favor of the Universal Declaration of Human Rights." (Treaties and Executive Agreements, hearings on S. J. Res. 130, p. 525.) COMMENT ON SECTION 3 Section 3 adopts the first portion of the American Bar Association's proposal which renders all treaties non-self-executing as internal law until Congress acts by appropriate legislation, but omits the further limitation that in so legislating Congress must legislate under its delegated powers in the absence of such treaty. While section 3 is helpful in that it renders all treaties non-self-executing until the Congress acts, it fails to limit the doctrine of Missouri v. Holland which was and is largely the basis for the need of a constitutional amendment and hence is the specific target of the further language of the American Bar Association's proposal that in legislating under treaties Congress must act within its delegated powers. The basic question here is whether the doctrine of Missouri v. Holland shall be limited or whether the treaty power shall be permitted under the development of the doctrine by the internationalists to embrace all sorts of matters intended by the Constitution to be within the retained jurisdiction of the States or of the people and not delegated to Congress. Without some such limiting words as suggested by the American Bar Association proposal, the constitutional balance between State and Federal power can be substantially upset under the doctrine of Missouri v. Holland, and Congress, by legislation, can take over vast areas heretofore reserved respectively to the States and to the people. It may be that the failure to include the American Bar Association's suggestion, which limits Congress to its delegated powers, may please a lot of people who are internationalist-minded and favor a strong Central Government at the expense of the States; but if section 3 passes in its present form the States will have to fight their battles. in Congress in the hope of preventing Congress by persuasion from invading domestic areas permitted to be invaded under the Constitution as now construed in Missouri v. Holland. From the point of view of protecting the retained rights of the States and of the people it would be preferable to have no such section 3 in the amendment at all, than to have a proviso that might actually be construed as enlarging the powers of Congress to legislate in connection with many matters now not delegated to the Federal Government. Senator BRICKER. At the present time the Senate and the President can do that. In our suggestion, we have further protected the States by giving that power only to the Congress of the United States. Mr. HOLMAN. But you are setting up an omnipotent legislative branch that can Senator BRICKER. You have got a legislative branch. Mr. HOLMAN. But not always with such gentlemen as you and Senator Langer and Senator Smith is there. We think very strongly that we should not, by constitutional amendment, turn from arbitrary Executive power to arbitrary Executive legislative power. That is the point. Senator BRICKER. Yes. Mr. HOLMAN. The language of section 3 of Senate Joint Resolution 1 as now drafted, might actually be construed as modifying or even negativing the present protective features of the 9th and 10th amendments. As set forth in my main Statement of Views, I believe the peace and law committee has now simplified and improved its own former draft covering the treaty implementation clause by merely having it state, "A treaty shall become effective as internal law in the United States only through legislation"-as pointed out this morning, we have left out "by the Congress"-"which would be valid in the absence of treaty." Comment on section 4: Section 4 relating to executive agreements carries out in different language the concept of the American Bar Association's proposal, namely, that all executive agreements are subject to the control of Congress and shall be made only in the manner and to the extent prescribed by law. The first sentence of section 4 is satisfactory but it does not recognize, as does the American Bar Association's proposal, that the power probably already exists to limit executive agreements by legislation. To recognize this probability may be of importance for purposes of the record in case the proposed amendment should be passed by Congress but fail to get the requisite approval by the States. In other words, the record should not be made to appear that Congress presently thinks it has no power to regulate executive agreements. The last sentence of section 4 reads "such agreement shall be subject to the limitations imposed on treaties, or the making of treaties by this article." The objective of the draftsmen is reasonably clear but the language does not seem to be entirely happy. The words "or the making of treaties" is surplusage. Again, as set forth in my main Statement of Views, I think the peace and law committee has now simplified and improved its own former draft covering executive agreements by merely having it state, "executive agreements shall be subject to regulation by the Congress and to the limitations imposed on treaties by this article." I do not see that section 4 of Senate Joint Resolution 1 is any substantial improvement over the American Bar Association's draft. However, it does embody the basic principle, namely, that executive agreements are subject to congressional control and cannot invade. American rights any further than a treaty can do under