TREATIES AND EXECUTIVE AGREEMENTS TUESDAY, MARCH 31, 1953 UNITED STATES SENATE, SUBCOMMITTEE OF THE COMMITTEE ON THE JUDICIARY, Washington, D. C. Also present: Wayne H. Smithey, subcommittee counsel. You may proceed, Mr. Faupl. Mr. SMITHEY. Before we proceed with the testimony of the first witness this morning, Senator Kennedy has written requesting that the article by Mr. Bernard Fensterwald, Jr., which appears in the December 1952 issue of the Federal Bar Journal, be inserted in the record. I would like to ask, sir, that not only that article be inserted in the record but the article which precedes it by Senator John Bricker on the same subject. The CHAIRMAN. They will be inserted. (The documents referred to follow :) SAFEGUARDING THE TREATY POWER By Senator John W. Bricker, for the Federal Bar Journal Sixty-two other Senators joined with me in introducing Senate Joint Resolution 1. This proposed constitutional amendment is designed to prevent any treaty or executive agreement from undermining the sovereignty of the United States or the fundamental rights of its citizens. The four substantive sections of Senate Joint Resolution 1 read as follows: "SECTION 1. A provision of a treaty which denies or abridges any right enumerated in this Constitution shall not be of any force or effect. "SEC. 2. No treaty shall authorize or permit any foreign power or any international organization to supervise, control, or adjudicate rights of citizens of the United States within the United States enumerated in this Constitution or any other matter essentially within the domestic jurisdiction of the United States. "SEC. 3. A treaty shall become effective as internal law in the United States only through the enactment of appropriate legislation by the Congress. "SEC. 4. All executive or other agreements between the President and any international organization, foreign power, or official thereof shall be made only in the manner and to the extent to be prescribed by law. Such agreements shall be subject to the limitations imposed on treaties, or the making of treaties, by this article." The scope of the treaty-making power has been hotly debated ever since the founding of the Republic. At first, the debate centered on the use of the treaty 99 Congressional Record 160, 161, January 7, 1953. 2 A similar resolution, S. J. Res. 130, was introduced by me and cosponsored by 58 other Senators in the 82d Cong. (98 Congressional Record 921, February 7, 1952). Hearings on S. J. Res. 130 were held before a subcommittee of the Senate Judiciary Committee, but the resolution was not reported out of committee. power to invade rights reserved to the States by the tenth amendment. Jefferson said in his Manual of Parliamentary Practice: "It [the Constitution] must have meant to except out all those rights reserved to the states; for surely the President and the Senate cannot do by treaty what the whole government is interdicted from doing in any way." Patrick Henry expressed the same fear in the Virginia ratifying convention." The New York and North Carolina ratifying conventions, in particular, were concerned by the supremacy of treaties over State constitutions and laws. These fears were finally and fully confirmed, in Missouri v. Holland.* The Supreme Court held that a treaty with Great Britain enabled the Congress to regulate the killing of migratory birds, a subject which, in the absence of such treaty, the Court assumed to be within the constitutionally reserved powers of the States." Exactly the opposite conclusion was reached by the Judicial Committee of the Privy Council with respect to the treaty power of the Canadian Parliament. Since the tenth amendment fixes no limit to the treaty power, does the first amendment or any other part of the Constitution operate as a safeguard? The dangerous implication of Missouri v. Holland is that the treaty power is unlimited in scope. For example, Mr. Justice Holmes noted that whereas article VI, paragraph 2, makes laws passed “in pursuance" of the Constitution the "supreme law of the land," treaties possess that quality merely by virtue of being made "under the authority of the United States." He intimated that "under the authority of the United States" might mean nothing "more than the formal acts prescribed to make the convention.” Both Senate Joint Resolution 1 and the amendment proposed by the American Bar Association dispel this implication of Missouri v. Holland by resolving the issue of supremacy in favor of the Constitution and against the treaty.s Relatively few people maintain that the price of international peace and security must be paid for in terms of constitutional rights and freedoms. One such person is Bertrand Russell. He argues in a book just published that the rights of man must be surrendered to a world government, and that "we must learn to submit to law, even when imposed by aliens whom we hate and despise, and whom we believe to be blind to all considerations of righteousness." Much the same thought has been expressed by Dr. Philip C. Jessup in urging the adoption of the Human Rights Covenants proposed by the United Nations. Dr. Jessup observed that "not every personal guaranty which is congenial to the Constitution of the United States of America is necessarily well adapted to other civilizations," and suggested that while trial by jury, for example, might be necessary for the tribes of Africa, "they are not utilized in every western country, and it may be that they should not be used." 10 Similarly, some eminent American lawyers and jurists endorse the U. N. draft statute for an international criminal court. That proposed treaty nullifies constitutional protections of an accused in such unmistakable language " that it can be endorsed only on the theory that a treaty is capable of authorizing what the Constitution expressly forbids. If survival in an atomic age requires the surrender of fundamental rights and freedoms, what is our purpose in resisting Communist tyranny in Korea and elsewhere? 