tution, the Constitution is no more the law of the land than laws made pursuant thereto, or treaties made under the authority thereof. The grant of power is as broad as Jaques in As You Like It craved. Supreme power is supreme power and, it would seem, may be used according to the exigencies of the occasion. Only by a tour de force can any other meaning be given it. If limitations had been intended, it is difficult to see why some limitation had not been expressed. Perhaps, at that early day, they did not foresee the extent to which we would project ourselves into the field of world affairs any more than they could foresee the perverted construction that has been placed upon the words "general welfare" or the "commerce clause." At any rate, they did not make any limitation on this "supreme law." It may be here appropriately noted that one element in the process of treatymaking is more honored in its breach than in its observance, so far as one can see, namely, the "advice" privilege of the Senate. Aside from just ignoring this privilege, the Senate is sidestepped by the use of executive agreements. In some cases they have been deliberately used to bypass the Senate. It is possible that provision should be made, in a guarded way, for the making of agreements in respect to such as mail contracts and the like items, but it seems to me that should be expressly provided for. It has been stated that a subsequent act of the Congress would nullify a previous treaty. With this I cannot agree, on principle, if we are to respect the morality of our international dealings. A treaty is a bilateral act, while a law is a unilateral act, and no party to a contract can with impunity walk out of his contract. This is the view of Jay and what he told the public in article LXIV of the Federalist, and he had had considerable experience in the field of treatymaking (p. 329, et seq.). He had previously, in article III of the Federalist, remarked that "The just causes of war, for the most part, arise either from violations of treaties or from direct violence." This also does not click with the idea that a nation may with impunity walk out of its treaty obligations. Furthermore, if there is a Presidential veto, it would take a two-thirds vote of each House of the Congress to override it and, therefore, it is very doubtful if a treaty could be overriden if a Presidential veto were interposed. That argument, ergo, would seem to have somewhat of a hollow sound, and could not certainly be relied upon to absolutely protect what this proposed amendment is expected to protect. Perhaps it may be here not too irrelevant to remark that Jay, in addressing a grand jury, admonished that "vice, ignorance, and want of vigilance will be the only enemies able to destroy it (our constitutional system). Against these be forever vigilant." Furthermore, I assume that this proposed amendment is intended to scotch the heretical idea that because States refuse to do something that the Federal administration thinks should be done, that refusal ipso facto gives the Federal Government the power to do it. This has gone so far as to justify the Federal Government in voting lunch money for school children, as a matter of Federal power, when it was first voted based on war powers. I doubt if there is a State in the Union that is not better off financially than the Federal Government, with its 267 billion bonded debt and its many guaranties of one kind or another. It seems that many of the so-called do-gooders have not been able to execute their program as fast as they would like through domestic processes, and they are therefore now employing a side-door approach, such as through the several international covenants or programs now under consideration. Many others are, at least seemingly, more interested in some foreign country or peoples than in our own interests. It seems to be that many of our citizens and inhabitants have a perverted idea as to our interests or how to take care of our interests if there is not a perverted view of them. Many of us wonder if we have not gotten into the international waters over our heads. I noted in the leading editorial in the Washington Post of the 20th instant that it is said that the President remarked that what seems to be in mind in this proposal is to say that the Constitution should be changed so as to keep it the same as it now is. That is not quite or wholly correct. What is intended is to bring the interpretation of it back to its proper limits and then to keep it there. Some of us remember the interpretation placed upon the so-called general welfare clause, the commerce clause, the President's inherent powers, such as referred to in the Curtiss-Wright case, the Douglas pronouncement, above quoted, and the claims made by some of the State Department, and the attitude of quite a large segment of our population, foreign groups, and most of the metropolitan press et al. The Constitution is fast becoming one of our forgotten documents. The Steel case decision gave, of course, some of these elements quite a setback. The President, not being a lawyer, may not have been advised that there has as yet been no authoritative construction of the treaty provision insofar as scope is concerned. The only thing that he could go on is obiter dicta, and that is very unreliable, certainly not binding on the courts. What this proposed amendment does is to indelibly print in the Constitution what these obiter dicta indicate might be the decision of the Supreme Court when the question is met head on. What objection