We have been engaged in this study jointly for a period of time with the section on international law of the American Bar Association. Some of the members of that section do not seem to feel a constitutional amendment is necessary. They recognize the serious problem here, of which we are all aware, and there is no difference between us as to the existence of a very far-reaching problem. The difference is as to the remedy to be adopted.

The gentlemen of the international law section who do not agree with our viewpoint were of the view that you can control this thing sufliciently by putting clauses in the treaties, or by making reservations to treaties.

The committee on peace and law, supported now by the house of delegates of the American Bar Association, which is its official voice, does not believe that there is an effective answer to the extension of Federal power over the internal affairs of the States by the treaty method. We think that the appropriate remedy is a constitutional amendment which will take us over and above the language of anything that anybody can write into a treaty, or fail to get written into a treaty.

It was agreed between the committee-and this is very important and is a background for our proposal-and the section on international law that, under a treaty, Congress, by virtue of article I, section 8, can pass all laws necessary and proper to give effect to and implement treaties, even though in the absence of such a treaty Congress would not have power under the Constitution to pass such legislation, and that by neither reservation or understanding can this power of Congress be controlled if Congress chooses to exercise it. To that extent we agree. We agree on the problem. We disagree as to the remedy.

A very great American lawyer, Henry St. George Tucker, who was in his day dean of the Law School of Washington and Lee University, and also a former president of the American Bar Association, wrote a book in 1915 which he entitled "Limitations on the Treatymaking Power." The book was some 400 pages, and in the course of that book he makes the famous and much-quoted statement that the treaty clause of the Constitution is a Trojan horse; that is to carry out the comparison-it has a lot of hidden soldiers in it which leap out upon you in the dark of the night when you are not expecting it.

His point about it was that a doctrine such as that of Missouri against Holland, under which the State Department, with the assistance of the President, negotiates a treaty and the Senate ratifies it, suddenly hits the various States in cases that later come up in court, and the States find out for the first time that the President and the Senate by ratifying the treaty have pushed State constitutional provisions and State laws out of the way, and that the matter which was heretofore a matter of strictly State concern has now become a matter of exclusively Federal concern, because, State constitutions and laws to the contrary notwithstanding, the treaty must prevail. That is the reason for Henry St. George Tucker's famous statement that the treaty clause is a Trojan horse. He is not the only one that believes that. Richard Henry Lee of Virginia and Patrick Henry of Virginis objected to the provisions concerning treaties, because they thought there was no control on the treatymaking power. They thought there was no control the way the clause is presently drawn because it says

that statutes must be pursuant to the Constitution but a treaty merely need to be made under the authority of the United States.

The importance of the problem from our standpoint becomes greater when we recognize that fact. Decades ago, and certainly at the time the treaty clause was adopted, treaties were rather simple affairs. They were formal agreements between governments relating to treaties of peace, commerce, and navigation, consular treaties; and that was, generally speaking, the extent of it. However, in recent times, with the more modern viewpoint advocated by Dr. Philip Jessup and others—and it is a viewpoint they have a perfect right to advocate, even though others of us do not agree with it-there has been put into the treaty field a great deal of subject matter which heretofore many of us thought was strictly the domestic concern of the several countries involved. The treaty clause now carries a different implies tion. That is what brings us to this very serious question.

The State Department, for instance, issued an official bulletin in 1950, saying "that there is no longer any real distinction between domestic and foreign affairs." If that is true, then under the treatymaking power, any subject matter can be seized, which heretofore has been deemed to be the exclusive concern of the several States, in their relationship to the citizens of the several States; and, of course, if treaties are made in those fields, State constitutional provisions and laws will disappear to the extent that they conflict with the provisions of a treay negotiated by us with 15, 20, 30, 40, or 50 other nations of the world, who may have different concepts about the particular subject matter that is involved in the treaty.

