then international, orbits, by fostering the confection of self-executing foreign conventions dealing with matters of domestic concern.

The gilding of multipartite treaties with such idealistic immediate goals as the prevention of genocide and the promotion of human rights cannot conceal their underlying long-range objective to destroy local government while expanding the sphere of national power and setting a course toward world totalitarianism.

The Charter of the United Nations itself has already given rise to a threatened destruction of local self-government by a near-successful attack on the alien land law of California; and the same instrument has recently been cited with great force as a prohibition of race segregation in the District of Columbia, in Kansas, and in other States. Missouri against Holland demonstrated the impotence of constitutional provisions to purge national legislation enacted under international convention dealing with a salutary immediate objective, of its ultimate impetus toward an unhealthy sociological thesis.

The expanding danger to constitutional government from the doctrine of Missouri v. Holland beyond the sphere of States' rights under the 10th amendment was pointed some years ago by an attempt at express circumvention of the 18th amendment by treaty permitting the carriage on foreign vessels into ports of the United States of contraband intoxicants labeled "sea stores."

This constitutional deviation failed to achieve judicial sanction only by the questionable saving grace of a holding that the litigants attacking it lacked sufficient juridical interest to sustain their assault.

The 1st and 14th amendments are no more immune from transgression by international government than were the 10th and 18th.

Worthy as may be the superficial objectives of such a convention as that on the gathering and international transmission of news and right of correction (already signed for the United States) and that on freedom of information, they contain the festering germs of destruction of a free press beyond the antiseptic properties of the first amendment.

The American Bar Association sponsors provisions for amendment of the Constitution of the United States which provide, as revised in cryptic form by the members of the association's committee on peace and law through United Nations, and I make one small change in the formal draft which has been submitted, and in which I believe my colleagues concur:

A provision of a treaty which conflicts with 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 which wold be valid in the absence of treaty. Executive agreements shall be subject to regulation by the Congress and to the limitations imposed on treaties by this article.

These provisions, recently introduced as Senate Joint Resolution 43 by Senator Watkins and becoming known as the Watkins amendmert, wou'd accomplish, succinctly, the following imperative results: 1. All doubt as to the authority of the Congress over the making of executive agreements and to the supremacy of treaties and executive agreements over constitutional provisions would be allayed for all time.

2. Treaties and executive agreements would no longer be self-executing as internal law, but would achieve viable force within the United

States only by legislation, national or local, just as in practically all other countries.

3. The dangerous doctrine of Missouri v. Holland, under which the constitutional scope of Federal power in matters of domestic concern may be expanded indefinitely by the confection of treaties and executive agreements, will be abrogated.

Any compromise with these broad objectives would be unworthy of the militant ideals of the traditionally aggressive American spirit. Our cherished freedoms are under attack. They can be defended, and even raised to new heights in world history, by the erection of such a constitutional bulwark as the American Bar Association recommends. They may be lost by failure candidly to meet the issue. And I quote:

For the saddest epitaph which can be carved in memory of a vanished liberty is that it was lost because its possessors failed to stretch forth a saving hand while yet there was time.

The CHAIRMAN. Senator Bricker, do you have any questions?

Senator BRICKER. I have one question. Take Missouri v. Holland, which, as a duck shooter, I think has had a very good effect and has been in the national interest. If your amendment were adopted, the "which clause," I think it is generally conceded that the Federal Government had no jurisdiction under it. At least that was the interpretation of the courts anyway prior to the time of the treaty. How would that be handled?

Mr. DEUTSCH. It would have to be handled by State law or by some sort of agreement between the State and nation such as we have in some of our other methods of handling situations of that sort, like our social security program, for instance.

Senator BRICKER. It would have to either be handled individually by the States or by an agreement between the Federal Government and the States.

Mr. DEUTSCH. Yes.

Senator BRICKER. Or else there could not be any effective enforce

ment.

Mr. DEUTSCH. I think we have effective State enforcement of these matters.

Senator BRICKER. Or you would have to have the Congress with the interpreting support of the courts further stretching the commerce clause.

Mr. DEUTSCH. Exactly, the commerce or perhaps other clauses. Senator BRICKER. I think it would be doing a distortion of it rather than

Mr. DEUTSCH. The truth of the matter is that the two decisions which have upheld that, and which in my humble opinion were right, were district court decisions. Mr. Justice Holmes did give them sort of a left-handed sanction when he said, "We assume for our purposes that those decisions were correct." But it was not a direct affirmance in any sense of the word. It is quite possible that the Supreme Court, as now or hereafter constituted, may hold that that is a matter perfectly well within the Federal domain, and there are many, if I am not mistaken, who feel they would.

Senator BRICKER. I mentioned one or two other fields this morning in which there would be great difficulty if it were left to the States themselves. There is the matter of recognition of automobile licenses and the question of ownership of land has been discussed here already, I think very ably. What have you to suggest on that?

Senator SMITH. May I ask you right there, couldn't that be done by way of interstate compacts?

