(The material referred to follows:)

REMARKS OF BENJAMIN V. COHEN TO INFormal Group OF SENATORS AT DINNER AT CONTINENTAL HOTEL, FEBRUARY 9, 1953, ON THE PROPOSED BRICKER AMENDMENTS TO THE CONSTITUTION

Last year 58 Senators joined in sponsoring a constitutional amendment proposed by Senator Bricker which would impose substantial limitations on the power of the President and Senate to make treaties and agreements with foreign countries. This year 62 Senators have joined in sponsoring a slightly revised form of the proposed Bricker amendment.

In light of the fact that we are living in an increasingly interdependent world from which we cannot isolate ourselves, we should most seriously inquire into the reasons why it should be proposed at this time to deprive the Government of the United States of the powers with which the Founding Fathers deemed it wise to endow it. The Bricker amendment strikes not only at the constitutional powers of the President, but the constitutional powers of the Senate.

Fearing that these powers may be improvidently exercised, the Bricker amendment seeks to impose limitations on the treaty power, which would prevent the President with the advice and consent of the Senate making treaties which in their considered judgment were necessary to promote the safety and welfare of the Nation.

Fearing the future, the Bricker amendment would deprive the Federal Government the power which the Founding Fathers gave it to deal with the future. In its fears for the future of our democracy, the Bricker amendment evinces a profound distrust of the democratic process and of the competence of future Senates to determine what treaties will advance the freedom and welfare of the Nation. A historic review of the treaty provisions of the Constitution revea.s:

1. The Founding Fathers gave careful consideration to the treaty provisions of the Constitution. They considered it necessary to give to the Federal Government broad treaty powers, subject only to the concurrence of two-thirds of the Senate. They believed that treaties once ratified should become the law of the land and should override all State laws to the contrary.

2. Unti! the present controversy regarding the Bricker amendment arose, the major criticisms directed against the treaty provisions of the Constitution have been that the two-thirds of the Senate requirement makes the ratification of treaties too difficult and, at times has enabled a small minority to thwart the clear national will. The Congress in many important instances has in fact chosen to authorize-by the exercise of its legislative powers-important agreements with foreign governments, rather than to follow the more difficult and less flexible treaty-making procedure.

The reciprocal trade agreements, the lend-lease agreements, the Greek-Turkish aid agreements, the European aid or Marshall plan agreements, the agreements establishing the International Bank and Monetary Fund were all authorized by the Congress acting under its legislative powers.

3. There is no evidence whatsoever that the treaty-making power of the Senate has been improvidently or too lightly exercised.

4. There has been considerable controversy as to the appropriate limits of the power of the President to make executive agreements without prior approval of the Congress. Few, if any, have denied the power absolutely and unconditionally and probably no one has been able to offer a satisfactory definition of the power.

On balance the exercise of the power from the Louisiana Purchase to the exchange of destroyers and bases has served the national interest. Executive agreements not authorized or confirmed by the Congress are neither treaties nor laws within the meaning of the supremacy clause. Except insofar as they are in fact executed and carried out, they probably impose no obligation on the Congress to honor them by appropriations or otherwise. The unavoidable risks which they involve relate not to their future or executory promises but to a change in the situation created by their execution which cannot be undone.

Congress, for example, was under no obligation to appropriate money to build the bases on the sites which we obtained under the exchange of destroyers and bases agreement, but Congress could not recover the destroyers actually delivered.

For over 160 years we have lived under the Constitution with its existing treaty provisions. There is nothing in the record of the past which would call for a drastic revision such as is proposed by the Bricker amendment.

The proponents of the Bricker amendment are motivated by their fears of the future-not by any record of past abuses. Their anxiety centers about measures which have been discussed in the United Nations, relating to human rights. They are unwilling to wait and debate these measures on their merits as, and if, these measures ever come before the Senate in treaty form for ratification. They urge the adoption of a constitutional amendment which would make it virtually impossible for present and any future Senate to consider the ratification of any convention relating to human rights in any form, even though it does no more than commit us to uphold our own constitutional principles. The proponents of the Bricker amendment have been particularly concerned about three measures under discussion in the United Nations, only one of which has come before the Senate for ratification. That is the genocide convention. Genocide has been recognized as a crime under international law by the Nuremberg judgments and by the resolutions of the General Assembly. There may be a question whether the genocide convention adds significantly to what is already international law. Were it not for the fact that the United States actively participated in drafting the convention as a part of its struggle against this most horrible of international crimes and its failure to ratify might be misunderstood, one might question the wisdom of pressing for ratification in view of the unreasoning fears expressed by the opponents of the convention. But whether the genocide convention is or is not pressed for ratification in the immediate future, the United States in view of its world leadership should not incapacitate itself from ever joining in a convention which would commit us to prosecute under our own laws those guilty of the crime of genocide, whenever the President and two-thirds of the Senate conceive such action to be in our national interest.

