STATEMENT OF CONGRESSMAN GORDON L. MCDONOUGH

Mr. Chairman, I appreciate the opportunity of submitting for your committee's consideration the text and following statement on House Joint Resolution 57, which I trust will assist your committee in writing the final text of the bill you will submit to the Congress for consideration on this important subject.

I have been personally interested in this subject for some time, having introduced House Joint Resolution 325 in the 82d Congress and House Joint Resolution 57 in the 83d Congress. The text of my House Joint Resolution 57 is as follows:

"Treaties made under the authority of the United States and international agreements entered into by the President or by any other officer or agency of the United States shall be void to the extent that they abridge, abrogate, nullify, subordinate, or interfere with any and all of the rights and freedoms guaranteed to citizens of the United States by the Constitution of the United States." In reading the testimony previously submitted to your committee, the major objections by Secretary of State Dulles, Harold Stassen, Mutual Security Administration Director, and others from the executive branch of the Government is that Senate Joint Resolution 1 and the other resolutions before your committee interfere seriously with the treatymaking power of the President and would further complicate the foreign policy of the United States.

My House Joint Resolution 57 would present no such objection because it states in very simple and understandable terms that in the event that any phrase, clause, paragraph, statement, or part of a treaty made between the United States and a foreign country should abridge, abrogate, nullify, subordinate, or interfere with any of the rights and freedoms guaranteed to the citizens of the United States under the Constitution, that they shall be null and void.

In other words, the President of the United States, the Secretary of State, or any other branch of the Government may proceed without interference or complication to make treaties and international agreements with foreign nations, but should any part of that treaty later be challenged by any citizen of the United States as a violation of his rights or freedoms guaranteed under the Constitution of the United States the courts of the United States are hereby notified that such part of the treaty or international agreement is null and void, and it further means that all other parts of the treaty shall be in full force and effect.

I have been informed that the committee is seeking simple, direct, and understandable language which will protect the constitutional rights and freedoms of the people of the United States in connection with treaties with foreign countries. I am confident that my resolution will do this far more effectively than Senate Joint Resolution 1 or the other resolutions under consideration by your subcommittee.

I have had nationwide recognition, approval, and endorsement of my House Joint Resolution 57 of this Congress, and also of my House Joint Resolution 325 which I introduced in the 82d Congress. In my opinion, the majority of the people of the United States are in favor of this kind of constitutional amendment. I trust that my House Joint Resolution 57 will be given serious consideration by your committee in writing the final draft on the resolution you submit to the Congress.

I request unanimous consent of the committee to include the attached statement with my remarks submitted for inclusion in the record of the hearings on Senate Joint Resolution 1 and other resolutions.

ETERNAL VIGILANCE IS THE PRICE OF LIBERTY

Speech of Hon. Gordon L. McDonough, of California, in the House
of Representatives, Tuesday, January 6, 1953

No

Mr. MCDONOUGн. Mr. Speaker, eternal vigilance is the price of liberty. words, in my opinion, can better describe the purpose and intention of my Hones Joint Resolution 57 which I introduced on the 1st day of this Congress—Nid Congress. I used the same title for a speech on the same subject during the last Congress-$2d Congress-when I introduced my House Joint Resolution 325 which would have accomplished the same objective as House Joint Resolution 57 will accomplish.

The United States of America is dedicated to the policy of defending the basic rights of men all over the world and of restoring freedom wherever possible to those people who are now enslaved behind the Iron Curtain.

The Republican Party platform adopted at Chicago in July 1952 contained the following plank :

"We shall see to it that no treaty or agreement with other countries deprives our citizens of the rights granted them by the Federal Constitution."

We as the majority party have, therefore, pledged and obligated ourselves to protect and uphold the constitutional rights of the people of the United States. President-elect Eisenhower stated during his campaign for office that we must not rest until freedom is restored throughout the world, and his election by an overwhelming majority of the American voters is proof that this policy has the support of our whole Nation.

But in spite of all our efforts freedom is still denied to people in many parts of the world, and nowhere else does the individual citizen enjoy the rights and privileges that we do here in America. In the United States the individual citizen has an importance that no other government in the world recognizes to the same extent. And only in the United States are the rights and privileges of the individual protected by law and guaranteed within the Constitution itself.

