case. If two more had agreed with them, then we would be face to face with what you suggest here.

Mr. Rix. I think we have been fully conscious of that, Senator.

Do we want to live under that type of government? Can we repudiate the obligations under the Charter of the United Nations? What would be the effect on the world if we taken an act to repudiate that power right now? I say that we must be sure that in this amendment that we are proposing that the power will exist, or that a situation will be covered which removed the power of Congress to legislate beyond its express powers, or our system of delegated government goes out of the window.

Going back to that question of what that lawyer would do in the case of constitutionality, suppose the Supreme Court of the United States decided that the legislation was invalid under the Constitution, and also invalid under the Charter of the United Nations, and our Nation made a point of endeavoring to secure, for instance, an advisory opinion from the Court of International Justice, and the Court of International Justice should hold contrary to the opinion of the Supreme Court of the United States? Where would we be in the opinion of the world?

Gentlemen, these are unheard of questions, but they are here and they must be met in some way.

Now, I have asked in this article two questions: one, if we can permit the situation to exist that now exists, can the independence of the judiciary be maintained? We fought hard in the early days to secure the position of the Supreme Court by which it could declare unconstitutional any acts of Congress. If a superpower should exist, or if it does not have to look to the Constitution of the United States but has to look to the provisions of treaties for the source of power to enact the legislation, what becomes of our independence of the judiciary? Senator WATKINS. They have their independence, but their decrees would not amount to anything.

Mr. Rix. That is it.

Senator WATKINS. There would be an authority higher than the Constitution.

Mr. RIX. That is right.

Another question I ask is what protection can minorities have under a government with unlimited powers?

Senator BRICKER. That is the most serious question of all.

Mr. Rix. We see constantly in the press and at every hearing a member of a minority appealing to the Constitution of the United States. I grant that the word "prohibited" which was used by Mr. Justice Holmes in the Migratory Bird case may be expanded upon to mean that if any power is prohibited by the Constitution of the United States, such as the power of Congress to enact legislation affecting religion or freedom of the press, that there may be a question still existing, and I will say that my comembers of the committee did not agree with the use of the word "prohibitive," but out of supercaution I used Justice Holmes' word because the argument is just as strong whether it is prohibited or not. But if we are to live under a government of undelegated powers, whether it is for 5 years or 10 years or 20 years, so long as a majority desires to impose its power, what becomes of the protection to the minorities under our treaty provisions?

They do not have any protection. Therefore. I say that the first thing we must do, Mr. Chairman, is to make sure that whatever amendment we enact takes away this power of Congress to enact legislation without constitutional authority under a treaty.

Thank you.

Senator BRICKER. That was an excellent job, Mr. Rix.

The CHAIRMAN. Mr. Hatch? Have you a prepared statement, Mr. Hatch?

STATEMENT OF VERMONT HATCH, NEW YORK, N. Y., MEMBER OF THE NEW YORK AND UTAH BAR ASSOCIATIONS, AND MEMBER OF THE COMMITTEE ON PEACE AND LAW THROUGH UNITED NATIONS

Mr. HATCH. No, sir; I have not.

Mr. Chairman, and gentlemen of the committee, my name is Vermont Hatch, 14 Wall Street, New York, N. Y. I am a member of the New York Bar and the Utah Bar and a member of the committee on peace and law through United Nations.

Coming as I do after members of the committee, such as Mr. Schweppe and Mr. Rix, I perhaps might be called the crumb collector. I am going to try and collect a few crumbs and lay them before this committee.

First of all, Mr. Chairman, I wish to express my thanks to the subcommittee for this opportunity to lay before you a few views that I have formed in the course if my study of this matter. In the hearings last May before the subcommittee that preceded this one I gave testimony which appears at page 55 of the hearings, and I shall not repeat that. I had to do with the preparation of a memorandum which appears at page 517 of that record, and I will ask your indulgence to have that memorandum, if you will, incorporated in this hearing. The CHAIRMAN. It is so ordered.