The other two measures which have provoked anxiety among the proponents of the Bricker amendment have not even come before the Senate.

The United States originally hoped to increase freedom of information in the world through the drafting of treaty. In the discussions in the United Nations it developed that many of the other nations were not willing to go far enough to make the effort to secure a treaty on the freedom of information worthwhile and the United States announced that it could not support the draft under consideration. The proponents of the Bricker amendment need not be concerned about this treaty on the freedom of information which the executive branch of the United States Government has rejected. Because we have failed on our first attempt to get a good treaty is no reason why we should put ourselves in a position that we could not join in a good treaty if and when one could be

obtained.

The other measure which causes the proponents of the Bricker amendment the gravest anxiety is the Covenant on Human Rights. But this covenant is still in the drafting stage. The discussions have revealed serious differences even among friendly states. There is serious question whether efforts to compromise our differences will provide the basis for a satisfactory covenant. There is serious question whether a covenant of compromises will not obscure the great principles of the Declaration of Human Rights, which the Assembly unanimously adopted—not as binding law but as guiding principle.

The executive branch of the Government will undoubtedly review the whole subject before any covenant is submitted to the Senate for ratification. If a covenant is submitted which is not satisfactory, it is not likely to be ratified by the Senate. But we cannot say to the world that we abandon our interest in human rights and our willingness ever to join in any convention which will insure the observance of human rights.

The fear that in subscribing to a Covenant of Human Rights we would abandon our own constitutional rights as guaranteed by the Bill of Rights is without foundation. The Supreme Court has repeatedly stated that a treaty cannot authorize what the Constitution forbids (Geofroy v. Riggs, 133 U. S. 258, 2671. Even the present draft of the Covenant of Human Rights, which the proponents of the Bricker amendment find unsatisfactory provides expressly that "nothing in this covenant may be interpreted as limiting or derogating from any of the rights and freedoms which may be guaranteed under the laws of any contracting state."

Let us not forget that the first suggestion for a Commission on Human Rights and Fundamental Freedoms was made by the Honorable John W. Davis in a radio address on February 4, 1945, prior to the San Francisco Conference. In that address Mr. Davis said:

"The proposal I have just read to you urges the setting up of a Commission on Human Rights and Fundamental Freedoms. *** It is a necessary part of permanent peace, for there can be no such thing as lasting peace that is not founded on the decent treatment of human beings." As General Marshall stated in the General Assembly in Paris in 1948: "Systematic and deliberate denial of basic human rights lies at the root of most of our problems and threatens the work of the United Nations."

The Bricker amendment is not necessary to protect constitutional rights guaranteed by our Bill of Rights by treaty or otherwise. A textual examination of the Bricker amendment reveals that it would deprive the Nation of the treaty powers to secure the recognition and extension of such rights in other countries and thereby seriously handicap the United States in its struggle for world peace and freedom.

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

If this provision is intended merely to prevent doing by treaty what the Constitution forbids in the Bill of Rights or elsewhere, it is not necessary. The Supreme Court has repeatedly stated that a treaty cannot authorize what the Constitution forbids. But the provision is at least susceptible of a broader interpretation. It refers to any right enumerated in the Constitution. If this refers to the reserved rights of the States, it would seriously affect the power of the Federal Government to enter into the ordinary treaties of friendship and commerce guaranteeing commercial rights to aliens, which override the laws of the States. The language of the proposed text is dangerously loose and vague. "SECTION 2. No treaty shall authorize or permit any foreign power or 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 domesic jurisdiction of the United States." In this increasingly interdependent world, this provision, intentionally or not, would raise artificial barriers to the natural and necessary growth and development of international law. International law is based on the customs and treaties of nations. Most matters not covered by existing customary international practices and treaties are considered matters of domestic concern. when States, in the exercise of their sovereign powers, deal with a matter by treaty it is, at least to the extent covered by the treaty, no longer considered a matter of domestic jurisdiction but of international concern. But the Bricker amendment would put a stop to this development of international treaty law. At a time when the Government of the United States is urging European states to enter into treaties with far-reaching consequences to their internal economic and political life, the Bricker amendment would take from the President and the Senate the power to determine what matters should in this atomic age be regulated by treaty.