The United States is the last fortress of freedom in the world today. And if we should permit any encroachment upon the basic liberties guaranteed to the American citizen by our Constitution, if we should lose freedom in the United States, then the torch of liberty would have burned out, and there would be no light of freedom ablaze anywhere in the world and no hope for humanity.

We have, therefore, a very sacred trust to defend liberty wherever we can in the world, and even more important, to preserve and protect it here in our own United States.

I have fully realized the paramount importance of preserving our civil rights under the Constitution and the Bill of Rights. I want to be sure that these rights will never be nullified so long as the Constitution itself shall stand as the foundation of our Government. And I have, therefore, introduced House Joint Resolution 57 proposing an amendment to the Constitution which reads as follows:

"Treaties made under the authority of the United States and international agreements entered into by the President or by any other officer or agency of the United States shall be void to the extent that they abridge, abrograte, nullify, subordinate, or interfere with any and all of the rights and freedoms guaranteed to citizens of the United States by the Constitution of the United States."

Ratification of this amendment to the Constitution would protect all of the rights of citizens of the United States guaranteed by the Constitution from nullification by any treaty or international agreement.

The first line of defense for the United States in the struggle in which we are now engaged, to meet the aggression of Soviet communism, is not only the military might of our weapons of destruction. Our first line of defense is the basic concept of freedom upon which our Nation was established, the protection of individual liberty which insures the personal freedom of every American as guaranteed under the Constitution.

Too many of us live under the false and erroneous belief that the Constitution is self-executing. This is the dangerous belief that our Communist enemies would like us to fall into.

Eternal vigilance is the price of liberty. This means that we must always be alert and alive to any attempts to abolish, abrogate, or interfere with the freedoms or liberties, rights, or privileges, guaranteed to us under the United States Constitution, whether these attempts originate inside or outside our Government. Do you, as a citizen vitally interested in these rights and privileges which you now enjoy and in any executive or legislative act which affects these rights and privileges, know that the terms of a treaty between the United States and any foreign nation "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"?

If you did not know this, let me inform you that I have just quoted to you from the contents of article VI, paragraph 2, of the Constitution of the United States.

It is important to realize just what this provision within the Constitution means to each of us as citizens of this Nation, and to know and understand to what extent our basic rights and freedoms can be imperiled through treaties which when ratified become the supreme law of our land.

Let me give you a few examples, based upon decisions of our American courts in cases involving treaties as the supreme law of our land.

It has been held by court decision that "without express authority from Congress, or authority otherwise clearly indicated, the courts are bound to recognize treaties as lawfully made and as the supreme law of the land.”

It has also been held that "courts have no right to annul or disregard provisions of a treaty upon any notion of equity, general convenience, or substantial justice."

Another decision established that "when once made a treaty is the supreme law of the land, which every court must effectuate and in respect of which no authority for variation or modification exists by any judicial tribunal."

And still another decision holds that "a treaty, assuming it to be made conformable to the Constitution in substance and form, has the effect of repealing all preceding Federal law in conflict with it, whether unwritten, as law of nations or admiralty and common law, or written as acts of Congress."

In two other decisions it was held that "as a treaty ratified by the United States, the charter of the United Nations is a part of the supreme law of the land. Balfour, Guthrie & Co., Ltd. v. United States (D. C. Cal., 1950, 90 F. Supp. 831)."

And that "a treaty lawfully entered into stands on the same footing of supremacy as do the Constitution and laws of the United States."

To further explain this point with regard to the supreme law of the land provision, the laws of Congress are not the supreme law of the land unless they shall be made in pursuance thereof-of the Constitution. But a treaty is the supreme law of the land when made under the authority of the United States; that is, when negotiated by the President or other authorized officer or agent of the United States, and approved by the Senate. Since the people are assumed to have expressed their national will through their duly elected officials in a treaty which is ratified, the will of a State respecting the subject must conform to the superior will.

The framers of the Constitution had a good and sufficient reason to make the terms of a treaty the supreme law of the land and consequently a matter of honor and responsibility to all citizens to uphold. They did not envision the United States would ever become involved in the many and complex treaties, compacts. and international agreements which we have become party to in recent years under the United Nations, some of which could threaten our civil rights and the freedom and liberty guaranteed by the United States Constitution and our Bill of Rights.