11 Most of the opponents of any treaty-clause amendment contend that section 1 of Senate Joint Resolution 1 is unobjectionable, but unnecessary." 12 They concede that no provision of any treaty has ever been held unconstitutional. critics point, however, to dicta in several Supreme Court decisions indicating 2a 3 Elliott, Debates 315-316. a 2 id. at 409; 4 id. at 246. A 252 U. S. 416 (1920). The 5 Federal legislation for the protection of migratory birds had been enacted prior to any treaty on the subject, but had been held unconstitutional by two lower Federal courts as beyond the delegated powers of Congress, United States v. Shauver, 214 Fed. 154 (E. D. Ark. 1914); United States v. McCullagh, 221 Fed. 288 (D. Kans. 1915). In fact, the Migratory Bird Treaty, 39 Stat. 1702 (1916), was made for the express purpose of providing a constitutional base for legislation of doubtful validity in the absence of treaty. 6 Canada v. Ontario and Other Provinces [19371, A. C. 326, holding that labor legislation by Parliament to implement a treaty did not supersede conflicting legislation of the Provinces. 7252 U. S. 416, 433. The first sentence of the American Bar Association recommendation reads as follows: "A provision of a treaty which conflicts with any provision of this Constitution shall not be of any force or effect." Russell, The Impact of Science on Society (1953). 10 Jessup, a Modern Law of Nations 92 (1948). 11 Finch. 644 (1952). An International Criminal Court: The Case Against Its Adoption, 38 ABAJ 12 The Washington Post, January 11, 1953 (editorial comment). that a treaty may not authorize what the Constitution expressly forbids." Since constitutional landmarks of recent vintage have not survived new fashions in judicial thinking, it is hardly prudent to stake everything on 19th century dicta. Mr. Chief Justice Vinson, dissenting in the Steel Seizure cases, implied that the United Nations Charter and the North Atlantic Treaty gave the President power to seize private property." Two other Justices joined with him in that opinion. Under the pressure of some future emergency, a majority of the Supreme Court may find that the treaty power authorizes action otherwise forbidden by the Constitution. Concerning the relative supremacy of treaties and the Constitution, reasonable men have reached opposite conclusions. The need to safeguard the treaty power has been recognized by the overwhelming majority in the American Bar Association, by the National Association of Attorneys General, 13 State bar associations, and 4 State legislatures. The dangers inherent in the treaty-making power were described in these words by Secretary of State John Foster Dulles : "The treaty-making power is an extraordinary power, liable to abuse. Treaties make 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 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 states 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." 16 Nevertheless, there are some who say that the President and the Senate should be trusted not to make a treaty contravening the Constitution. In 1924, the President and the Senate did just that. The year before the Supreme Court had held that the 18th amendment prohibited the importation of intoxicating liquor into the territorial waters of the United States. To overcome that effect of the 18th amendment, the President negotiated in secret, and the Senate approved in secret, a treaty with Great Britain." The validity of the treaty was challenged in one case which was decided on other grounds. Eternal vigilance being the price of liberty, locking the barn door before the horse is stolen is a better policy than chanting "It can't happen here." 18 Even a superficial knowledge of American history proves that the President and the Senate should not be trusted not to deny or abridge the inalienable rights of American citizens. The Bill of Rights came into being because the people did not trust the President and the Congress. If the President and the Senate can be trusted with an unlimited treaty power, would it be safe to repeal the first amendment and trust the President and the Congress not to make any law abridging freedom of speech, press, religion, and assembly? Since modern science has made a police state almost impregnable against internal revolt, government is entitled to much less trust today than it was a century or two ago. Those who would trust any branch of government with absolute power are advised to read the inscription on the coins in their pocket. Section 2 of Senate Joint Resolution 1 excludes from the reach of the