diction nor can it be enlarged under the treaty-making power." This case is sometimes referred to as having invalidated a treaty on the foregoing ground but the decision is explainable on other grounds and its reasoning on the treaty-making power is in any event in conflict with Missouri v. Holland as will later appear. In Doe v. Braden (16 How. 635 (U. Š., 1853)), the Court indicated that the Constitution was superior to a treaty: The treaty is therefore a law made by the proper authority, and the courts of justice have no right to annul or disregard any of its provisions, unless they violate the Constitution of the United States. * In Hauenstein v. Lynham (10 Otto 483 (U. S., 1880)), although the Court held a Virginia statute regarding escheat of alien property had been nullified by an American-Swiss treaty, it suggested that there were limitations upon the treaty-making power by saying that: ** There are doubtless limitations of this power as there are of all others arising under such instruments; but this is not the proper occasion to consider the subject * Following the Hauenstein case and in support of a doctrine of limitations came DeGeofroy v. Riggs (133 U. S. 258 (1890)). In this case the court clearly indicated that the treaty-making power was not to be treated as unlimited. In two earlier cases, Whitney v. Robertson (124 U. S. 190 (1888)) and Botiller v. Dominguez (130 U. S. 238 (1889)), an important limitation was indicated, to-wit: that a treaty may be abrogated by the enactment of a subsequent Federal statute clearly inconsistent therewith. Such a limitation would, of course, have the salutary effect of preserving in the people, through their elected Representatives in Congress, the ultimate power of preventing the President, with the consent of the Senate, from making domestic law on a particular subject, or supplementing or amending the Constitution of the United States without the consent of the people. But the sanity and safety of the developing judicial doctrine of the earlier decisions regarding proper limitations upon the treaty-making power was more or less swept away by the broad language of Mr. Justice Holmes in Missouri v. Holland (252 U. S. 416 (1920)). In this case Mr. Justice Holmes held that whereas congressional enactments to be the supreme law of the land must be made in pursuance of the Constitution, a treaty is the supreme law of the land if made only under the authority of the United States, which merely means the President and two-thirds of the Senate present and voting. Under the Holmes concept a treaty, unlike a Federal statute, will be valid and be the supreme law of the land even though not made "in pursuance of the Constitution." The language of article VI requiring a treaty merely to be made under the authority of the United States, rather than in pursuance of the Constitution, thus resulted in the Supreme Court holding that under a treaty Congress may exercise legislative powers which it would not have under the Constitution in the absence of the treaty and that Congress may pass any legislation under a treaty that it deems “necessary and proper" (Constitution, art. I, sec. 8) regardless of what may be the constitutional limitations on the Congress apart from the treaty. Therefore, the logical result of Missouri v. Holland is that a treaty may both enlarge and change the Constitution itself and sweep away State constitutions and State laws in the process. Chief Justice Charles E. Hughes almost prophetically recognized the constitutional predicament the people of America now face when on April 26, 1929, speaking before the American Society of International Law he said: If we take the Constitution to mean what it says, it gives in terms to the United States the power to make treaties, it is a power that has no explicit limitation attached to it, and so far there has been no disposition to find in anything relating to the external concerns of the Nation a limitation to be implied. Now there is, however, a new line of activity which has not been very noticeable in this country, but which may be in the future, and this may give rise to new questions as to the extent of the treaty-making power. I have been careful in what I have said to refer to the external concerns of the Nation. I should not care to voice any opinion as to an implied limitation on the treaty-making power. The Supreme Court has expressed a doubt whether there could be any such. That is, the doubt has been expressed in one of its opinions. (Meaning, Missouri v. Holland.) But if there is a limitation to be implied, I should say it might be found in the nature of the treaty-making power. What is the power to make a treaty? What is the object of the power? The normal scope of the power can be found in the appropriate object of the power. The power is to deal with foreign nations with regard to matters of international concern. It is not a power intended to be exercised, it may be assumed, with respect to matters that have no relation to international concerns. But if we attempted to use the treaty making power to deal with matters which did not pertain to our external relations but to control matters which normally and appropriately were within the local jurisdictions of the States, then I again say there might be ground for implying a limitation upon the treatymaking power that it is intended for the purpose of having treaties made relating to foreign affairs and not to make laws for the people of the United States in their internal concerns through the exercise of the asserted treatymaking power. But this is exactly what is now being attempted by the modern “internationalists" in the United Nations-to use treaties to make domestic law-and they propose through the doctrine of Missouri against Holland "to make laws for the people of the United States in their internal concerns," for as the State Department has officially said: "There is no longer any real difference between 'domestic' and 'foreign' affairs." (State Department publication 3972, foreign affairs policy series 26, released September 1950.) Mr. John Foster Dulles at the regional meeting of the American Bar Association at Louisville April 12, 1952, stated the danger we face as to "treaty law" as follows: Treaty law can override the Constitution, and treaties can cut across the rights given the people by the Constitution and Bill of Rights. Because of this grave threat to constitutional government in this country and in order to set at rest this matter of risking what the Supreme Court may do under the new concept of "treaty law," the American Bar Association, after several years of consideration and after full debate in its house of delegates, concluded that a constitutional amendment is necessary to preserve American rights and the American form of government against the dangers of treaties and executive agreements. The form of amendment which the members of the American Bar Association committee on peace and law believe appropriate and adequate has been set forth in my preliminary statement, and is again set forth for convenience: 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 which would 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. As to the form of amendment, I would like to make a little statement about that. Any draft of a constitutional amendment to protect American rights (State and individual) against the dangers of "treaty law" and executive agreements should embody the following purposes and objectives: 1. Remove any possible doubt that a treaty or executive agreement to be valid as domestic law must be consistent with the Constitution and not in conflict with it. Give unequivocal constitutional effect to judicial dicta not yet incorporated in binding decisions, to the effect that Congress cannot, by legislation, enlarge the Federal jurisdiction, nor can it be enlarged under the treatymaking power," and that no provision of a treaty which violates the Constitution or which is inconsistent with the nature of the Government of the United States or of the relation between the States and the United States, shall be valid. New Orleans v. United States (10 Pet. 662, 736); The Cherokee Tobacco (11 Wall. 616, 620–1); Holden v. Joy (17 Wall. 211, 243); DeGeofroy v. Riggs (133 U. S. 258, 267); and see Asakura v. Seattle (265 U. S. 332, 341). Any inferences drawn by some persons from Missouri v. Holland (252 U. S. 416), and U. S. v. Curtiss-Wright Corporation (299 U. S. 304, 316-319), that the treaty power is unlimited in any field, regardless of the Constitution, should be unqualifiedly negatived by such amendment, and any doubt on this score be forever set at rest. See also United States v. Pink (315 U. S. 203, 233–4). 2. The amendment should prevent a treaty or executive agreement from becoming internal law in the United States by force of its selfexecuting terms. The amendment should make all treaties non-selfexecuting so far as domestic law is concerned until implementing legislation has been passed. The amendment should remove the doubt as to whether a treaty is self-executing or non-self-executing from the realm of judicial speculation and make the internal effectiveness of the treaty within the United States depend exclusively on implementing legislation. As has already been pointed out in this connection, in almost every important country of the world except the United States, each country is free to decide when and to what extent it wishes to implement a treaty by the passage of legislation even though such signatory State has agreed generally to enact such legislation. (Report, peace and law committee, September 1950, pp. 9 to 12.) The United States is the only important country that faces the peculiar legal situation, except possibly France and Mexico-that is sometimes used against us, if I may say so, but France is not a federal republic like we are. France has no bill of rights like we have, and neither has Mexico. So I merely point that out. As I say, upon examination, they are not true exceptions, but when a treaty is ratified by our constitutional process by the President with the consent of the Senate, its provisions automatically becomes a part of the supreme law of the land. Hence, in the United States when an international agreement like the United Nations Charter, or the genocide convention or the covenant on human rights, is ratified as a treaty, it may supersede every city ordinance, every county ordinance, every State law, every State constitution, and every Federal statute on the same subject and under the logical result of the Holmes doctrine in Missouri against Holland, it may enlarge and amend the Constitution of the United States. 3. The amendment should limit the language of the decision of Missouri against Holland, supra, by making it clear that in legislating in respect of treaties, Congress shall have no power which it does not already have under the Constitution, apart from its power to carry treaties into effect under the "necessary and proper clause" of the Constitution art. I, sec. 8). The amendment should take care of the broad language in U. S. v. Curtiss-Wright Corporation, supra (299 U. S. 304), where the language of the Court espouses the theory of unrestricted inherent Federal power in the field of international relations. 