It is believed that the State Department, as well as the Senate, will be greatly aided in the avoidance of inadvertences or doubtful provisions and in obviating the necessity of trying to solve in advance difficult questions of the self-executing character of treaty clauses, or the difficulty of obtaining satisfactory FederalState clauses in treaties, if the proposed provision is adopted making all treaties non-self-executing until Congress acts by separate implementing legislation.

The argument that our situation is different because ours is a Federal state is untenable. The Judicial Committee of the Privy Council in 1937 disposed of this contention in Canada v. Ontario“ by holding that when a treaty deals with provincial classes of subjects, they must be dealt with by the totality of powers, Dominion, and Provincial Legislatures together; in other words, by cooperation between the Dominion and the several provinces. While two or three Canadian lawyers have expresed regret over the effort necessary to procure such cooperation, this is not a sound argument in support of having the Central Government override State laws in areas reserved to the Canadian Provinces, or in the United States reserved to the several States.

It is also earnestly claimed by critics of the American Bar Association's proposal that the Senate of the United States is a sufficient guardian of American rights without any constitutional amendment. This, for instance, is the position of the Association of the Bar of the City of New York," which, in deeming an amendment unnecessary, stands alone among the numerous bar associations that so far have considered the matter. These New York lawyers approve the principle that a treaty should not amend or abridge the Constitution of the United States, but they are unwilling to incorporate this safeguard into a constitutional amendment. They approve the idea that a treaty should not generally make domestic law for the people of the United States; and if a treaty does so, that then Congress may pass an act nullifying or superseding such a treaty; but they are unwilling to give the American people the safeguard, in the first instance, of having a provision in the Constitution that will protect American rights against such treaties, and make it unnecessary to engage in the dangerous practice of repudiating them. In other words, the report of the Association of the Bar of the City of New York advocates that the American people make the oft-repeated mistake of waiting until the horse is stolen before taking any steps "to lock the barn." One might as well say that we must first let an evil happen before we correct it, or that we should first have war before we prepare for it. The founding fathers who insisted on the Bill of Rights as a condition of ratifying the Constitution were preventing not those things that had happened, but those that might happen under the new Constitution. Who is so bold as to say that their foresight was an unwise restraint on government?

The fact that some 60 Senators themselves proposed consideration of a constitutional amendment affecting the Senate's powers in the treaty field, goes far toward meeting the argument that the Senate is a completely satisfacory control. By way of example, on January 29, 1952, the Senate advised and consented to the protocol for the admission of Greece and Turkey to the North Atlantic Treaty with only six Senators on the floor. True, the protocol was later recalled and discussed at length on February 6 and favorable action again taken on February 7 with a quorum present, but the episode considerably weakens the contention made."

Attention has been called above to the Warsaw Convention" with its hopelessly inadequate "fine print" limitation of liability in the case of aircraft disasters, which manifestly escaped the attention of members of the Senate.

Under international law it is not necessary that treaties, to be enforceable as international agreements, be effective as internal law. International law is not concerned with the domestic effect of treaties. Mr. Justice Curtis said a century

ago:

"If the people of the United States were to repeal so much of their Constitution as makes treaties their municipal law, no foreign sovereign with whom a treaty

Law Reports, Appeal Cases (1937), pp. 326, 348 353-354.

4 See footnote 34. It will be noted, too, that the report of the Association of the Bar was written prior to Chief Justice Vinson's dissent in the Steel Seizure cases.

The Washington Star for June 14, 1952 reported that two consular conventions and a trests prsteel were approved with two Senators present. Says the Star: "Senstor Spokmar Democrat of Alabama, presided over a two-member Senate last night, call d the two mencal or conventions and a treaty protocol, et the only vote for them, and ruled that they b ́d bet attrived by a two thirds vote. The only other member in the Senate ober was Senter Thie, R pub lean, of Minnesota, who watched the proceedings with ag but did not vote. He told the reporters later, 'I did not object.'"

* See footnote 17.

exists could justly complain, for it is not a matter with which he has any concern.” “.

It is asserted that the proposed amendment would limit the Congress in implementing treaties to its delegated powers in the absence of such treaties, and that this would unreasonably limit the Federal Government in the international field. It has already been ably pointed out that by virtue of its power to regulate foreign commerce, to define and punish offenses against the law of nations, to declare war, etc., the Congress now has delegated power to legislate with respect to all the important subjects in the treaty field."