the new proposed limitations on the treaty powers. The overall objection to Senate Joint Resolution 1 is that it is too long to be readily grasped and understood by the people or even by State legislatures. Naturally, the important thing is to get a sound amendment but as simple an amendment as possible, but adequate as to both language and content to protect American rights. I believe the draft now proposed by the peace and law committee, as set forth in my main statement of views meets these requirements. In order to have it officially before this Committee at these hearings, it was introduced in the Senate last Monday as Senate Joint Resolution 43 and 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 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. The CHAIRMAN. You certainly have done a masterful job. Mr. HOLMAN. Thank you so much, Senator; that is very kind of you. Senator BRICKER. I want to say that all of these presentations have been most scholarly and most objectively given. The CHAIRMAN. Have you any questions, Senator Smith? The CHAIRMAN. Dr. Finch, do you plan to stay here overnight, or were you going home? Senator SMITH. He lives here. The CHAIRMAN. Do you have any objection to testifying tomorrow instead of tonight, or would you rather testify this afternoon? Senator SMITH. I think, Mr. Chairman, if I understood correctly, he was going to be the cleanup man after the others had testified in opposition. He lives in Washington and he can come any time you call him. The CHAIRMAN. You did not plan to testify today? Mr. SCHWEPPE. If I may speak, that is correct. On behalf of the committee on peace and law, we had the arrangement last year at the subcommittee hearing that inasmuch as the hearing was not closed but other memoranda came in and other speakers came later, that George Finch, because he lives in Washington, could attend the hearings and then be sort of a cleanup person for our position after hearing the other statements. It worked exceedingly well the last time and will give you a well rounded record by a person who is as well informed as George Finch is, one of the best informed men in the United States on that. The CHAIRMAN. There is certainly no objection to that. Senator SMITH. There might be this advantage too, that I was thinking about: When we get down to talking about language, Senator Bricker suggested there was no particular pride of authorship of the particular language, and Mr. Finch, by reason of his peculiar qualifications, could be of immense assistance to this committee in any consideration of rephrasing that the committee might think necessary or advisable. Mr. SMITHEY. Mr. Schweppe, as chairman of the committee I would like to address this to you: Do you think that you could, now that the American Bar group has concluded except for Dr. Finch, who is going to be the cleanup man, submit to the subcommittee a memorandum showing the effect of your amendment on some treaties which have been approved by the Senate in the past, and which it would have prevented and which it would have allowed? I think that would help a great deal and would complete the record. Mr. SCHWEPPE. We would be glad to do that. We expect to be here through Friday, and we are going to work with Senator Bricker on Friday going over the matter of text. We will carry out your request. Senator BRICKER. I have one request, and that is I want to call attention to the fact that there have been several articles in the American Bar Journal that have been most helpful to all of us by Mr. Holman and Mr. Finch, and Mr. Deutsch had one a couple of months ago, I believe. That was the last one. Mr. HOLMAN. May I make this inquiry: You have probably heard from us all that you care to hear, but we are going to the midyear meeting of the American Bar beginning Sunday and the house of delegates Monday and Tuesday, and if you are going to have hearings next Wednesday in which some of these prominent people like Mr. Davis are going to be present, Mr. Schweppe and I would be glad to fly back here and be present on Wednesday so that we might ask a question or something of that kind. Would that be helpful? The CHAIRMAN. We have not had word from Mr. Davis. We sent him a telegram this afternoon to find when he would be available. As you know, he is quite an elderly man, and we want to make it at a time most convenient to Mr. Davis. Mr. Smithey, suppose you keep track of where Mr. Holman is going to be, and wire him as soon as we have notification from Mr. Davis. Mr. HOLMAN. Thank you. The CHAIRMAN. Would you also like to be here when the Secretary is here? Mr. HOLMAN. We would very much. I think the best lay study that has been made of this whole matter appeared in the Christian Science Monitor. If I might say so, the Monitor was, in the beginning, about a year ago, not too favorable to giving much publicity to this matter, but they got out this study, and it shows the pros and cons, and the simple language is very excellent, and I would like to introduce it for the record. The CHAIRMAN. Very well. (The article referred to follows:) [From the Christian Science Monitor, Boston, January 26, 1953] Is there a Trojan horse in American constitutional law by which By Neal Stanford, Staff Correspondent of the Christian Science Monitor Do the American Constitution's treatymaking clauses need to be revised? This question of amending the Constitution can well become one of the most heated and controversial issues of the