for all, without distinction as to race, sex, language or religion". The present language of Article 55 (e) was drafted principally by the United States Delegation. Former Secretary of State Stettinius, in his Report to the President on the San Francisco Conference, stressed the significance of the word "observance" in the final version of that Article. Ibid.

The record of the San Francisco Conference further indicates that Article 56 was inserted in the Charter so as to make the pledge of observance of human

1 This statement is not to be taken as a concession that, apart from the existence of relevant international agreements, the determination of whether or not racial restrictive covenants should be judicially enforced is to be made solely in the light of the public policy of the several states. In our opinion, enforcement of such covenants is prohibited by the Fourteenth Amendment to the United States Constitution, for the reasons persuasively stated in the amicus briefs filed herein by the Department of Justice and by the American Civil Liberties Union.