Too few of us realize the full importance of the "supreme law of the land" provision of the Constitution. Too few Americans realize that within this one short paragraph there exists a threat to their civil rights, to their individual liberty.

The amendment to the Constitution which I propose is simple in form, direct, and to the point. It has but one purpose alone to protect the rights and freedoms of the individual American citizen as guaranteed under the Constitution and the Bill of Rights from any abridgment, abrogation, nullification, subordination, or interference by any treaty in spite of the supreme-law-of-the-land para graph in the Constitution.

It will not in any way interfere with the present treatymaking procedure as established by the Constitution. It will not raise questions as to whether a treaty can be concluded because of doubts as to its validity when ratified. It will not prolong ratification of desirable treaties. It will not hamper the President or other properly authorized officers or agencies of the United States from concluding treaty agreements. It will not have any effect upon our participation and cooperation as a member of the United Nations.

It will assure that in all international agreements and treaties to which the United States is a party, whether within the United Nations or with individual nations, any provision which might be included which could be construed as nullifying any of our rights and freedoms as guaranteed under the Constitution would be null and void, and would, therefore, have no effect. All other parts of such a treaty or international agreement would be valid and would become as provided in our Constitution, rightfully binding as a legitimate contract between nations.

I am confident that every American citizen takes great pride in the United States Constitution, the fundamental basic law of this great Nation. I have seen thousands upon thousands of people come to the Congressional Library here in Washington and stand in silent reverence as they look upon the original handwritten document that guarantees our liberties and freedoms, of the press, of speech, of religion, of trial by jury, of the right to peaceable assembly and to

petition the Government for redress of grievances, and protect us against excessive bail or excessive fine or cruel or unusual punishment for crimes committed. I am also aware of the fact that too few American people realize that the United States Constitution must be protected or the liberties and freedoms we enjoy because of it may be lost.

Our Constitution is the best plan ever made to assure freedom and to release the creative powers of men. It guarantees all the freedoms. Its guarantees of life, liberty, and property made possible the American way of life. They stimulated more new enterprise and invention and gave us in this country a higher standard of living, better housing, more food, and greater freedom in our civil, religious, and personal lives than any other people in history have enjoyed.

I have proposed this amendment to the Constitution which will assure that these rights and freedoms shall continue to bring their blessings to the people of the United States and to the world.

WASHINGTON, D. C., March 30, 1953.

Hon. WILLIAM LANGER,

United States Senate.

MY DEAR SENATOR LANGER: It occurred to me that in the consideration by your committee of the bill making changes with regard to the matter of executive agreements, which are now so often used in place of treaties, it might be useful to say a word as to the attitude of the State Department in the matter during the years I was there, particularly under Hughes, Kellogg, and Stimson.

I entered the Department when Wilson was still President and therefore served under Lansing and Colby. But there is very little I can say about those days since I was learning myself and only held the position of Assistant Chief and later Chief of the Western European Division. I had very little to do at that time with treaties and of course during the whole time I was in the Department, ending with the inauguration of Roosevelt, I had only to consider legal matters, which were handled in the Solicitor's Office, from the political and sometimes economic point of view. What Lansing thought about such agreements I do not know but believe from what I knew of him that he would have taken a very legalistic point of view and would have realized that no attempt must be made to get around the Senate. Colby was all for hurrying things along and probably did not look into the question at all.

With the advent of Hughes, we had a great lawyer at the head of the Department. I worked very closely with him in getting the agreement with Germany, which seemed necessary inasmuch as it was obvious that the Senate would not consent to the ratification of the Versailles Treaty. The Secretary studied the matter with the utmost care, and when he had decided that the best thing to do was to come to an agreement with Germany which would enable us to carry on relations without any formal peace treaty, he fully understood that this agreement would go to the Senate for ratification. I remember his saying that in any important matters, especially affecting the future of this country, it was obvious that ratification must be made, that the people must be able to read the agreements in their final form as treaties. He had no desire to bypass the Senate. Nevertheless, as I remember, he felt that occasional executive agreements on comparatively minor matters might be a very useful thing, as saving time and thereby expediting the work of the Department of State. It would never have occurred to him to substitute executive agreements for treaties.