can there be to a declaratory amendment? Declaratory laws are repeatedly passed by the Congress. This proposed amendment is not absolutely rigid except where it should be. If a treaty is to become internal law, there is no good reason why the House should not have a chance to consider it. As it would have already gone through the Senate, the House would naturally have a good idea of it long before it was reached therein for consideration. There is no particular reason to think that at least generally such a matter could not be disposed of in a reasonable time, having in mind the circumstances environing the proposed treaty. The basic purpose is to return the Constitution to the place in which the Founding Fathers put it, and expected it to remain, unless amended by the process provided therein. I note from the current press that we are not about to have a Department of Health, Education, and Welfare, which will give greater impetus to the movement to invade the normal areas of State activities. The Federal Government is proceeding, boa constrictor fashion, to absorb those rights, and the courts have said that when the Federal Government puts money in any project it is only right that it may regulate the use thereof. When such funds are integrated into the States' finances, it would take a bold executive and legislature to vote funds to take the place of them, in order to recover their original powers; so, it is one thing after another, and the only way to scotch this movement is by constitutional amendment, as we note that the courts have generally expanded their views along with the legislative and executive departments. Witness such as the Cleveland housing case, and numerous cases under the commerce, as well as the general-welfare clause. The Executive's external powers have been expanded as we have seen, by the Curtiss-Wright case, and others, also, have been expanded as being inherent; so, by the Fabian principle of inevitability of gradualness the encroachments are made upon the rights of the States. Another evil angle is that the States have become so flabby in many areas as to be willing to go to Washington, hat in hand, and supplicate for a return of a part of the funds that they have sent there through the income and other tax contributions. This general subject need not be labored, as it is well known to most everybody. While there is no desire to place the Federal Government in a Procrustes bed, in this field, we do think that they should confine their activities to the external affairs of government, and if they are to invade the domestic field, it should be done only after the matter has been presented in such a way as to impress upon the public what is being done. The public does not always, I fear, pay too much attention to treaty making. Of course, when a drive is made, as President Wilson made in connection with the League of Nations, there is an exceptional situation created. However, many of the public will be taken in in connection with the human rights and genocide programs, and the like, because of the humanitarian appeal, but without analyzing them to see just where we will land at the end. Many times when we are looking after the other fellow's problems we overlook the effect on our own, and only wake up when it is too late. The CHAIRMAN. Thank you very much, Mr. Williams. Are there any other witnesses? If not, the committee will hear Mr. Dulles testify on April 6, Mr. Brownell on the next day, and Mr. Wilson or a representative on the 8th. (Whereupon, at 12 noon, the committee was recessed, to reconvene at 11 a. m., April 6, 1953.) TREATIES AND EXECUTIVE AGREEMENTS MONDAY, APRIL 6, 1953 UNITED STATES SENATE, COMMITTEE ON THE JUDICIARY, Washington, D. C. The committee met, pursuant to recess, at 10 a. m., in room 424, Senate Office Building, Senator William Langer, chairman, presiding. Present: Senators Langer, Wiley, Jenner, Dirksen, Watkins, Welker, Butler, and McCarran. Also present: Senators Bricker and Cooper; Wayne H. Smithey, subcommittee counsel. The CHAIRMAN. The committee will come to order. We are honored in having here in connection with Senator Bricker's resolution No. 1 former professor of constitutional law at Notre Dame University, Clarence Manion. Senator WATKINS. I understand Senate Joint Resolution 43 is also being considered. The CHAIRMAN. That is right. STATEMENT OF CLARENCE MANION, ATTORNEY, SOUTH BEND, IND., FORMERLY PROFESSOR OF CONSTITUTIONAL LAW, AND DEAN OF THE COLLEGE OF LAW, UNIVERSITY OF NOTRE DAME Mr. MANION. Thank you. Senator DIRKSEN. I would like to get in a few qualifying questions first. Dean Manion, let me ask, I think for the information of the committee, you have been a professor of law, as I understand, for about 25 years. Mr. MANION. That is right. Senator DIRKSEN. Your specialty has been constitutional law? Mr. MANION. That is right, Senator. Senator DIRKSEN. How long were you dean of the law school at Notre Dame? Mr. MANION. For 10 years, since 1941, and I resigned last June of 1952. Senator DIRKSEN. As I recall, you also established the Institute of Natural Law? Now, in 1950, I believe you received some kind of award. Was that the Freedom Award? Mr. MANION. Yes, in 1949 and 1950, the Freedom Foundation gave me a medal each year. Senator DIRKSEN. Are you presently identified with Notre Dame? Mr. MANION. No; my connection was severed last June of 1952. Senator DIRKSEN. I understand you are now in a consultant capacity to the American Legion on its Americanism_program. Mr. MANION. Yes. When I resigned at Notre Dame, I