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TREATIES AND EXECUTIVE AGREEMENTS

WEDNESDAY, FEBRUARY 18, 1953

UNITED STATES SENATE,

SUBCOMMITTEE OF THE COMMITTEE ON THE JUDICIARY,

Washington, D. C. The subcommittee met, pursuant to call, at 10 a. m. in room 424, Senate Office Building, Hon. William Langer, chairman of the committee, presiding.

Present: Senators Langer, Dirksen, and Butler of Maryland. Also present: Senators Watkins, Hendrickson, Bricker, Johnston, and Smith of North Carolina.

Wayne H. Smithey, subcommittee counsel; and Charles Webb, assistant to Senator Bricker.

The CHAIRMAN. The meeting will come to order.

This is the time set for taking up the Joint Resolution No. 1 proposing an amendment to the Constitution of the United States relative to the making of treaties and executive agreements.

I will ask that there be placed in the record at this point a copy of Senate Joint Resolution 1.

(The resolution follows:)

[S. J. Res. 1, 83d Cong., 1st sess.]

JOINT RESOLUTION Proposing an amendment to the Constitution of the United States relative to the making of treaties and executive agreements

Resolved by the Senate and House of Representatives of the United States of America in Congress assembled (two-thirds of each House concurring therein), That the following article is proposed as an amendment to the Constitution of the United States, which shall be valid to all intents and purposes as part of the Constitution when ratified by the legislatures of three-fourths of the several States:

"ARTICLE —

"SECTION 1. A provision of a treaty which denies or abridges any right enumerated in this Constitution shall not be of any force or effect.

"SEC. 2. No treaty shall authorize or permit any foreign power or any international organization to supervise, control, or adjudicate rights of citizens of the United States within the United States enumerated in this Constitution or any other matter essentially within the domestic jurisdiction of the United States. "SEC. 3. A treaty shall become effective as internal law in the United States only through the enactment of appropriate legislation by the Congress.

"SEC. 4. All executive or other agreements between the President and any international organization, foreign power, or official thereof shall be made only in the manner and to the extent to be prescribed by law. Such agreements shall be subject to the limitations imposed on treaties, or the making of treaties, by this article.

"SEC. 5. The Congress shall have power to enforce this article by appropriate legislation.

"SEC. 6. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States within seven years from the date of its submission."

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The CHAIRMAN. We have the honor of having the distinguished Senator from Ohio, who is the author of this resolution, here with us. I think you ought to be the first witness, Senator. We shall be delighted to have you testify.

STATEMENT OF HON. JOHN W. BRICKER, A UNITED STATES SENATOR FROM OHIO

Senator BRICKER. Thank you very much, Mr. Chairman.

In the very beginning I want to explain for the purpose of the record that this began, I think, about 2 years ago. I think the first presentation I made on the floor of the Senate was in June of 1951. I introduced a resolution there which was never considered by the Foreign Relations Committee. Then I introduced Senate Joint Resolution 130, which was of similar import as Senate Joint Resolution 1, which we are considering here today.

Hearings were held on Resolution 130. There were many witnesses from the departments of Government and from the American bar. I testified at that time. After the presentation the chairman well remembers that I was busy on a security bill and several other matters, on which investigations I was on, and we did not get the final report out. It is possibly well we did not because there has been some subsequent thinking and work on it by the staff and by Mr. Webb of my office and representatives of the bar association that I think has clarified some of the thinking, at least brought the wording into better shape to express what we really have in mind.

There is a singleness of purpose of course on the part of all of us, the bar, and, I am quite confident, the departments of the Government now and the Members of the Senate who have joined in the presentation of this Resolution No. 1. There are 64 Members of the Senate that have joined in this resolution and many others, I think about 6 or 8, have told me that when it is finally put in form and submitted by this committee they will support the matter when it comes to the floor.

I do not want to begin the hearing unless I express a very deep appreciation to some people who have been very active in this, even long before our office became interested in it. I especially want to pay my respects and give commendation to Mr. Frank Holman who will be a witness here, the past president of the American bar, who in the very early days began to alert the lawyers of the country to the imminent danger of treaty law invading the rights of the American people under the Constitution.

Mr. Carl Rix is here also and Mr. Al Schweppe, with whom we have talked, also Mr. Eberhard Deutch and Mr. Finch.