AMENDMENT WOULD NOT UNDULY LIMIT TREATY POWER

It will be noted particularly that the American Bar Association proposal does not prevent the President and Senate from making a treaty on any subject whatsoever; but it prevents the treaty from becoming effective as internal law in the United States except to the extent that Congress legislates within its delegated powers in the absence of such treaty. It may be that limiting Congress to implementing treaties within the field of its delegated powers, will exclude some areas in which treaties now automatically become internal law under the "supreme law clause"; but this will merely require, as pointed out by the Privy Council in Canada v. Ontario, supra, that in the case of the United States, in order to become internal law, they must be dealt with by cooperation between Congress and the State legislatures.

The proposed amendment is not intended to prevent the proper exercise of the treaty-making power; and it has been heretofore demonstrated that Congress already has delegated power to enact legislation to make effective as internal law in the United States treaties on the important subjects of external relations with respect to which the Federal Government is vested with power to act. If the proposed amendment is adopted, the Congress, and not the treaty-making power, will determine whether the terms of the proposed treaty should be binding on the States without their consent in areas in which Congress had delegated power in the absence of any treaty. In other words, it will be impossible to enlarge the congressional power through mere ratification of the treaty, or to reduce State power by the mere ratification of the treaty. The balance between State and Federal power would then be subject to change only by the regular process of constitutional amendment, or such changes as may come about by judicial interpretation of the line between Federal and State powers.

If the proposed amendment should pass, acts of Congress initially unconstitutional would not be rendered constitutional when reenacted pursuant to a subsequent treaty; in other words, Missouri v. Holland would not be repeated. And a land law originally constitutional under both the Federal and State supreme charters would not be rendered unconstitutional by the United Nations Charter; in other words, Fujii v. California in the lower appellate court, and the recent Idaho case would not be duplicated.

As the Constitution is now construed, whatever may be the impact of treaties on the Federal Bill of Rights, it cannot be contended that treaties will not override our State bills of rights, by which we also set great store. Americans, it is submitted, will never be satisfied with the suggestion sometimes made of the remoteness of the possibility of ratification of a treaty abridging liberties safeguarded under these bills of rights.

Supporters of the association's amendment have been challenged to point to any ratified treaty raising the questions that show the need for a constitutional limitation on the treaty-making power. The only treaty which has actually been ratified is the United Nations Charter itself, which has undoubtedly under Missouri v. Holland, already conferred on Congress the unlimited power to implement by legislation treaties on all matters, including individual rights, covered by that instrument.

One group which objects strenuously to a constitutional amendment to limit the treaty-making power has strongly advocated for opening and signature, and ratification by the United States, of the Convention on Gathering and International Transmission of News and Right of Correction, which it will be recalled, recognized peacetime censorship and many other restrictions in conflict with American concepts."

Taylor v. Morton ((1855) 2 Curtis 454); affirmed by Supreme Court, 2 Black 481; see also Finch, supra, footnote 23, at pp. 468-469. 48 Finch, footnote 23.

Report of Committee on Peace and Law, February 1, 1952 (third printing, May 1, 1952), pp. 22 to 25.

While the proposed covenant on human rights has not yet been completed by the United Nations, representatives of the United States are zealously at work to bring about its early completion and adoption. All drafts of that covenant so far presented contain so-called guaranties of freedom of speech and press and of peaceable assembly and association subject to such restrictions as are "prescribed by law" or necessary to protect "public safety, order, health, and morals," and subject to a declaration of emergency officially proclaimed by the authorities, in which case a State may take measures derogating from its obligations with respect to those freedoms. Some of these same objectors to limitation of the treatymaking power, so far as internal law is concerned, who insist that no treaties endangering the constitutional rights of Americans have ever been ratified, are themselves striving to effect ratification of the foregoing treaties containing generous provisions. It is these recent activities which brought into being the American Bar Association's proposed constitutional amendment.