treaty power matters essentially within the domestic jurisdiction of the United States. It makes effective, insofar as the United States is concerned, the prohibition contained in article 2 (7) of the United Nations Charter. Article 2 (7) provides that nothing contained in the charter shall authorize the United Nations to intervene in matters essentially within the domestic jurisdiction of any member nation. As long as treaties were concerned exclusively with the relation of sovereign states to each other," the dangers inherent in an unlimited treaty power were not so apparent. The dangers became clear and present when the United Nations embarked on a program to define and enforce the economic and political rights and duties of every human being in the world. With reference to this 13 Geofrey v. Riggs, 133 U. S. 258, 267 (1890); The Cherokee Tobacco, 11 Wall. 616, 620-621 (U. S. 1870). 14 Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 667, (1952). 15 Dulles, Address at the Regional Meeting of the American Bar Association, Louisville, Ky.. April 11, 1952. 18 Cunard S. S. Co. v. Mellon, 262 U. S. 100 (1923). 143 Stat. 1761 (1924). No record of the Senate debate on this treaty is available. 18 Milliken v. Stone, 16 F. (2d) 981 (2d Cir.), cert. denied, 274 U. S. 748 (1927). 19 Alexander Hamilton, in The Federalist, No. 75, stated the traditional function of treaties when he said: "They are not rules prescribed by the sovereign to the subject, but agreements between sovereign and sovereign." suicidal ambition, Judge Florence E. Allen, of the Sixth Circuit Court of Appeals, wrote: "No more vital question for the independence of nations and therefore for the peace of the world exists than that arising out of this paragraph 7 of article 2, which withholds from the United Nations the right to intervene in the domestic affairs of any member state. For over a century this question threatened the peace of the world in the Western Hemisphere *** and in fact has been the cause throughout the centuries of ceaseless revolts and unending resentment culminating often in armed conflict. "Unless American public opinion understands this situation and demands of the United Nations and the specialized agencies measures to counteract it and to educate world public opinion as to the results of legislation by treaty, both widespread misunderstanding abroad and a reaction against international cooperation among Americans could well arise. This would endanger the peace of the world." 20 "Aren't human rights within the domestic jurisdiction of each country?" That question was asked in an unsigned propaganda leaflet distributed last year by the State Department." The question is one which can be answered yes or no. Section 2 of Senate Joint Resolution 1 supplies an affirmative answer. The State Department, on the other hand, did not dare answer the question posed in its own leaflet. To have answered "Yes" would have been a confession of error in promoting such treaties as the U. N. Human Rights Covenants. A negative answer, meaning that the American people have lost control over their own rights, would have inflamed public opinion. Therefore, the State Department evaded the question. With this statement, however, it was implied that human rights have ceased to be matters of purely domestic concern: "The World War II peace treaties with Italy, Bulgaria, Rumania, and Hungary contain provisions on human rights." The reference is quite revealing. Nations defeated in war often lose essential attributes of sovereignty. When the relationship between a citizen and his own government ceases to be a domestic matter, that nation is no longer sovereign. For obvious reasons, the State Department failed to note in its leaflet that human-rights provisions were excluded from the body of the Japanese Peace Treaty. The principal architect of the treaty, John Foster Dulles, noted that Russia wanted human-rights clauses in the treaty so that it could interfere in Japan's domestic affairs." The major opposition to section 2 of Senate Joint Resolution 1 does not come from proponents of world or regional government. Responsible spokesmen for the United World Federalists and the Atlantic Union Committee concede that the spirit of the Constitution, if not the letter, requires a constitutional amendment to sanction such revolutionary goals." The plan for achieving world government by treaty or by less formal agree ment as suggested by Dr. Philip C. Jessup 24 is foreclosed by Senate Joint Reso lution 1. Opponents of Senate Joint Resolution 1 contend, however, that the consummation of great humanitarian treaties should not be blocked by constitutional amendment. The Department of State in the Truman administration maintained that "the basic civil and political rights set forth in the draft Covenant [on Human Rights] are well known in American tradition and law ***" 25 The cat was unbagged by Dr. Charles A. Malik, of Lebanon, Chairman of the U. N. Human Rights Commission. After noting that recent amendments to the Human Rights Covenants "responded for the most part more to Soviet than to western promptings," Dr. Malik attributed the fact to a "materialistic revolution" within the Human Rights Commission brought about by "the increasing impact of Marx" and "the apparent unimaginative helplessness of the Western World." " 20 Allen, The Treaty as an Instrument of Domestic Legislation 94, 108 (1952). 