But

If the Bricker amendment should be passed, the President and two-thirds of the Senate would be without power to enter into any effective treaty for guaranteed disarmament. Effective international inspection and supervision of disarmament would certainly infringe on matters heretofore regarded as essentially within the domestic jurisdiction of the United States.

The representatives of the United States and of other western countries in the Disarmament Commission have seriously objected to the contentions of the Soviet Union that inspection must not extend to any interference in internal affairs. The United States has taken the position that if we are to have effective control of atomic energy to insure its use for peaceful purposes only, no obstacles must be raised to the international inspection necessary to insure that the control scheme is being observed.

Neither the Baruch plan nor any other plan of disarmament involving effective international inspection as a safeguard could be put into operation if the Bricker amendment were adopted. Not only would any such plan involve matters heretofore considered essentially of domestic jurisdiction, but it would give an international control agency power to inspect and, in that sense, to supervise rights of American citizens within the United States * * * rights enumerated in our Constitution. The present Narcotic Control Convention, which imposes on the United States the obligation to regulate-not only international traffic in narcotic drugs-but the internal manufacture of such drugs is another case in point. We have even passed legislation in support of this convention, which requires a Federal license for the growing of opium poppies.

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Such a convention clearly involves matters which, in its absence, would be regarded as essentially domestic. Should it be possible to supplement such a convention with a protocol providing international inspection to insure that other countries controlled the narcotic traffic as effectively as we do, the Bricker amendment, if adopted, would stand in the way, not only because of its wording as to domestic jurisdiction, but because the protocol would give an international agency inspection powers which, it could be argued, relate to rights of American citizens in the United States *** rights enumerated in the United States Constitution.

Of course, if without the Bricker amendment, we could secure such a protocol, our courts under our Constitution would continue to protect the constitutional rights of our citizens against action, by treaty, which the Constitution forbids. But that would not deter, as the Bricker amendment would deter, the international agency from reporting whether the law was being enforced in the United States, as well as in other countries from which drugs are illicitly exported into the United States. Obviously we cannot secure treaties from other countries unless the provisions of the treaties are applicable to us as well as to them.

In the peace treaties with Hungary, Rumania, and Bulgaria, we obtained undertakings that they would secure the human rights and freedom of their citizens. The Soviet satellite countries refused to set up arbitration commiss'ons to decide whether they were fulfilling their obligations under the treaties on the ground that they related to matters of domestic jurisdiction. The Court of International Justice decided that they were under a duty to arbitrate. Obviously our moral position would be greatly injured when we, in the interest of world peace, are trying to insure by treaty that other countries respect human rights, if we adopted a constitutional amendment which in effect declares that human rights should not be regarded as a matter of international concern.

In our first treaty-the treaty of 1783-we promised Great Britain that no former Tory should suffer any future loss or damage, either in his person, liberty, or property. But we might not-under the language of the Bricker amendment-be able to accept such a clause because the rights of the former Tories would be rights of American citizens enumerated in the Constitution and an international arbitration commission might be asked to make a finding as to whether those rights were being respected.

In the present dangerous conditions of world affairs we cannot afford to get into a position where we support the proposition that states cannot and should not enter into international engagements to observe the very rights which their constitutions are supposed to safeguard.

This section 2 of the Bricker amendment would deprive us of any leadership in the struggle to make human rights internationally secure. If we say that rights enumerated in our constitutions cannot be a matter of international concern, we encourage the totalitarian states to use human rights clauses of their constitutions as a bar to prevent inquiry into their flagrant violation and disregard of the laws of nature and Nature's God.

"SEC. 3. A treaty shall become effective as internal law in the United States only through the enactment of appropriate legislation by the Congress." There has been much misunderstanding regarding the time when treaties become effective internationally and internally.