To show that our committee is not alone in its concern as to the extent of the treatymaking power and that we wrote the first sentence of this proposal advisedly, I would like to direct your attention to a statement made by former Chief Justice Charles Evans Hughes before the American Society of International Law in 1929, so that we cannot be charged with conjuring up anything about the extent of the treaty power. I should like to call your attention merely to these statements from Justice Hughes:

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 the 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—

how prophetic

and this may give rise to new questions as to the extent of the treatymaking 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 treatymaking 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. But, if there is a limitation to be implied, I should say it might be found in the nature of the treatymaking power.

Then Justice Hughes goes on to say:

If we attempted to use the treatymaking powers to deal with matters which did not pertain to our external relations, but to control matters which normally and appropriately were within the local jurisdiction of the States, then I again say there might be grounds 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. That is a brilliant statement, which comprehends the whole problem as it is presented here.

Justice Hughes entertains doubts as to whether, insofar as the courts have ruled, there is any limit to the treatymaking power.

He further issues a caveat that if the treatymaking powers should be used to deal with subjects that heretofore have been deemed to be matters of domestic concern, that they raise a serious question as to the extent of the treatymaking power, and whether or not a limitation should be implied.

The latter portion of Justice Hughes' statement would be rather reassuring if we were not 2 years ago told by the State Department that there is no longer any difference between domestic and foreign affairs. If there is no longer any difference between domestic and foreign affairs, then, of course, the treaty power can reach any domestic subject matter, and then the possible implied limitation referred to by Justice Hughes confining the treatymaking powers to matters of external concern, and excluding it from matters of internal concern, has disappeared from the picture. We would then have the situationand that is the thing that we fear-that under the treatymaking power, any subject can be seized that is within the domestic concern of the States, because the State Department in 1950 expressed the belief that any domestic subject also has international implications, and therefore is a fit subject upon which to make a treaty.

If that is so, under the treatymaking power, a great body of State, constitutional, and statutory law can be completely wiped out.

To give you another illustration that there is nothing fantastic about this fear which we entertain and which Justice Hughes entertained as far back as 1929, we refer in our report to the attitude of President Truman's Committee on Civil Rights. The President's Committee on Civil Rights, which rendered its report, I think, 2 years ago, went into the subject to a considerable extent, as to the power of Congress under its existing constitutional powers, to pass civil-rights legislation, notwithstanding it is the concept of many that civil rights is a subject matter that is the concern of the several States, under the 10th amend

ment.

After dealing with that particular problem as to the extent of congressional power under the Constitution, they said, and I quote:

The Human Rights Commission of the United Nations at present is working on a detailed national bill of rights, designed to give more specific meaning to the general principles announced in article 55 of the Charter: If this document is accepted by the United States as a member state, an even stronger base for congressional action under the treaty power may be established.

Not only that, but as late as February of this year the section on international and comparative law of the American Bar Association, brought in a report to the midwinter meeting of the American Bar Association, stating that under the treatymaking power the Government of the United States could agree to an international criminal court in which there was no trial by jury and in which an American citizen could be taken abroad for trial without the safeguards which the American Constitution gives to him.

Now, it is agreed, if he were tried in this country he would be subject to and have all of the constitutional protections that the

Constitution gives to persons charged with crime, but they say, under the treaty power we can agree to the creation of an international court that frees us of those constitutional limitations and robs us of those constitutional rights.

In other words, it is claimed that the United States Government can, under the treaty power, provide for the trial of American citizens abroad for offenses committed here by methods and in places which the Constitution otherwise forbids.

That is one reason, both the Missouri against Holland doctrine, and this broad assertion as to the extent of the treatymaking power, we suggest as a first sentence, the one that I read you a little while ago, that any provision of a treaty which conflicts with the Constitution of the United States shall be of no force and effect, because, while it has been said by the Supreme Court that you cannot do anything by treaty power when the Constitution forbids it, the situation in Missouri against Holland was one where the Constitution, in the absence of treaty, did forbid the Congress from dealing with the subject matter in the sense that the power was not delegated. Not being delegated, Congress was forbidden to deal with it in the absence of treaty.