coming months. Why? Because there are many citizens throughout the country, and many Congressmen in Washington, who feel that the Nation's sovereignty can be undermined or even destroyed by treaty or executive agreement. These same persons and groups believe that a definite prohibition must be put on the use of international treaties or agreements that may invade the field of domestic legislation. Belief that a treaty might give the Federal Government power it does not have under the Constitution or that something might be done by treaty affecting individual rights that could not be done by Congress, stems from legal history. Two cases are of particular interest in tracing the emergence of this problem: A migratory-birds case of more than a quarter of a century ago; the recent Fujii case, involving California's alien-land law. In the migratory-birds case, a 1913 statute for protecting migratory birds was held unconstitutional in two lower-court decisions. But in 1916 the United States concluded a convention on the subject with Canada. To carry out the commitments of the convention, Congress 2 years later enacted legislation substantially the same as that enacted in 1913 and held unconstitutional, and the Supreme Court in 1920 sustained the new law. FUJII CASE CITED It is argued from this case that Congress may derive from a treaty, powers it does not possess under the Constitution-thus letting a treaty authorize what the Constitution forbids. On the other hand, it is argued, as did Justice Oliver Wendell Holmes of the Supreme Court, that "there may be matters of the sharpest exigency for the national well-being that an act of Congress could not deal with, but that a treaty followed by such an act could; and it is not lightly to be assumed that, in matters requiring national action, a power which must belong to and somewhere reside in every civilized government is not to be found." The Fujii case involved a Japanese alien, Sei Fujii, who bought a piece of property in California in 1948, contrary to California's alien land law. When the purchase was voided, Mr. Fujii filed suit questioning the constitutionality of the statute. He lost his case in the Superior Court of Los Angeles County, but won it in the district court of appeals-not on the point that the statute ran afoul of the equal-protection clause of the 14th amendment, but that the land law contravened the human-rights provisions of the Charter of the United Nations. REASON REVERSED The case was then carried to the Supreme Court of California, which last spring upheld the court of appeals ruling, but reversed the reason for that ruling. Whereas the lower court had not questioned the constitutionality of the alien land law, but ruled for Mr. Fujii because of the U. N. Charter provisions, the high court ruled 4 to 3 that the land law was unconstitutional, but threw out unanimously the contention that the U. N. Charter provisions superseded domestic legislation. But the court did hold that "the Charter represents a moral commitment of foremost importance and we (the court) must not permit the spirit of our pledge to be compromised or disparaged in either our domestic or foreign affairs." This type of thinking is called by proponents of an amendment "a danger signal," evidence that treaties affect judicial thinking. This case has caused those pressing for a tightening of the treaty-making machinery to redouble their effort to get a limiting constitutional amendment approved. LEGISLATIVE REVIEW They recognize that the Supreme Court of California made it clear that it did not hold that the U. N. Charter was a self-executing document. But they are disturbed that a lower court did, and that there are those on the bench who would, if properly placed, reverse such a ruling. They, therefore, demand that this troublesome question be resolved by a constitutional amendment making treaties automatically non-self-executing-that is, subject to thorough legislative review and approval by both Houses of Congress. Those ardent advocates of an amendment to keep treaties from invading the field of domestic legislation point more recently to the steel seizure case. There, Chief Justice Fred M. Vinson, dissenting (and supported by two other justices) argued that the U. N. Charter and the North Atlantic Treaty justified the President's action. These treaties, with their goals of suppression of aggression, were advanced as reason for giving the President the power to seize private property, though lacking statutory authority for such action. Had two additional judges accepted the view of the Chief Justice of the United States, the seizure of the steel mills would have been approved. DANGER TO SECURITY This question of the need for a constitutional amendment, redefining and tightening the treatymaking provisions of the Constitution is not just academic. Advocates of the amendment insist that the danger to the country's security and to the individual's rights is real and present. Some of the 59 Senators who sponsored the so-called Bricker amendment, as they made clear in testimony, were more interested in getting a full public and congressional debate going on the subject than in backing any particular proposal. They wanted facts, light, and then action. And so, it can be assumed, do the American people-though in what direction is not yet clear. A vigorous debate on this question is already under way, with three separate proposals before the lawmakers in Washington. |