I also want to mention the fact that Mr. Hatch is here from the American bar, Mr. Clarence Manion, the former dean of Notre Dame University, has been very active throughout the country in speaking on this subject and pointing out the danger and the need.

Mr. McGrath of my home State of Ohio, Cincinnati, has been very active. He has been a delegate to the ILO, representing the employers' point of view. He will be here to testify, and many others.

I do want to emphasize the fact that the American bar, through its officials and through those who are leaders in the American bar,

has been very active and has submitted a resolution intending to accomplish the same thing that we are attempting to accomplish here in a little different wording. I think after we have had the presentation to this committee, Mr. Chairman and members of the committee, that we will be able to have the committee work out a wording that will meet the desires of all of us and accomplish what we are all attempting to accomplish.

The CHAIRMAN. Senator Bricker, I would like to invite those gentlemen from the American Bar Association to sit at this table.

Senator BRICKER. I am very happy to have them here. Mr. Rix just told me he is going to present this subject matter to the meeting of the Newspaper Association of the United States at a very early date, which is a great opportunity to get this story presented to the country. Most of the newspapers we have had reports from are supporting the purposes of this amendment.

Mr. Webb of our office has been in constant touch with your staff here in working out this amendment and in considering the testimony that was adduced at the last hearing.

There are two reasons, Mr. Chairman, why Senate Joint Resolution 1 has attracted such widespread support. The American people want to make certain that no treaty or executive agreement will be effective to deny or abridge their fundamental rights. Also, they do not want their basic human rights to be supervised or controlled by international agencies over which they have no control.

What is the extent of the treatymaking power under the Constitution? In a speech last year in Louisville, Ky., Mr. John Foster Dulles, who is now Secretary of State, said:

The treatymaking power is an extraordinary power, liable to abuse. Treaties make international law and also they make domestic law. Under our Constitution, treaties become the supreme law of the land. They are, indeed, more supreme than ordinary laws, for congressional laws are invalid if they do not conform to the Constitution, whereas treaty law can override the Constitution. Treaties, for example, can take powers away from the Congress and give them to the President; they can take powers from the States and give them to the Federal Government or to some international body, and they can cut across the rights given the people by the constitutional Bill of Rights. The CHAIRMAN. May I interrupt to say that Mr. Dulles has written me a letter stating that he wants an opportunity to appear here before this committee and to express his views. I am placing the entire letter into the record. Will you read the letter?

Mr. SMITHEY (reading):

DEAR SENATOR LANGER: The receipt is acknowledged of your letter of February 12, 1953, in which you state that the subcommittee considering Senate Joint Resolution 1, proposing an amendment to the Constitution relative to the making of treaties and executive agreements, has scheduled open hearings for 10 a. m., Wednesday, February 18, 1953.

I should like to take this opportunity to inform you that the Department is greatly interested in this resolution and Secretary Dulles would appreciate having an opportunity to appear before the subcommittee to present the views of the Department. In addition, the Department would appreciate being given an opportunity to file with the committee certain written material bearing on this subject.

Since the Secretary has only recently returned from his trip to Europe, he has, of course, found a number of pressing problems requiring his consideration. In view of this fact, I would like to ask if it would be convenient for the subcommittee to permit Secretary Dulles to appear before it at a later date, the exact time to be fixed as the result of discussions with the subcommittee.

I would appreciate your letting me know if this arrangement will be convenient to the subcommittee.

Sincerely yours,

THRUSTON B. MORTON,

Assistant Secretary (For the Secretary of State).

Senator JOHNSTON. Mr. Chairman, I do not think it needs a motion, but I think it will be up to the chairman to arrange with the Secretary of State for a time that will be suitable to him and the subcommittee. The CHAIRMAN. That is a good suggestion. I want to arrange it for a time when Senator Bricker can be present.

Senator BRICKER. I will meet your convenience, Mr. Chairman, on this matter. I have talked to Secretary Dulles about this and also talked to the Attorney General and talked to other members of the administration and there seems to be a common desire and purpose to work out something that will bring about the end that we desire in this amendment.

I appreciate the courtesy of the chairman, and I will be here at the time you set.