However, the Court said that while Congress was forbidden to deal with it under its normal constitutional powers, once the treaty was passed on the subject, Congress then had jurisdiction to deal with it. Equally here, the point put forward about the extent of civil-rights legislation under the treaty power, and about the right to create an international court for the trial of American citizens, freed of all constitutional limitations set forth in the Constitution, shows that there is a real danger that the construction of the treaty powers now laid down may permit something that the Constitution otherwise forbids. Because the courts have spoken only in forms of dicta on this question, and the courts have changed their minds in modern times many, many times, we would like that principle firmly engrafted in the Constitution as a limitation to the treaty power.

The second concept that is embodied in the American Bar Association proposal will have the effect of making all treaties whatsoever non-self-executing.

I will read the first part of the second sentence for this purpose: A treaty shall become effective as internal law in the United States only through legislation by Congress

The purpose of that clause is to take the Trojan-horse element out of the treaty clause. Today a treaty is made. Two or three or five years from now the several States find out that while everybody was asleep, including probably Congress and the States, a provision was put in the treaty which has the effect of invalidating a State constitutional provision or a State law. That comes about by reason of the supreme-law clause in the sixth article, which makes treaties automatically domestic law. Any self-executing treaty becomes automatically domestic law once it has been ratified by the Senate of the United States, State constitutions and laws to the contrary notwithstanding.

What this sentence does is to render all treaties non-self-executing. It does not limit the State Department in negotiating treaties. The State Department can go out and make a treaty in any part of the world, but the treaty does not supersede any law in this country until

Congress acts. We will know exactly at what point of time there is an impact of that treaty on existing Federal and State domestic law, under this proposal.

Senator BUTLER. It has been contended by Mr. Perlman in his brief that this provision that you are now discussing will create a lapse of sovereignty in the Federal Government and would make it împossible in those cases to make treaties.

Mr. SCHWEPPE. I think we have effectively answered Mr. Perlman 100 percent in the memorandum filed with the Committee on Peace and Law, and which is the document printed in last year's hearings, in the green book which you have before you.

Senator SMITH. I would like to ask Mr. Schweppe a question right there about a very current subject. I happened to read about this in the paper this morning, to show you how this situation might develop. I understand there is a great deal of apprehension in the country among livestock growers about Canadian beef shipped in. Suppose a treaty should be negotiated between the United States and any one of a dozen livestock-producing nations for the shipment of beef into this country under the provisions of this treaty. What would be the situation there?

Mr. SCHWEPPE. The States would lose all control over the situation. Mr. HOLMAN. It would operate immediately.

Senator SMITH. Wouldn't that be a possibility right there?

Mr. SCHWEPPE. Yes, sir.

Senator SMITH. It would be a dangerous possibility.

Mr. HOLMAN. That is true of Canada. We are the only country in the world in this embarrassing situation, except France and Mexico. France's constitution is not the same.

Senator SMITH. It seemed to me that that was a very current situation that involves the welfare of a lot of our people, if my State should become a livestock one just like the States out in your part of the country, Mr. Chairman. I think it is a very current proposition, and it illustrates what Mr. Schweppe is telling us. I wanted to be sure that I had the right idea about it.

Mr. SCHWEPPE. That is exactly correct, Senator Smith.

That proposal of ours, which is identical with the one in Senator Bricker's proposal, has in support of it not only logic and reason and the protection of the several States from the Trojan-horse aspect of the treaty clause, but it has behind it international precedent, virtually world over.

We are one of the very, very few countries in the world-in fact, the only important country in the world-where a treaty is other than an international agreement and automatically becomes domestic law of the country-supreme law of the land-by virtue of being ratified. In the British Commonwealth of Nations, and in most other countries and I put into last year's record Dr. Finch's study, made in our committee report for September 1, 1950, bearing my statement out in detail (1952 Senate Hearings on Treaties and Executive Agreements, pp. 490-504)-a treaty does not become domestic law unless there is separate legislation by the legislative body._ Canada can make a treaty. Great Britain can make a treaty. That treaty is binding under international law as an international agreement. But it is not binding as domestic law on the courts of Canada or Great Britain. It does not affect private rights until either the British or the Canadian