AMENDMENT GIVES STATES NEEDED PROTECTION

The text of the proposed amendment was drawn to bring into sharp focus the whole problem of continuing the balance between State and Federal power, in the light of the existing treaty power as now construed. The proposal as drawn gives the States protections they do not now have. It brings about certainty as to internal effectiveness of treaties within the States that does not now exist.

Let those American proponents of new treaties in the social, economic, cultural, and political and civil fields, who feel that the United States must take leadership in these crusades, first assist in obtaining a constitutional amendment at home to assure American citizens that there will never be an impairment of their fundamental rights in the process. "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." 50

Mr. DEUTSCH. On January 27, less than a month ago, the TimesPicayune of New Orleans published a cartoon on this subject which has met with wide acclaim, speaking of an important law review with the United States Constitution, the Bill of Rights, and treaties marching along in review by the public, by justice, by Congress, by the United States as a whole, and by the judiciary, and under, shall I say, the resolution adopted by the committee whose members have appeared before you today and who were then meeting in the city of New Orleans.

The CHAIRMAN. Let the record show it is filed with the committee. Mr. DEUTSCH. I ask that that be filed in connection with the statement I have made and also an editorial appearing in the January 12 issue of the Times-Picayune.

(The editorial referred to follows:)

[From the Times-Picayune, January 12, 1953]

BILL OF RIGHTS INSURANCE

Senator Bricker has reintroduced into the new Congress his constitutional amendment resolution to invalidate any treaty that would contradict the Bill of Rights or subject an American citizen to trial or suit in an international court. The resolution bears the signatures of 60 Senators, or only 6 less than necessary to approve the amendment proposition in the Senate and send it on to the House. The Truman administration, through the State Department, opposed the Bricker amendment in the last Congress, asserting that the danger of the abrogation of any American right was remote and that adoption might handicap United Nations peace efforts.

But there has been no denial that as long as treaties have equal status with the Constitution as supreme law, the constitutional rights of the people can be abridged in the process of making and applying treaties. It has been pretty

Mr Justice Sutherland, dissenting in Associated Press v. N. L. R. B. (301 U. S. 103, 141 (1937)).

clearly established that Congress can pass laws pursuant to a treaty that would not be valid under the Constitution. The rights reserved by the Constitution to the States or the people can be invaded and destroyed by international arrangements put in the form of a treaty and ratified by the Senate. The thinking of some of the internationalists has been that Congress would be obligated to pass laws to implement some of the codes, conventions, and arrangements devised by the eager U. N. affiliates, regardless of any constitutional considerations. Senator Bricker's resolution seems to be more involved and more diplomatically worded than the resolution proposed by the American Bar Association a couple of years back. The ABA would simply declare that any treaty whose provisions were in conflict with the Constitution was invalid and that Congress could not pass any law pursuant to a treaty that it could not have passed independent of the treaty.

Congress, of course, will wish to get the views of the Eisenhower administra tion before it goes ahead with the amendment proposal in either form. Nevertheless it should move on to a decision. Mr. Acheson's department might be right in saying that the danger of having any right overturned is "remote." But since the mouthpieces of some of the international groups are so fond of the notion that Congress can use treaties instead of the Constitution for its authority to pass laws, many American citizens will not feel safe until that concept is squelched by something no less formidable than constitutional amendment. The CHAIRMAN. Mr. Smithey?

Mr. SMITHEY. Mr. Deutsch, you may remember that there was considerable discussion by the Acting Secretary of State at the hearings conducted on Senate Joint Resolution 130 as to whether it would have been possible for the United States to give effect to a treaty like the Narcotics Convention if the bar proposal had been adopted. What is the position of the peace and law committee on that?

Mr. DEUTSCH. I can speak only for myself, of course, in the absence of joint study by the committee, but there is not any question in my mind that that Convention could well be adopted. It falls within the commerce power. Under our proposed amendment, you would have to have implementing legislation, in any event, by Congress. there is not the slightest question in my mind that such questions, narcotics, white-slave traffic, and so on, are within the Federal domain, and that no real question would arise on that subject.

And

Mr. SMITHEY. How about the growing of poppies without a license? Is that a State function?

Mr. DEUTSCH. I think that will fall within the narcotics question, but, mind you, there is nothing that the members even of this great committee can write that will not come up for ultimate judicial discussion and determination with differences of opinion and dissenting views. Even the members of our committee do not agree on everything.

