TREATIES AND EXECUTIVE AGREEMENTS FRIDAY, MARCH 27, 1953 UNITED STATES SENATE, SUBCOMMITTEE OF THE COMMITTEE ON THE JUDICIARY, Washington, D. C. The subcommittee met, pursuant to call, at 10:30 a. m., in room 424, Senate Office Building, Senator Everett McKinley Dirksen presiding. Present: Senators Dirksen (presiding), Butler, and Kefauver. Also present: Wayne H. Smithey, subcommittee counsel. Judge Parker, we are glad to have you with us. I apologize for having started another hearing in the Appropriations Committee the first thing this morning. Senator KEFAUVER? Senator KEFAUVER. Mr. Chairman, I have known Judge Parker for many, many years, and I would like the opportunity, not of introducing him, because Judge Parker needs no introduction to any assembly of lawyers or people in our country, but to say that Judge Parker, as we all know, is the chief judge of the Fourth Circuit Court of Appeals. In point of service, not of age, he is the oldest senior appellate judge in the United States. We know of his very fine and great work on the judiciary. I think that I may be stating it modestly to say that we consider Judge Parker 1 of the 2 or 3 best versed men on the subject of international law in our Nation. For a number of years, for a long period of time, he has been a member of the international and comparative law section of the American Bar Association and of the house of delegates, in which he has held several positions. He is chairman of the committee of the house of delegates on crimes against the law of nations, having succeeded Harold Stassen in that position. Judge Parker is section delegate of the house of delegates of the American Bar Association for section of international and comparative law. I believe he rendered to the house of delegates a report on this subject matter. Judge Parker is here attending the Judicial Conference. He was invited by Senator Langer to give his opinion on this resolution in view of his study and the activity he and his committee have had in connection with it. He has been invited to appear, and I am very glad that he did accept the invitation. STATEMENT OF HON. JOHN J. PARKER, JUDGE OF THE CIRCUIT COURT OF APPEALS FOR THE FOURTH CIRCUIT, AND SECTION DELEGATE OF THE HOUSE OF DELEGATES OF THE AMERICAN BAR ASSOCIATION FOR SECTION OF INTERNATIONAL AND COOPERATIVE LAW Senator DIRKSEN. Judge Parker, that is high praise from a man who is a distinguished lawyer in his own right, from the great Commonwealth of Tennessee. If you will state your full name and your residence, then we may proceed. Judge PARKER. Thank you, Mr. Chairman, and thank you, Senator Kefauver, for your very gracious presentation. Senator KEFAUVER. Those are good words coming from a Democrat for a Republican jurist, you will agree. Judge PARKER. My name is John J. Parker. I live in Charlotte, N. C., and I am one of the judges of the United States Court of Appeals for the Fourth Circuit. I thank you for the opportunity of appearing before you and expressing my views relative to Senate Joint Resolution 1, which proposes amendments relating to the treatymaking power contained in the Constitution. I feel deeply that the adoption of these amendments would greatly hamper this country in dealing with international affairs and I conceived it to be my duty as a citizen to express my views in a letter to the chairman of the Judiciary Committee of the Senate, a copy of which I sent to the Senators from my State and the Representative in Congress from my congressional district. There the matter would have rested, so far as I am concerned, but a member of this committee wrote me that he thought I should express my views befor the committee. I replied that because of my judicial position I thought I should not seek an opportunity to appear before the committee, but, if invited by the committee to appear, I should be happy to do so. I have received a letter from Chairman Langer saying that you will hear me and so I am here. Let me make clear, in the beginning, that I am not speaking in behalf of any organization but solely on my own account as an American citizen who is devoted to our Constitution and who fears that it may be impaired and the country injured by the proposed amendments. The letter which I wrote to the chairman of the Judiciary Committee is as follows: In re Senate Joint Resolution 1, S3d Congress, 1st session. Chairman, Senate Judiciary Committee, Senate Office Building, Washington, D .C. MARCH 6, 1953. MY DEAR SENATOR: I am writing to voice my opposition to the above resolution and to express the hope that it may not receive the approval of the Congress. It is my deliberate opinion, after careful study of the matter, that no amendment to the Constitution with resepet to the treatymaking power is needed and that the effect of the proposed amendments would be to needlessly hamper and shackle the Government in conducting foreign affairs at a time when the leadership of this country in the international field is needed as never before in our history. There can be no question but that the proposed amendments would hamper the Government in handling foreign affairs. They would require not only approval by two-thirds of the Senate, as at present, but subsequent approval by both Houses of Congress of a large and important class of treaties relating to trade and friendly intercourse between this and other countries. They would outlaw a large and important group of international agreements providing for arbitration or juridicial settlement of disputes of an international character. They would greatly hamper and embarass the executive in handling the details of foreign policy by means of executive agreements. If the amendments had been in effect, the commission which settled the "Black Tom" litigation could not have functioned, the executive agreements for the occupation of conquered territory in Germany and