(The material referred to is as follows:)

MEMORANDUM IN REPLY TO THE MEMORANDUM OF THE DEPARTMENT OF JUSTICE ON SENATE JOINT RESOLUTION 130, EIGHTY-SECOND CONGRESS, PROPOSING AN AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES RELATIVE TO THE MAKING OF TREATIES AND EXECUTIVE AGREEMENTS

On June 19, 1952, the Department of Justice, through the then Solicitor General of the United States, Philip B. Perlman, filed with the subcommittee of the Senate Committee on the Judiciary a memorandum entitled as above set forth in which is outlined its objections to every part of the constitutional amendment proposed by Senate Joint Resolution 130, as well as the proposed constitutional amendment suggested by the American Bar Association. That memorandum states:

"Accordingly, the Department opposes any of the suggested amendments to the treaty power" (p. 2), and

"For the reasons stated in this memorandum, the Department of Justice opposes all of the proposed amendments to the Constitution" (p. 40).

This reply will answer the memorandum of the Department of Justice only insofar as it applies to the constitutional amendment recomended by the American Bar Association through action of its house of delegates on February 26, 1952, to the Congress of the United States for consideration, and which proposed amendment reads as follows:

"A provision of a treaty which conflicts with any provision of this Constitution shall not be of any force or effect. A treaty shall become effective as internal

law in the United States only through legislation by Congress which it could enact under its delegated powers in the absence of such treaty.'

It would seem that the most logical and helpful approach would be as follows, and this memorandum will be divided accordingly.

I. The Scope of the Treaty Power Today and the Power of Treaties;

II. The Suggestions of the American Bar Association as They Affect the Treaty Power; and

III. An Evaluation of the Ultimate Position of the Department of Justice in Its Memorandum and Consideration of Some of Its Objections to the American Bar Association's Proposed Amendment.

The memorandum of the Department of Justice seems, as will appear, to be a plea for ever-expanding Federal power, through the treaty route, over the States and over the individual citizens. This treaty route is capable of being used to regulate the everyday relationships between the individual citizen and his government, both State and national, in almost limitless fields where the Federal Government is incompetent to act aside from the treaty mechanism. It is already proposed that this mechanism should be used for the creation of international crimes with which our citizens might be charged for actions by them within the United States and for which they might be triable not only by local courts but also by an international criminal court. The draft statute of the proposed International Criminal Court would eliminate both indictment of a grand jury and trial by jury, and fails to afford adequate protection against the introduction at the trial of the accused of an involuntary confession made by him."

Our National Government is and should be one of limited and delegated powers, and the issue presented is whether a constitutional amendment is necessary in order to preserve the essential balance between Federal power and the powers of the States, and to protect the individual citizen against the imposition of civil and criminal liability and against impingement upon the rights and freedoms of the individual citizen by the Federal Government through the exercise of the treaty-making power.

POINT I. THE SCOPE OF THE TREATY POWER AND THE POWER OF TREATIES

As is so well known as to scarcely need reference, the treaty power is conferred by article 2, section 2, paragraph 2 of the Constitution upon the President "by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the Senators present concur."

The power of treaties (the supremacy clause)' is provided for in article VI, second sentence, as follows:

"This Constitution and the laws of the United States which shall be made in pursuance thereof, and all treaties made or which shall be made under the authority of the United States, shall be the supreme law of the land; and the judges in every State shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding."

The distinction between the treaty power and the power of treaties should be kept in mind at every stage of any discussion of this subject.

The two provisions quoted above, together with the "necessary and proper" clause (art. I, sec. 8, last clause), giving Congress power "to make all laws which and all other powers vested by this Constitution in the Government of the United States, or in any department or office thereof," make up the constitutional background of the discussion.

What is the scope of the treaty power?

"At no time during the convention [1787] was there any suggestion that the treaty power should be limited as to scope or subject matter" (Department of Justice memorandum, p. 5, hereafter referred to as "D. of J. M.").

