Parliaments, respectively, implement that treaty by legislation. That is true of virtually all the countries in the world, as Dr. Finch pointed out in that study which he made in the September 1, 1950, report of the Committee on Peace and Law.

As stated in the Canadian Bar Review, November 1951 (p. 969): It is a well-established rule of Anglo-Canadian law that the provisions of a treaty, though binding upon the state under international law, do not become part of the law of the land unless they are implemented by legislation. A treaty that has not been implemented by legislation cannot be the source of legal obligations affecting private rights.

Mr. HOLMAN. That is the Canadian rule.

Mr. SCHWEPPE. That is right.

We want the United States to be in the same position as other countries. There is no reason, if a treaty with Great Britain, so far as the British are concerned, is nothing but an international agreement and has no domestic effect, why it should have a domestic effect in the United States.

As a matter of fact, Judge Hudson, of the Harvard Law School, pointed out some years ago in an article in the American Journal of International Law the anomalous situation we find ourselves in because of our supreme-law clause, which other nations do not have. If we make a treaty that is self-executing in character, it is binding on our courts. The courts in our country will enforce those treaties with respect to private rights, whereas courts in other countries have no duty or any right to enforce them. So what we are trying to do with this second idea in our proposal is to make all treaties non-selfexecuting. Then the Congress will know and the States will know at what time, if any, the treaty will have effect on the domestic law of the country. A treaty in our case will be only an international agreement, just as in the case of Britain and most other countries, until the legislative body incorporates it into the domestic law of the country, to the extent it deems it necessary and proper to do so.

The third concept that is embodied in the proposal of the American Bar Association, approved by the house of delegates, is the last clause of the second sentence, the "which" clause-legislation by Congress "which it could enact under its delegated powers in the absence of treaty."

The first portion of the second sentence of our proposal, is identical with Senator Bricker's proposal, who also proposes to make all treaties whatsoever non-self-executing, in order to put us on a parity with other nations of the world.

The second portion of the second sentence-the "which" clause which we have added as an additional control on implementing legislation under the treaty power-is intended specifically to limit the doctrine of Missouri v. Holland. We have done that, in other words, to make it plain that when Congress legislates under treaties, it is limited to the constitutional powers which it has in the absence of treaty; in other words, that its constitutional powers to legislate are not enlarged by reason of the existence of the treaty, beyond the powers which it would have in the absence of the treaty. We think that the "which" clause will have the effect of keeping State and Federal power in balance.

If that third idea, embodied in the "which" clause is put into a constitutional amendment, then the balance between State and Federal

power will stay as it is, unless changed by constitutional amendment. The Federal Government will not have greater power by virtue of having ratified a treaty, and the States will not have less power by virtue of the Federal Government having ratified a treaty. The reason behind that is several fold. We have made pretty elaborate studies of the whole historical background of the treaty power. We have read all the documents from the Federalist and the debates. It seems perfectly plain to us that it never was intended by the Founding Fathers that the treaty clause should be a device for unsettling the balance between State and Federal power. When the Constitution was originally adopted, you will remember, there were a number of States that had large doubts about the extent of the powers conferred, so 10 amendments were added, 2 years later, in 1791, to make very, very sure that the Government was a government of delegated powers, and that what was not delegated was reserved. Of course, the Court, in determining the scope and effect of the 10th amendment, first determines what has been delegated, and what is necessarily implied from the delegated power. The rest is necessarily reserved to the States and to the people under the 10th amendment. Now, it seems clear to us that the Founding Fathers intended to maintain the balance between State and Federal power that was originally established. They did not intend this modern concept at all: If we make a treaty with Canada, or Lebanon, or Iran, on some subject otherwise reserved to the States under the 10th amendment, State laws and State constitutions to the contrary will pass out the window-that never was their concept. They were very jealous of their State rights. Jefferson expressed this concept in his Manual of Parliamentary Practice as follows:

By the general power to make treaties, the Constitution must have intended to comprehend only those objects which are usually regulated by treaties, and cannot be otherwise regulated.

It must have meant to except out all those rights reserved to the States; for surely the President and the Senate cannot do by treaty what the whole Government is interdicted from doing in any way. (Quoted from American Bar Association Journal, September 1952, p. 736.)

Yet, Missouri v. Holland is to the contrary. Missouri v. Holland specifically holds that a treaty can be made and thereby the Federal Government can invade the area reserved to the States.

The CHAIRMAN. I think this would be a very good place to stop. We have five more witnesses. What time would be convenient for you to meet this afternoon?

Mr. SCHWEPPE. Any time you name.

The CHAIRMAN. Senator Smith and Senator Watkins, what time do you think? Would 2:30 be convenient for you?

Senator SMITH. I have an appointment in the White House today at 3 o'clock.

The CHAIRMAN. We want you here if we possibly can. Would 3 o'clock be better for you?

Senator SMITH. I have got to be down there at 3 o'clock, and I will be back by 3:30, I presume.

Mr. HOLMAN. We can meet at 2 o'clock if you want to.

The CHAIRMAN. Unfortunately, I am tied up until 2:30.

Mr. SCHWEPPE. 2:30 will be fine.