Mr. DEUTSCH. That is what we were mentioning.

Senator BRICKER. There is no question about that.

Mr. DEUTSCH. We mentioned compacts between the States or between the States and the Federal Government.

Senator BRICKER. That could be done individually by the States through compact or through agreement with the Federal Government or through the Federal Government if the courts would stretch the commerce clause sufficiently.

Mr. DEUTSCH. Or some other clause.

Senator BRICKER. Yes.

Mr. DEUTSCH. I think maybe "stretch" is a bad word. I would say "give them adequately wide scope."

Senator BRICKER. That is what they have been doing.

Mr. DEUTSCH. One of our former Congressmen from Louisiana, James O'Connor, made the statement that he was a great believer in the elasticity of statutory construction.

Senator BRICKER. That is what we are trying to get at, of course. Mr. DEUTSCH. Exactly.

And as for your further questions, I am in complete accord with what has already been said. I see no insurmountable obstacle in the land questions, in the practicing of the profession, in the carrying on of trade, and I see no reason why that cannot be done through the States, or if any such great problem is ever met which cannot be solved in that way, ultimately we can have a constitutional amendment to deal with it just as we have had 22 so far. We had to enact one to limit the President's term after 160 years, and we can have others as occasions may arise in that regard.

Senator BRICKER. It is that field in which I was vitally interested here, that we do not preclude proper Federal action.

Mr. DEUTSCH. That is right.

The CHAIRMAN. Senator Smith, have you a question?

Senator SMITH. It was answered. I have no other question.

The CHAIRMAN. Senator Watkins?

Senator WATKINS. I have no questions.

The CHAIRMAN. How about the staff?

Mr. DEUTSCH. May I hold it just a moment to complete the tail end portion of my presentation?

The CHAIRMAN. Yes.

Mr. DEUTSCH. In the September 1952 issue of the American Bar Association Journal appears an article entitled "The Need for a Treaty Amendment-a Reply," which was published over my name, but which, as a practical matter, states the position of the American Bar Association on this matter, and I would ask leave to put that into the record along with my statement.

The CHAIRMAN. The record will so show.

(The article referred to is as follows:)

THE NEED FOR A TREATY AMENDMENT: A RESTATEMENT AND A REPLY

(By Eberhard P. Deutsch, of the Louisiana Bar (New Orleans))

Henry St. George Tucker, a distinguished legal scholar, for some years an outstanding member of Congress from Virginia, and a former president of the American Bar Association,1 in his great book, Limitations on the Treaty-Making Power, published in 1915, characterized the treaty clause of the Constitution (article VI) as a "Trojan Horse," ready to unload its hidden soldiery into our midst, destroying State laws and constitutions, and leaving behind the wreckage of the dream of the Founding Fathers which envisioned maintenance of the established constitutional balance between State and Federal power, and preservation of the Bill of Rights intact.

Why do we need a constitutional amendment to regulate the treaty-power? Why does the treaty-making power under the constitutional provisions which have not been changed since 1789, now give rise to such a powerful movement to amend those provisions? There are three reasons:

(1) In what is otherwise a government of limited and delegated powers under the Constitution, no express limitation exists on the treaty-power, and the existence of any implied limitation is shrouded in doubt.

(2) A basic change of viewpoint is being carried into effect with respect to the functions and purpose of treaties. A veritable avalanche of new treaties is being sponsored by the United Nations and its affiliated organizations in the social, economic, cultural, and civil and political fields. It is reliably reported that they have 200 treaties "in the works."

(3) Persistent efforts have been made during the past two decades to find additional constitutional basis for expansion of the powers of the Federal Government, and the treaty-power has been seized upon as a conveniently available vehicle for such expansion.

While acts of Congress are valid only when made "in pursuance of" the Constitution, treaties are the supreme law of the land if they are made "under the authority of the United States." Under a treaty, Congress, by virtue of article I, section 8, can pass all laws necessary and proper to give effect to and implement treaties, even though, in the absence of such treaty, Congress would not have power under the Constitution to pass such legislation; neither by reservation nor understanding can this power of Congress be controlled if Congress chooses to exercise it.2

The authority of Congress under the treaty clause was expounded in the leading case of Missouri v. Holland (252 U. S. 416 (1920)), in which it was held that Congress has power under a treaty to enact legislation which would be unconstitutional in the absence of a treaty. Professor Lauterpacht, of Cambridge University, England, a recognized contemporary authority on international law, has characterized the decision in Missouri v. Holland as a construction "dangerously approaching that of a constitutional amendment." The trend toward an unlimited treaty power was further developed in United States v. CurtissWright Corporation (299 U. S. 304, 316-19 (1936)), in which the Court in broad dicta quite erroneously regarded the treaty power not as a delegated power but as a power inherent in sovereignty.*

11904-5; see 75 A. B. A. Rep. 553 (1950); see also Who Was Who, volume 1, page 1256. The Trojan horse" characterization occurs on page 339 of his book.