was made a special advisor to the Americanism committee of the American Legion. I am acting in that capacity now. Senator DIRKSEN. Has that identity some bearing on the resolution on which this committee has been having hearings and on which there has been some testimony? Mr. MANION. Yes. It has a great deal of bearing and I hope to bring that out. Senator WILEY. Are you practicing law? Mr. MANION. Yes. Senator WILEY. Where? Mr. MANION. South Bend, Ind. Senator WILEY. Before you were dean, you were a practicing lawyer; were you? Mr. MANION. Yes; I have been a practicing lawyer for 25 years. At the same time I have been dean and professor of law at Notre Dame. Senator WILEY. In your law practice, what particular fields are you interested in? Mr. MANION. We are in a general practice. We live in a small town and we cannot afford the luxury of specialization. The CHAIRMAN. Proceed. Mr. MANION. I have already stated my name and my background for the record. I deeply appreciate the invitation from members of this committee to express my views here this morning. More or less continuously during the past year I have discussed the general subject matter of Senate Joint Resolution 1 before thousands of people in every section of the country. It is an honor to have the privilege of discussing the subject before the most important audience of all, namely, the distinguished United States Senators who now have the great responsibility of determining this important and critical issue of treaty law. Previous witnesses in these hearings have thoroughly documented the important legal question which the proposed constitutional amendment is designed to answer and put at rest for all time. I will attempt to conserve the time of the committee by avoiding repetition of what has already been recorded. Let me say briefly, therefore, that I unreservedly concur with the previously recorded testimony of Mr. Frank Holman, of Seattle, Wash., past president of the American Bar Association, and with the conclusions and recommendations of the members of the standing committee on peace and law of the American Bar Association. Insofar as I am able to determine, no witness yet heard here has denied that present and proposed use of the treaty power challenges the reserved constitutional rights of American citizens and the constitutionally reserved power of the States that are described in the 9th and 10th amendments to the Constitution of the United States. From their analysis of accumulated court decisions some witnesses are convinced, with good reason I think, that a properly ratified treaty may com pletely change and/or supersede the Constitution itself. This was the position taken by the distinguished lawyer and now the Secretary of State, Mr. John Foster Dulles, when he spoke to the regional meeting of the American Bar Association in Louisville, Ky., April 12, 1952. I am sure that the legal opinion stated by Mr. Dulles at that time is shared now by the great majority of lawyers who have studied this question closely. The statement to which I refer is probably in the record now, but it is so short and so directly in point that I wish to read it again for emphasis: The treatymaking 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. In my judgment this conclusion is as accurate as it is restrained. Precisely, this is the frightening prospect from which the 64 distinguished authors of Senate Joint Resolution 1 are seeking to shield the American people. Not all of the lawyers who have seriously considered this question would state the challenge as categorically as it is phrased by Mr. Dulles, but in my judgment all students of the subject would take 1 of 3 possible positions on Mr. Dulles' opinion. One group would firmly agree with Mr. Dulles' conclusion, as I do. Another group would deny that all this has now been held judicially, but will admit that the sum of accumulated Court decisions make such a condensed conclusion highly probable if and when an appropriate case is presented to the Supreme Court. A third group would admit the possibility of such a holding by the Supreme Court, but would deny the probability of such a holding. The third group reinforces its determination by an irrelevant assurance that the Senate would not ratify a treaty which did the things described by Mr. Dulles. Of course, this reinforcement is beside the involved constitutional point that we are considering. The unanimous conclusion of all legal students of this matter of treaty law is therefore this: Every conclusion stated by Mr. Dulles concerning the legal effect of a duly ratified treaty may someday be embodied in a decision by the United States Supreme Court. All agree, in other words, that the constitutional liberty of our citizens, the constitutional integrity of the States of the Union, and last but certainly not least, the sovereign independence of the United States itself, is menaced by the threatened supremacy of treaty law. All agree that there is a grave question about the survival of each of these important things when and if a duly ratified treaty calls for their modification, compromise, or destruction. I submit that there is no conceivable reason why this serious universally admitted question should not be speedily settled by an appropriate constitutional amendment. Is there any reason-and this, I think, is the controlling question-why personal liberty, constitutional States rights, and national independence should remain subject to this grave risk of permanent loss? I insist that the controversy over this 80572-53-52 |