"The framers of the Constitution carefully refrained from stating any limitation on the scope of the treaty power" (D. of J. M., p. 17).

1 Report of Standing Committee on Peace and Law Through United Nations, February 1, 1952, second printing. March 15. 1952.

2 Genocide Convention, art. I. VI; draft statute for an International Criminal_Court formulated at Geneva in the summer of 1951, and appearing as Appendix C to the Report of the Committee on Peace and Law, February 1, 1952, p. 31. This draft statute is fully discussed in articles appearing in the American Bar Journal for August 1952.

We use the phrase "treaty power" to describe the power to make and the scope of treaties. We use the phrase "power of treaties" to indicate the consequences of the exercise of the treaty power.

"As has been noted, the power to enter into treaties was granted by the Constitution without any express limitation as to its scope or as to the subject matter of possible treaties" (D. of J. M., p. 26).

"Accordingly, the Supreme Court has uniformly stated that, 'the treaty power of the United States extends to all proper subjects of negotiation between our Government and the governments of other nations. Geofroy v. Riggs (133 U. S. 258, 266)'" (D. of J. M., p. 27).

"Such treaties could have the force of domestic law if they were self-executing, or could be implemented by legislation under the 'necessary and proper' clause" (D. of J. M., p. 27).

The American Bar Association's proposal would limit this tremendously broad treaty power not with respect to external affairs, but only with respect to its use to upset the essential balance between Federal power and the powers of the States and as a means of creating internal law imposing civil and criminal liability on the individual citizen and impinging on the rights and liberties of the individual citizens in areas where the Congress could not so do in the absence of a treaty.

While the Department of Justice quotes (D. of J. M., p. 29) with approval from the Seventy-fifth Federalist Paper written by Alexander Hamilton a part of the following sentence regarding the treaty power:

"Though this provision has been assailed on different grounds, with no small degree of vehemence, I scruple not to declare my firm persuasion, that it is one of the best digested and most unexceptionable parts of the plan." [Italics added to indicate part quoted in D. of J. M.]

the course of its argument clearly indicates that it is not in sympathy with all of that Seventy-fifth Federalist Paper, for in it and as an argument in favor of accepting this treaty power, Hamilton said:

"The power of making treaties is, plainly, neither the one nor the other. It relates neither to the execution of the subsisting laws, nor to the enaction of new ones; and still less to an exertion of the common strength. Its objects are, contracts with foreign nations, which have the force of law, but derive it from the obligations of good faith. They are not rules prescribed by the sovereign to the subject, but agreements between sovereign and sovereign." [Italics added.] Contrast this with the language of Mr. Justice Holmes in Missouri v. Holland, (252 U. S. 416, at p. 433 et seq.):

* * The treaty in question does not contravene any prohibitory words to be found in the Constitution. The only question is whether it is forbidden by some invisible radiation from the general terms of the tenth amendment. We must consider what this country has become in deciding what that amendment has reserved.

*

2/2 * No doubt the great body of private relations usually fall within the control of the State, but a treaty may override its power.

串 *

"Here a national interest of very nearly the first magnitude is involved. It can be protected only by national action in concert with that of another power. [Emphasis added.]

* *

Here we find the real point of departure between the protagonists of a Federal Government practically all powerful through the treaty mechanism and those would retain some substance, some meaning in the tenth amendment reading: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

The treaty power has always been present in the Constitution, but it is inaccurate to say that "The issues raised by the proposed amendments are not new. Most of them were considered fully during the drafting and adoption of the Constitution" (D. of J. M., p. 2). The issues are new, because the circumstances of treaty making and the present extent and objectives of treaties are entirely new. Multilateral treaties, of the character of the Charter of the United Nations and the many proposed multilateral treaties which are growing out of that document, were unknown in 1787. They are a product of a new concept of world organization. It is proposed to use the treaty power to forward such organization and, in furtherance of it, to legislate internally by the treaty mechanism for the regulation of rights and relationships hitherto regarded as solely domestic and mostly within the jurisdiction of our States.