Japan would have been void and we would have been precluded from agreeing to the commission proposed by the Baruch plan for supervision in the various countries the manufacture of the atomic bomb. Surely it is not wise to tie the hands of the Government so that it cannot function effectively with respect to matters of this sort. There is, in my opinion, absolutely no need for any such amendments as are proposed. Insofar as treaties are concerned, the present requirement of the Constitution for ratification by two-thirds of the Senate is a sufficient safeguard. Surely the President and the Senate can be trusted. If the time should ever come when the President, the Secretary of State and two-thirds of the Senate are willing to bargain away by treaty the rights or liberties of the people of this country, we would have reached such a stage of national deterioration that nothing written in the Constitution could save us. Insofar as executive agreements are concerned, they are subject to legislative control by Congress without amendment to the Constitution. Furthermore, neither treaties nor executive agreements are of superior dignity to acts of Congress and, insofar as they constitute domestic law, are subject to repeal or change by act of Congress at any time. Head Money cases (112 U. S. 580, 597-599); The Chinese Exclusion case (130 U. S. 581, 600). Any provisions they may contain in conflict with express provisions of the Constitution are void. Geofroy v. Riggs (133 U. S. 258, 267). The fears which proponents of the amendments suggest, or something very like them, were fully considered at the time of the drafting of the Constitution and proposals of various sorts based on such fears were rejected by the Constitutional Convention. One hundred and sixty-four years of history has demonstrated that the fears were groundless. From a small and weak nation we have become one that is great and strong; and, while not all treaties or executive agreements have been wise, there has been no surrender under the treaty power of the rights or liberties of our people. I see absolutely no justification for tinkering with the treaty making power of the Constitution on the basis of fears which have been proven groundless through our experience of so many years. To amend the Constitution so as to hamper the Government in the exercise of the treatymaking power would, in my opinion, be unwise at any time. It seems to me doubly unwise to undertake such amendment at this time when the future of human freedom depends in large measure upon the effective participation of this country in international affairs. With high personal regards, I am, JOHN J. PARKER. I should like to elaborate a little on the statements contained in that letter. The proposal to amend the treatymaking power gains what strength it has from the fear that treaties may be used to impair the liberties of our people. I think that there is no sound basis for this fear. In the first place, the basic liberties of our people are guaranteed by express provision of the Constitution and I regard it is well settled that any treaty like any act of Congress, in conflict with express provisions of the Constitution is void. As said in Geofroy v. Riggs (133 U. S. 258, 267) : The treaty power, as expressed in the Constitution, is in terms unlimited except by those restraints which are found in that instrument against the action of the Government or of its Departments, and those arising from the nature of the Government itself and of that of the States. It would not be contended that it extends so far as to authorize what the Constituion forbids, or a change in the character of the Government or in that of one of the States, or a cession of any portion of the territory of the latter, without its consent. Fort Leavenworth Railroad Company v. Lowe (114 U. S. 525, 541). But with these excep tions, it is not perceived that there is any limit to the questions which can be adjusted touching any matter which is properly the subject of negotiation with a foreign country. Do you imagine for a moment that, if this Government should enter into a treaty or series of treaties changing the basis of representation in Congress or abolishing the writ of habeas corpus, or the right to compensation upon the exercise of eminent domain, or limiting religious liberty or freedom of speech or of the press, the Supreme Court would uphold the treaties against the guaranties of the Constitution? To ask such a question is to answer it. In the second place, we have a sufficient guaranty against such treaties in the existing constitutional provision requiring ratification of the treaty by two-thirds of the Senate. If the President and the Secretary of State were foolish enough to negotiate treaties which would barter away to other countries or to a world organization the rights and liberties of our people, surely no such treaty could get the support of two-thirds of the Senate. It was recognized by the framers of our Constitution that while the Executive must speak for the country in its relationship with other countries, he must speak with the approval of the legislative branch of the Government. It was proposed that treaties be approved by both Houses of Congress, as is the rule in many other countries today, but it was thought better to let the legislative branch speak through the Senate in the approval of treaties for a number of reasons, one of which was the better understanding of foreign policy which it was thought would result from the longer and overlapping terms of Senators. A two-thirds vote of the Senate was required, however, as a safeguard against precipitate action and for the protection of minorities and this safeguard has made it so difficult to secure fatification that the Senate has been called the graveyard of treaties. Some have thought the present requirement too restrictive and have