When Kellogg became Secretary he came to the Department from the Senate and felt strongly that no attempt should be made to bypass the Senate. I often discussed the matter with him as we walked down to the Department every morning, and know his ideas in the matter. He felt, with Mr. Hughes, that there might be many instances where a treaty was not necessary, but he would have leaned over backward to include the Senate and therefore the people of the United States in any agreement binding this country for a period of time. I do not remember any particular executive agreement made during his administration of the Department. His Pact on the Renunciation of War was of course submitted to the Senate for its consent to ratification. Kellogg always had as Under Secretary men who were lawyers, and everything that was done at the time was scrutinized carefully to be certain that there was no stretching of the laws which might conflict with the Constitution.

Stimson took a somewhat different attitude. He had less respect for the Congress than had either Mr. Hughes or Mr. Kellogg, but he knew that Hoover would

never agree to anything which infringed on the meaning of the Constitution and, so far as I remember, made no executive agreements covering a long period of time, although I have often heard him say that it was a nuisance to have to submit such agreements to the Senate.

In general, I may say that the Department of State, during the time I was there, recognized the necessity of executive agreements, in matters of comparative unimportance or in matters covering only an immediate issue, whereas it would not countenance the substitution of such agreements for treaties, which must be public property and must have the consent of the Senate to ratification. The Department recognized, I believe, that without this proviso there might be a real danger of proceeding according to what one individual believed to be right and ignoring the wishes of the people of the United States. In other words, we knew the great value of Senate consent to ratification. Under no circumstances would such agreements as those made at Yalta have been passed by the Department of State as valid documents in the conduct of foreign relations unless they had been phrased as treaties and received the assent of the Senate for ratification. Yours very truly,

WILLIAM R. CASTIE.

THE BRICKER RESOLUTION RESTRICTING CONDUCT OF UNITED STATES FOREIGN

RELATIONS

Statement of the Subcommittee on Juridical Institutions-The Catholic Ass0ciation for International Peace, Washington 5, D. C.

Certain amendments to the United States Constitution proposed by Senator Bricker (Senate Joint Resolution 1) seek to limit the treaty making power vested in the President and Senate and to limit the executive-agreement power of the President. The fundamental moral principle involved is that of public faith necessary to the conduct of all national and international relations. The proposed amendments would seriously undermine public faith in actions of the United States Government. Nothing is more necessary to the achievement of peaceful, fruitful relations among men and nations than good faith. Good faith among civilized nations means that pledges given or received can be trusted. The stated purposes of such amendments are primarily (1) to prevent the powers delegated by the United States Constitution to the Federal Government from being curtailed by or transferred to any international or supranational authority, (2) to prevent the powers reserved by that Constitution to the States from being similarly abrogated or modified and (3) to prevent “the fundamental civil or political rights of citizens of the United States" from being similarly affected.

The juridical institutions subcommittee feels that these limitations would make United States participation in any program of enforceable disarmament through international control of atomic weapons and other forms of atomic energy virtually impossible, inasmuch as any such program would of necessity call for some form of international supervision of all atomic energy and would therefore be prohibited by the terms of section 2 of the Bricker resolution.

We maintain not only that such amendments would seriously handicap the future development of the United Nations, but that they would prevent or hamper the development and codification of international law. If they had been in force earlier they would probably have made impossible the approval or ratification of many necessary and useful treaties or conventions already adopted.

Not only would they actually impair the sovereignty of the United States in its nation-to-nation dealings; they would imply acceptance of the false assumption that an individual state has no obligation to world society. Moral law requires that states establish and accept such international law as is necessary for the achievement of the international common good. Progress in the formulation of international law has been made primarily through international treaty. Even if the present treaty bases for international law are so attacked and crippled, no sound structure of international law and order can be developed.

Furthermore, such amendments would handicap the United States at a time when speedy action in the field of cooperative military action may be necessit to guarantee its safety and that of the free world in the face of threatened Communist aggression.

Section 2 of the Bricker resolution is so loosely and vaguely worded that it is bound to cause conflicting and confusing interpretations which might alter