Senator JOHNSTON. Mr. Chairman, may I suggest one other thing? Of course I am one of the coauthors of this particular legislation and I think it is needed, myself, but I think we ought to get all the light on the subject that we possibly can. For that reason I think that you as chairman should take it up with the Justice Department and have them have a representative here when Secretary Dulles appears. They can have whomever they see fit, but he should be some good constitutional lawyer because this is a constitutional amendment. Senator BRICKER. I talked to both the Department of Justice and Mr. Dulles about the matter. I talked to Mr. Dulles before filing the amendment and he said to get it in and they would give proper study to it.

Senator JOHNSTON. The reason I made that statement is that I have not had time to study the wording of this constitutional amendment. I think we ought to be very careful in that field.

Senator BRICKER. There is no doubt about that. The representatives of the American bar and ourselves are convinced as well as the staff. They have been constantly at work on it the last year or two.

In the statement, Mr. Chairman, Mr. Dulles did not exaggerate the danger inherent in an unlimited treatymaking power. From the decision of the Supreme Court in Ware v. Hylton (3 Dall. 199) in 1796 to the present time, the treatymaking power has been a persis tent threat to the liberties of the American people.

Last year, the State and Justice Departments in opposition to any treaty clause amendment, cited to this committee with approval the case of Ware v. Hylton. Senate Joint Resolution 1 would preclude the result reached in that case. Ware v. Hylton is a good place to join the issue.

These were the facts in Ware v. Hylton. In 1774, Hylton & Co. gave a promissory note to two British subjects. To help defray the cost of the Revolutionary War, the State of Virginia passed a law providing that debts to British subjects would be discharged by payment to the State.

In 1780, Hylton & Co. paid $3,000 of its debt to Virginia. More than 3 years after this partial payment, the Treaty of Peace with Great Britain was made. Article IV of the treaty provided:

It is agreed that creditors on either side shall meet with no lawful impediment to the recovery of the full value, in sterling money, of all bona fide debts heretofore contracted.

Ware, an assignee of the British creditor, sued Hylton & Co. for the full amount of the original debt. In the Supreme Court, the validity of the Virginia statute was not questioned. Nevertheless the Supreme Court held that article IV, having become the supreme law of the land, operated to revive that part of the debt which had been extinguished by valid payment to the State of Virginia. By requiring double payment of a debt satisfied prior to the making of the treaty, Hylton & Co. was deprived of property without due process of law, the fifth amendment to the contrary notwithstanding. Last year the Department of Justice asked this committee to prepetuate that doctrine (record of hearings on Senate Joint Resolution 130, p. 403).

To the extent that a treaty removes some State-created impediment to the collection of existing debts by aliens, it would be permitted by Senate Joint Resolution 1. That was not the situation in Ware v. Hylton. The American debtor was required to pay a second time a debt which had been legally paid prior to the making of the treaty. I think in that case, as I remember, John Marshall represented the debtor. John Marshall, of course, was the justice who rendered the opinion in Marbury v. Madison which made the laws of the Congress subject to the provisions of the Constitution. I think the staff has gone over that case pretty thoroughly.

Obviously, the negotiators of the Treaty of Peace with Great Britain did not intend any such harsh result. Since payments by Hylton and others to Virginia were to advance a national purpose, the probable expectation of the negotiators was that British creditors would be reimbursed by Congress.

Just as the negotiators of a treaty in 1783 could not foresee the judicial consequences of their language, the President and the Senate in 1953 can never be certain that a particular treaty will not deny or abridge some constitutional right of a citizen of this country. Perhaps the best modern-day example is the Genocide Convention. Since 1949, that treaty has been held up in the Senate Foreign Relations Committee. The Senate does not dare consider the merits of that convention, foreign policywise, until it is certain that nothing contained therein will prejudice the constitutional rights of American

citizens.

The American Bar Association sees in the Genocide Convention a grave threat to freedom of speech, press, and the rights of persons accused of crimes. Proponents of the treaty deny that such dangers exist. Neither interpretation of the treaty is unreasonable. The Supreme Court has the final word, but it is constitutionally incapable of rendering an advisory opinion. No doubt the Senate could remove any danger to American rights by a series of reservations to the treaty. However, the International Court of Justice has held that substantial reservations to the Genocide Convention will nullify the effect of ratification. The Senate will never be able to vote intelligently on the Genocide Convention until such time as the supremacy of Constitution over treaties is firmly established, and that, of course, is the purpose of this amendment.

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