Internationally all states become bound by treaties in accordance with their terms as soon as they are duly ratified. In international law, no state is relieved or absolved from its international treaty obligations by its failure to pass the internal legislation required to fulfill its international obligations. In most states, a treaty is ratified by a process substantially the same as the normal legislative process required to enact an internal law, and in most states at the very same time a treaty is ratified, the internal legislation required to give it effect is enacted. While it is frequently said that in most states treaties are not self-executing but must be enacted into internal law by legislation, the practice in most states is as stated-to ratify a treaty and to enact the necessary legislation to make it effective as internal law at the same time and as a part of a single procedure.

In the United States a treaty is ratified by a process ouite different from the normal lawmaking process. The concurrence of two-thirds of the Senate is required and no action on the part of the House of Representatives is required. Under the supremacy clause of the Constitution, a treaty becomes a part of the law of the land. The founding fathers were insistent that a treaty, once ratifi d. should become the law of the land, anything in the Constitution or laws of any State to the contrary notwithstanding, because they wished to insure that the

pledged word of the United States in any treaty would be strictly observed and not broken by the defaults of the several States.

If treaties under our Constitution were subject to ratification by a majority of both Houses of Congress, there would be little objection to the proposed section 3 of the Bricker amendment, assuming that we followed the practice of other States of enacting the necessary internal legislation at the same time and as a part of the ratifying procedure. But under our present constitutional system, it would be highly objectionable for us to bind ourselves internationally when a treaty is ratified by two-thirds of the Senate and to find ourselves in default on our international obligations because of the prolonged delay or failure of Congress to enact the necessary legislation to carry out our international obligations by internal law, overriding the conflicting law of the several States. Section 3 of the Bricker amendment would introduce needless confusion as to the effectiveness of treaty ratification by the Senate and cast unnecessary and harmful doubt on our ability to carry out our treaty obligations.

There is no reason why a treaty solemnly ratified by two-thirds of the Senate should not become the law of the land in accordance with its terms. Of course, if it is not intended that a treaty should be self-executing, that intention can be made clear by its terms or necessary implications, or if need be by Senate reservations, and the courts would not treat it as self-executing. Moreover, if Congress finds that the treaty has made unexpected or objectionable changes in internal law, the law can be changed by a subsequent law of the Congress, even though it involves a breaking of the treaty.

Section 3 of the Bricker amendment introduced dangerous confusion as to the effectiveness of treaties duly ratified by the United States and is wholly unnecessary to enable the Congress to correct unintended changes in our internal

law.

"SECTION 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 extend prescribed by law. Such agreements shall be subject to the limitations imposed on treaties, or the making of treaties by this article."

Most of the agreements now made by the President with any international organization or foreign country are made as prescribed and authorized by Congress. There is no objection or obstacle to Congress regulating by law the making of agreements by the President in foreseeable situations and foreseeable circumstances. The difficulty is that unforeseeable situations and unforeseeable circumstances may arise in this dangerous world, in this thermonuclear age, when emergency action must be taken promptly in the national interest. It is really unthinkable that the President should be deprived of all power to act to preserve the Republic in a grave national emergency because Congress has failed to prescribe how the President should act in a situation which Congress did not and could not foresee.

It has been pointed out that executive agreements which are not authorized or confirmed by law do not, under the supremacy clause of the Constitution, become part of the law of the land. The Congress is not bound to make appropriations and the Senate is not bound to ratify treaties to carry out executive agreements of the President. For practical purposes, executive agreements of the President are irrevocably binding only insofar as they are executed, only insofar as there has been a change in the situation created by their execution which cannot be undone. These are the irreducible and unavoidable risks which must be taken unless the Nation is to be deprived of all power to act in an unforeseeable emergency.

In the dangerous world we live in, it cannot be said that no action—in a grave national emergency-is better than any action. Even improvident action may be better than no action.

At the hearings on the Bricker amendment last year a witness was questioned concerning the agreement to allow the Soviet Union to accept the surrender of Japanese troops north of the 38th parallel. The witness did not know whether a better agreement might or might not have been made, but he had been told by a friend who was with General Hodge's army in Korea that had there been no agreement the Soviet armies would have occupied the whole of Korea.

There is no justification in our history or experience for making the radical changes in our Constitution proposed by the Bricker amendment. Under our present Constitution the Supreme Court has adequate power to protect the rights guaranteed under the Bill of Rights from infringement by treaty or other