4. The amendment should make it inescapably clear that the limitations on Congress in the first amendment that "Congress shall make no law" cannot be escaped by use of the treatymaking power or by executive agreement under the claim that the President and Senate are a separate agency for treatymaking and are not subject to constitutional limitations on Congress. (See report of committee on peace and law, September 1, 1950, pp. 40-41.) Some critics say that any amendment accomplishing the foregoing purposes and objectives would prevent the proper exercise of the treatymaking power in the international field-that such an amendment would abridge the power of the United States to make treaties of commerce, of navigation and of friendship and the power to make many other traditional types of treaties. This argument is fully disposed of in the February 1952 report of the committee on peace and law, pages 14 to 17, inclusive, and the matter has been dealt with at greater length in an article appearing in the June 1952 issue of the American Bar Association Journal by Dr. George A. Finch, an eminent authority on treaties and the editor of the American Journal of International Law. Several different drafts of amendments have been proposed but for simplicity and directness of language I believe this text now recommended by the American Bar Association's committee on peace and law best meets the objective of protecting American rights and the American form of government. An increasing number of lay organizations have approved the proposal for such a constitutional amendment. These now include such organizations as the American Legion, the Veterans of Foreign Wars, the Marine Corps League of America, service clubs, and many other organizations. And I would like to introduce the list because it is rather formidable. I would like to now introduce a list of organizations that officially support the constitutional amendment. The CHAIRMAN. Very well. (The list referred to is as follows:) ASSOCIATIONS AND ORGANIZATIONS OFFICIALLY SUPPORTING THE PROPOSAL FOR A CONSTITUTIONAL AMENDMENT ON TREATIES AND EXECUTIVE AGREEMENTS The American Bar Association: The following State Bar associations have officially adopted resolutions favoring a constitutional amendment on treaty law: Arizona, Arkansas, Colorado, Florida, Indiana, Iowa, Louisiana, Mississippi, Montana, North Dakota, Pennsylvania, South Dakota, Tennessee, Texas, Washington National Association of Attorneys General-This is highly significant because this association represents the chiefs of the legal departments of each of the 48 States The following State legislatures have passed resolutions favoring a constitutional amendment on treaty law: California, Colorado, Georgia, Wyoming. American Legion American Legion Department of California Veterans of Foreign Wars of the United States The Catholic War Veterans (Post No. 975) Marine Corps League Kiwanis International American Farm Bureau Federation California Farm Bureau Federation Pennsylvania State Grange National Society of the Sons of the American Revolution National Society of the Daughters of the American Revolution National Association of Pro America American Council of Christian Churches National Society for Constitutional Security Minnesota Federation of Business and Professional Women's Clubs, Inc National Economic Council, Inc. American Flag Committee Constitutional Foundation, Inc. Women's National Patriotic Conference on National Defense, representing the following women's organizations throughout the United States: American Gold Star Sisters, Inc. American War Mothers American Women's Legion of World Wars Auxiliary to Sons of Union Veterans of the Civil War Blue Star Mothers of America Dames of the Loyal Legion of the United States of America Guardians of Our American Heritage Ladies of the Grand Army of the Republic Marine Corps League Auxiliary National Society for Constitutional Security National Society, Daughters of the Revolution National Society, Daughters of the Union 1861-1865, Inc. National Society of New England Women National Society, Patriotic Women of America, Inc. National Society, Service Star Legion, Inc. National Society, Women Descendants of the Ancient and Honorable National Woman's Relief Corps Auxiliary to the Grand Army of the National Yeoman F Navy Club, U. S. A. Auxiliary Navy Mothers Club of America New York City Colony, National Society of New England Women Society of Sponsors of the U. S. Navy The National Gold Star Mothers, Inc. The Wheel of Progress United States Army Mothers Women of the Army and Navy Legion of Valor of the U. S. A. Many other merely local organizations throughout the United States have also endorsed the proposal for a constitutional amendment. THE CHAMBER OF COMMERCE OF THE UNITED STATES Though it has not passed a formal resolution for a constitutional amendment, the Chamber of Commerce of the United States first through a special committee appointed to study the subject, then through its standing committee on policy, then by its whole body of delegates at its annual meeting in April of last year in simple and easily understandable language adopted the following policy with respect to the processes of making international agreements and with respect to the effect on domestic law of such agreements: A. No provision of a treaty or of an executive agreement that alters or abridges the Constitution of the United States shall become effective unless such alteration or change is embodied in a constitutional amendment adopted and ratified in the manner provided in that Constitution for its amendment. |