The CHAIRMAN. Mr. Holman, do you want to make a statement for the committee?

Mr. HOLMAN. Yes.

The CHAIRMAN. Very well, you may proceed.

STATEMENT OF FRANK E. HOLMAN, SEATTLE, WASH., PAST PRESIDENT, AMERICAN BAR ASSOCIATION

Mr. HOLMAN. Mr. Chairman, I first want to express my appreciation for the opportunity of coming and presenting, perhaps I should say, my views on this great question. I want to also express my very deep appreciation and gratitude to Senator Bricker for the time over the last several years that he has, in his busy routine, accorded me

by way of an opportunity of discussing with him the remedy by way of a constitutional amendment to correct what we think in the American Bar Association is one of the greatest constitutional crises that this country has ever faced. And even though the hour is somewhat late and you have been very patient, sir, but because this is now going to be the record in the matter, which, as I understand, will be submitted to the present Secretary of State for scrutiny and comment, and will be submitted also, perhaps, to the present Attorney General and to others, I am going to make rather a full statement of my views. In the first place, by way of introducing myself, my name is Frank E. Holman, age 67, a lawyer from Seattle, having practiced law a little over 40 years. I have a biographical sketch that I will submit. for the record.

(The information referred to is as follows:)

BIOGRAPHICAL SKETCH OF FRANK E. HOLMAN

PERSONAL DATA

Born Sandy City, Utah, January 7, 1886 ; A. B., University of Utah, 1908; Rhodes scholar, Oxford, England, 1908; B. A. in Jurisprudence, Oxford, 1910; M. A., Oxford, 1914; admitted Washington bar, 1911; admitted Utah bar, 1912; instructor in law, University of Utah, 1912-13; dean, Utah Law School, 1913-15; chairman, Utah State Board of Bar Examiners; vice president, Utah State bar, 1923; practiced at Salt Lake City, 1915-24; practiced at Seattle, 1924 to date; admitted to practice, United States Supreme Court, 1921; admitted to practice in various Western States and Federal courts; senior partner, Holman, Mickelwait, Marion. Prince & Black, Seattle; president, Seattle Bar Association, 1941; president, Washington State Bar Association, 1945; chairman, committee for revision of Washington corporation laws; member, American Bar Association; member, house of delegates, continuously since 1942; member, special committee for the organization of the nations for peace and law, 1944 and 1945; member, special committee for peace and law through United Nations, 1946 and 1947; member, membership committee, 1943 and 1944; member, committee on jurisprudence and judicial reform, 1943; member, Washington committee associated with the American Bar Association committee on improving the administration of justice; Coconvenor, Seattle Regional Conference on World Court, 1946; coconvenor, proposed Seattle regional conference on progressive development of international law, 1947; member, committee on credentials and admissions of the house of delegates, 1946-47; member, board of directors, American Bar Association endowment; member, advisory board of the American Bar Association Journal; member, committee on assistance to lawyers in devastated countries, 194951; member, committee on scope and correlation of work, 1950-53; president of the American Bar Association, 1948-49; ex-officio member, American Bar Association board of governors, 1949-50; chairman, alien enemy hearing board for the western district of Washington: member, national panel of alien enemy examiners; member, Seattle Armed Forces Advisory Committee; member and vice president, board of national directors of American Rhodes scholars; life member of the Oxford Union; trustee, School of Public Law (Washington, D. C.) ; member, American Society of International Law; member, board of directors of the Pacific National Bank of Seattle; member, advisory board of Seattle Children's Orthopedic Hospital; honorary member, the Order of the Coif; honorary member, Phi Delta Phi (Ballinger Inn and Tillman D. Johnson Inn), international legal fraternity: honorary member, District of Columbia Bar Association; honorary member, Canadian Bar Association; member, Monday Club, Seattle; member, Rainier Club, Seattle (president, 1950-51); Veterans of Foreign Wars certificate of merit "for outstanding contributions toward preservation of our American way of life." December 20, 1950; Cross of Chevalier of the Legion of Honor (France), January 1951; Marine Corps League meritorious service award in appreciation and gratitude for distinguished service in the interests of the United States of America, the United States Marine Corps and the Marine Corps League, September 21, 1951; American freedom award, 1952.