21 Office of Public Affairs of the United States Department of State, Questions and Answers on the U. N. Charter. Genocide Convention, and Proposed Covenant on Human Rights (June 1952). For a brilliant dissection of this leaflet, see Holman, State Department Half Truths and False Assurances (September 1952). 22 See Dulles, supra note 15. Revision of the United Nations Charter, Hearings Before a Subcommittee of the Senate Foreign Relations Committee. 81st Cong. 2d sess. (1950). 24 Jossun. The International Problem of Governing Mankind (1947). 25 Department of State Bulletin (June 25, 1951). Contra Bricker, U. N. Blueprint for Tyranny. The Freeman (January 28, 1952). Malik, Human Rights in the United Nations, 13 United Nations Bulletin 251, 253 (1952). Referring to the refusal of the U. N. Human Rights Commission to recognize the right to own property as a basic human right, Dr. Malik said: "A study of this particular debate will reveal the extent to which the nonCommunist world has been communistically softened or frightened. It seems incredible that in these economic matters *** the Western World is so divided on itself as to be incapable of presenting common front against communism." The adoption of a safer and more realistic international human-rights program is implied in the following statement by Mr. John Foster Dulles : "It is always tempting to look on treaties as an easy way to make high ideals come true. Actually it may do more harm than good for one nation to attempt by treaty to impose its moral standards on another people. Human rights should have their primary sanction in community will and when treaties ignore that, and try to substitute an alien will, the treaties themselves usually collapse through disrespect, dragging down the whole structure of international law, order, and justice." 28 Section 3 of Senate Joint Resolution 1 would make treaties non-self-executing in their effect on domestic law. At the present time, the Senate cannot know whether or not certain treaties alter certain Federal and State laws automatically or require implementing legislation. For example, in 1833 the Supreme Court held to be self-executing a treaty which it had held non-self-executing 4 years before." The celebrated Fujii case in California is a more recent reminder that treaties may have far-reaching and unintended consequences as a result of the American Constitution's unique treaty-supremacy clause. The intermediate California court held that articles 55 and 56 of the U. N. Charter were self-executing. The Supreme Court of California held they were not." The issue is still in doubt. If the Supreme Court of the United States should adopt the reasoning of the lower California court in the Fujii case, thousands of Federal and State laws will be nullified. The Senate, of course, anticipated no such result when it consented to the U. N. Charter in 1945. 32 Some international lawyers contend that by liberal interpretation or by interpretative resolutions adopted by majority vote a treaty may be amended without the consent of all original parties. Unless all treaties affecting domestic law are made non-self-executing as provided in section 3 of Senate Joint Resolution 1, the Senate cannot approve any treaty with assurance that it will not someday be construed to alter radically American rights under Federal and State laws. Section 4 of the joint resolution makes limitations on the treaty power applicable to executive agreements. In addition, executive agreements are brought under legislative control. During the past 10 years, the State Department has regarded treaties and executive agreements as interchangeable instruments of policy, the choice of procedure being entirely within the discretion of the executive branch. As a result, the Senate and the Congress were excluded from participating in some major policy decisions which resulted in irreparable damage to the national security. The treaty-executive agreement problem has been a perennial source of friction between the President and the Congress and should be removed. Senate Joint Resolution 1 will not prevent bad treaties, nor eliminate the need for careful scrutiny of all treaties by the Senate. What the amendment says, in effect, is that international cooperation must end at the point where the constitutional rights of American citizens are endangered or entrusted to agencies over which they have no control. TROJAN HORSE OR DON QUIXOTE'S WINDMILL Bernard Fensterwald, Jr.* American national disappointment with the course of world political events since 1945 has given impetus to a postwar sentiment in this country which is 27 Id. at 251. 28 Dulles, supra, note 15. 29 United States v. Percheman, 7 Pet. 51 (U. S. 1833); Foster v. Neilson, 2 Pet. 253 (U. S. 1829). 30 Fujii v. California, 217 P. (2d) 481, 218 P. (2d): 595 (1950). a1 242 P. (2d) 217 (1952). 2 Feller, United Nations and the World Community (1952); Jessup, Law of International Contractual Agreements, 41 Am. J. Int. Law 378, 397 (1947). The author is an assistant to the Legal Adviser, Department of State. The views expressed are his own and do not necessarily represent those of the Department. |