* This statement represents the agreed views of the American Bar Association's com mittee on peace and law through United Nations, and of that association's section of international and comparative law in a joint report. See Report of Committee on Peace and Law, September 1, 1951, page 36.

An International Bill of Rights of Man, p. 179.

It is believed (and the decisions based on the law of nations cited by the court confirm that belief) that the Curtiss-Wright decision confuses the position of the United States as viewed under interntaional law by foreign nations with the position of the United States in international relations as a matter of domestic constitutional law. Under the Constitution the treaty power is expressly delegated to the United States (art. II, sec. 2) and expressly prohibited to the States (art. I, sec. 10). Other cases accurately refer to the treaty power as having been "delegated expressly." See Missouri v. Holland (252 U. S. 416, 432) and cases cited in Report of Committee on Peace and Law, February 1, 1952 third printing, May 1, 1952), page 8. The report referred to analyzes and criticizes the Curtiss-Wright case. A similar criticism of that case is found in Mr. Justice Jackson's concurring opinion in the Steel Seizure cases, decided June 2, 1952, footnote 2, in which be says, "Much of the Court's opinion is dictum," and points out that the case involved solely power expressly delegated to the President in an act of Congress.

While some argument has been made that such dicta as contained in The Cherokee Tobacco (11 Wall. 616, 620-1 (1870)) and Geofroy v. Riggs (133 U. S. 258, 267 (1889))-the treaty power does not "authorize what the Constitution forbids"-should abate all fears on this subject," the fact remains that Missouri v. Holland, supra, and United States v. Curtiss-Wright Corporation, supra, go in the opposite direction toward an unlimited treaty power.

In Missouri v. Holland, supra, it was recognized that the Constitution did forbid congressional control over migratory birds in the sense that the power was not delegated, and was, therefore, reserved to the States under the tenth amendment. It had been so held in cases cited in the Court's opinion. The Curtiss-Wright case, supra, dealt only with an express congressional delegation of power to the President authorizing him in certain circumstances to forbid the sale of arms to foreign countries, and did not involve the treatymaking power; nevertheless broad dicta were made with reference to it, which viewed from the standpoint of international law through the eyes of a foreign nation may be acceptable, but not as domestic constitutional law, under which the treatymaking power is a delegated power."

QUESTION SHOULD BE SETTLED ONCE AND FOR ALL TIME

In any event, since the last dozen years have seen hundreds of earlier decisions overruled and disregarded, it seems appropriate not to rest content on the dicta of early cases, but to settle by unequivocal language once and for all time that treatymaking power cannot be used for purposes in conflict with the Constitu

tion.

Richard Henry Lee, of Virginia, and Patrick Henry, of Virginia, both strongly objected to the treaty clause at the time the adoption of the Constitution was under debate. It is clear from the sharp debates over the lodgment of the treaty power, and the effect of its exercise, that the founding fathers definitely visualized the possible need for amendment. Jefferson, who, by reason of his ambassadorship to France, was not a member of the Constitutional Convention, did concern himself greatly with ratification and with the first 10 amendments, and in his Manual of Parliamentary Practice had this to say:

"By the general power to make treaties, the Constitution must have intended to comprehend only those objects which are usually regulated by treaties, and cannot be otherwise regulated.

"It 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." [Italics supplied.]

The addition of the Bill of Rights to the original Constitution was thought to have counteracted the dangerous loophole in the treaty supremacy clause of article VI and to control its interpretation. It is certainly plain from the whole history of the Constitution and of the first 10 amendments that it was never intended, or even remotely contemplated, that the established constitutional balance between State and Federal power could be substantially upset by the exercise of the treaty power.

At the time the Constitution was adopted and until recently, treaties entered into by the United States were compacts in the primary sense of duties and obligations imposed on the contracting States, and not on individual citizens.

Alexander Hamilton stated that treaties "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 hetween sovereign and sovereign."

Today, however, treaties are being proposed, and at least one has been submitted to the Senate for ratification, which impose civil and criminal liability for acts of citizens of the United States, or which affect rights of and impose

See State Department Bulletin, December 31, 1951, p. 1062. In United States v. New Orleans, 10 Pet. 662, 763 (1836), the Court said: "The Government of the United States, as was well observed in the argument, is one of limited powers It can exercise authority over no subiects, except those which have been delegated to it. Congress cannot, by legislation, enlarge the Federal jurisdiction, nor can it be enlarged under the treaty making power." The reasoning of this case conflicts with Missouri v. Holland. See 37 A. B. A. J. 856, footnote 131.

• See footnote 4.

See Eberhard P. Deutsch, the Treaty-Making Clause: A Decision for the American People. 37 A. B. A. J. 662 (1951). 3 Elliot's Debates (2d ed.) 503.

2 Farrand. Records of the Federal Convention (rev. ed. 1937), p. 370; see also 3 Farrand 136. 26-287: 1 Farrand 164, 245; 2 Farrand 297.

The Federalist, No. 70.