Issues may be of law or may be of fact; but the issues on this question of treaty power are of law and fact. They were in 1787 and must today be considered against the factual backgrounds in connection with which they are presented. And those factual backgrounds have changed so radically since 1787

that the issues presented then bear no resemblance to the issues now presented with respect to the same constitutional provisions.*

The Department's memorandum goes into the history of the constitutional provisions dealing with the treaty power and with the power of treaties. It demonstrates that under the Articles of Confederation a treaty or treaties had been made which the Congress was powerless to enforce under the Articles of Confederation.

The Department's memorandum lays emphasis on the Treaty of Peace with Great Britain signed at Paris September 3, 1787, which provided:

"ARTICLE IV

"It is agreed that creditors on either side shall meet with no lawful impediment to the recovery of the full value in sterling money, of all bona fide debts heretofore contracted" (8 Stat. 82);

on article V of that treaty dealing with confiscated lands, on the State laws interfering with the collection of those debts, and on the cases dealing with the power of this treaty after the Constitution was adopted.*

No reference is made, however, to the treaty of May 4, 1796, with Great Britain' under article VI of which provision was made for the ascertainment of the amount of debts uncollected "by the operation of various lawful impediments since the peace" and which were to be paid by the United States. Certainly nothing like that situation faces the United States today. There is today no question of an outstanding treaty made by the United States which it is powerless to comply with because of the recalcitrance of the States.

Exactly the reverse is the situation confronting us. Under this treaty power and this power of treaties the very existence of the States as sovereign bodies, their constitutions and their laws-even those relating exclusively to their internal affairs-are subject and subservient to the Federal Government.

It serves no purpose to review the debates in the Constitutional Convention or in the ratifying conventions. As set forth in the Department's memorandum, much was said about the treaty power and about the treaty situation then confronting the country, which is far different from that with which we are faced. As stated in the quotation above from Hamilton's Seventy-fifth Federalist Paper, the reposing of the treaty power as it was placed was assailed on various grounds with no small degree of vehemence.

It is worthy of note, however, that at least three States proposed amendments dealing with the power of treaties-the supremacy clause as follows: Suggested amendment by Virginia:

"7th. That no commercial treaty shall be ratified without the concurrence of two-thirds of the whole number of the members of the Senate; and no treaty ceding, contracting, restraining, or suspending, the territorial rights or claims of the United States, or any of them, or their, or any of their rights or claims to fishing in the American seas, or navigating the American rivers, shall be made, but in cases of the most urgent and extreme necessity; nor shall any such treaty be ratified without the concurrence of three-fourths of the whole number of the members of both houses respectively." (III, Elliot's Debates, p. 660.) Suggested amendment by Pennsylvania:

"Article 6, paragraph 2, XII. That to article 6, clause 2, be added the following proviso, viz.: Provided always that no treaty, which shall hereafter be made, shall be deemed or construed to alter or affect any law of the United States, or of any particular state, until such treaty shall have been laid before and assented to by the House of Representatives in Congress." (II, Elliot's Debates, p. 546.)

4 That difference is recognized in the case of Missouri v. Holland (252 U. S. 416), which case more than any other is responsible for the present proposals to amend the Constitution and which will be referred to repeatedly throughout this memorandum. Mr. Justice Holmes said. p. 433: "The case before us must be considered in the light of our whole experience and not merely in that of what was said a hundred years ago."

5 D. of J. M.. p. 11.

D. of J. M.. p. 12. 78 Stat. 116.

Finch: The treaty clause amendment: The case for the association (38 Am. Bar Assn. Journal 467, at 529), reviews this entire matter and shows that under a treaty signed January 8, 1802, the United States paid Great Britain the sum of £600.000 with which to compensate the creditors for their losses. Attention might be called to the Trading With the Enemy Act and to the "freezing" of foreign credits in the late war.