advocated a liberalizing of the ratification process by allowing ratification by a mere majority of both Houses. Certainly there is nothing in our experience of 164 years to justify the thought that the requirement of ratification by two-thirds of the Senate is not a sufficient safeguard against all possible dangers to our liberties. In the third place, insofar as they constitute domestic law, treaties are subject to congressional action at any time; and, if the President and Secretary of State and two-thirds of the Senate should foist upon the people a treaty which infringed their liberties, a proposition so remote as to be unthinkable, the Congress could nullify it at any time insofar as it constituted domestic law by passing a statute to that effect. Of course it would require a two-thirds vote of Congress to override a Presidential veto if the President should veto the act; but it is as absurd to assume that two-thirds of Congress would not support constitutional rights as it is to assume that two-thirds of the Senate would be willing to override them. The decisions leave no doubt that insofar as domestic law is concerned a subsequent act of Congress takes precedence over the provisions of a prior treaty. In the Head Money Cases (112 U. S. 580, 598), the Supreme Court saidI am going to quote here a considerable paragraph from that opinion because I think it throws a great light upon the treatymaking power with reference to the legislative power. I quote: A treaty is primarily a compact between independent nations. It depends for the enforcement of its provisions on the interest and the honor of the governments which are parties to it. If these fail, its infraction becomes the subject of international negotiations and reclamations so far as the injured party chooses to seek redress, which may in the end be enforced by actual war. It is obvious that with all this the judicial courts have nothing to do and can give no redress. But a treaty may also contain provisions which confer certain rigths upon the citizens or subjects of one of the nations residing in the territorial limits of the other, which partake of the nature of municipal law, and which are capable of enforcement as between private parties in the courts of the country. An illustration of this character is found in treaties, which regulate the mutual rights of citizens and subjects of the contracting nations in regard to rights of property by descent or inheritance, when the individuals concerned are aliens. The Constitution of the United States places such provisions as these in the same category as other laws of Congress by its declaration that "this Constitution and the laws made in pursuance thereof, and all treaties made or which shall be made under authority of the United States, shall be the supreme law of the land." A treaty, then, is a law of the land as an act of Congress is, whenever its provisions prescribe a rule by which the rights of the private citizen or subject may be determined. And when such rights are of a nature to be enforced in a court of justice, that court resorts to the treaty for a rule of decision for the case before it as it would be a statute. But even in this aspect of the case there is nothing in this law which makes it irrepealable or unchangeable. The Constitution gives it no superiority over an act of Congress in this respect, which may be repealed or modified by an act of a later date. Nor is there anything in its essential character, or in the branches of the Government by which the treaty is made, which gives it this superior sanctity. A treaty is made by the President and the Senate. Statutes are made by the President, the Senate and the House of Representatives. The addition of the latter body to the other 2 in making a law certainly does not render it less entitled to respect in the matter of its repeal or modification than a treaty made by the other 2. If there be any difference in this regard, it would seem to be in favor of an act in which all three of the bodies participate. And such is, in fact, the case in a declaration of war, which must be made by Congress, and which, when made, usually suspends or destroys existing treaties between the nations thus at war. In short, we are of opinion that, so far as a treaty made by the United States with any foreign nation can become the subject of judicial cognizance in the courts of this country, it is subject to such acts as Congress may pass for its enforcement, modification, or repeal. And in the Chinese Exclusion Case (130 U. S. 581, 600), the Supreme Court said: The treaties were of no greater legal obligation than the act of Congress. By the Constitution, laws made in pursuance thereof and treaties made under the authority of the United States are both declared to be the supreme law of the land, and no paramount authority is given to one over the other. A treaty, it is true, is in its nature a contract between nations and is often merely promissory in its character, requiring legislation to carry its stipulations into effect. Such legislation will be open to future repeal or amendment. If the treaty operates by its own force, and relates to a subject within the power of Congress, it can be deemed in that particular only the equivalent of a legislative act, to be repealed or modified at the pleasure of Congress. In either case the last expression of the sovereign will must control. With respect to executive agreements, it is fair to say that they are subject to control by Congress under present constitutional provisions. Of course, the President as Commander in Chief of the Army and Navy has power to make such agreements as in the case of the protocol declaring an armistice at the end of the Spanish-American War or the agreements looking to the control of conquered territory in Germany and Japan at the end of the Second World War. And, incident |