Senator WATKINS. I will not be able to meet at all this afternoon, but I will be here in the morning.

The CHAIRMAN. We would like to have you all the time, if we could, Senator.

(Whereupon, at 12:15 p. m., the committee was recessed, to be reconvened at 2:30 p. m. this same day.)

AFTERNOON SESSION

The CHAIRMAN. Come to order.

STATEMENT OF ALFRED J. SCHWEPPE

Resumed

The CHAIRMAN. Mr. Reporter, we will let the record show that we have a letter here from Americans for Democratic Action, sent by John J. Gunther, legislative representative, which we are placing in the record, and I am asking the clerk to notify them to be ready next Tuesday afternoon, and Mr. Dulles will be here if we can get him, Tuesday morning, if he can possibly be here at that time, and notify the Attorney General and anyone else that has requested to be heard at that time.

(The letter referred to follows:)

Hon. WILLIAM LANGER,

AMERICANS FOR DEMOCRATIC ACTION,
Washington D. C., February 16, 1953.

Chairman, Senate Committee on the Judiciary, Washington, D. C. DEAR SENATOR LANGER: Today we received notification of the hearings scheduled before your committee on Senate Joint Resolution 1, proposing an amendment to the Constitution of the United States relative to the making of treaties and executive agreements, these hearings to be held Wednesday, February 18, 1953.

Americans for Democratic Action is very much interested in the proposed resolution and would appreciate the opportunity of presenting its views to your committee. On February 11, 1953, we inquired at the offices of the Judiciary Committee as to bearings on Senate Joint Resolution 1 and were informed that no hearings had been scheduled.

Our first notice of the hearings was today, February 16. This would give our organization but 48 hours to prepare its statement, secure a competent witness, and appear before your committee. Or, if we are to comply with the Legislative Reorganization Act as requested in your notification of the hearings, we should have but 24 hours to prepare the statement and have it in your office. In view of the importance of this resolution and the seriousness of the consequences which we believe might flow from such an amendment to the Constitution, we ask that we be permitted to testify at a later date, and that all organizations interested in this proposal be given sufficient notice to permit them an opportunity to properly prepare and present their case.

While it is true that many of the organizations testified last year on the proposal of Senator Bricker, adequate time has not been available this year to complete studies on the new Bricker resolution, which is a considerable change from the last year's proposal.

To amend the Federal Constitution is a serious matter, particularly so when the amendment goes to the very question of national sovereignty. Two days' notice of hearings on this all-important question is inadequate.

Very truly yours,

JOHN J. GUNTHER, Legislative Representative.

The CHAIRMAN. Will you continue, Mr. Schweppe? Mr. SCHWEPPE. Mr. Chairman, I shall continue where I was at lunch.

Now, by adding the third idea in the "which clause" which is the last portion of our proposal, we make it very very clear that the Congress does not acquire additional legislative power by virtue of

a treaty on the subject but that congressional power remains the same as it is under the Constitution, unaffected by the ratification of the treaty, and State power remains the same under the Constitution, unaffected by the ratification of the treaty; and the balance between State and Federal power will not be changed by treaty but can only be changed by constitutional amendment.

I want to make one additional point which our proposal covers, and which removes a very substantial problem of constitutional constuction. It is set forth in our February 1, 1952, report. (See 1952 Senate Hearings on Treaties and Executive Agreements, p. 484.) It is with respect to the situation of the first amendment. It is a point which has been overlooked, I think, by many writers on the subject.

We pointed it out as early, I think, as 1950. The first amendment is the amendment which we say protects freedom of speech, freedom of press, and freedom of religion. But what is the language of the first amendment? That so-called protection is in this form:

Congress shall pass no law respecting those three subjects.

"Congress shall pass no law" is a limitation on Congress. Congress does not make treaties. The treaty power is vested in the President and the Senate. If you will not only read the constitutional language itself, but go back to the Federalist, you will see that the founding fathers determined that they should set up a separate agency for the making of treaties. There was discussion as to whether Congress should make them. There was a discussion as to whether the President should make them alone. They determined not to put the power in Congress. They determined not to put it in the President. They determined to set up a separate treatymaking agency consisting of the President and the Senate. The limitations in the first amendment with respect to freedom of speech, press, and religion are only limitations on Congress. They are not a limitation on the treaty making power.

To show you how important that is, the United Nations has in the works now a so-called treaty on freedom of information which deals with freedom of speech and freedom of press. The United Nations proposed Covenant on Human Rights has in its provisions relating to freedom of speech and freedom of press, which are to be dealt with under the treatymaking power.

Providing that no treaty shall have internal effect in the country unless Congress legislates will squarely bring into effect the limitation of the first amendment that "Congress shall pass no law," which at the present time is a wide-open question.

Professor Chafee, in an article he wrote in the Wisconsin Law Review a year or two ago, undertook to address himself to this particular problem, to wit, our committee's comment that the first amendment is a limitation on Congress and not on the treatymaking power. He comes to the conclusion, as I recollect it, that while our point looks very serious we must assume that the Supreme Court will ultimately refuse to adopt that view.

We are not satisfied with that sort of speculation. We believe that that gap should be closed, and that there should be no doubt whatsoever that nothing can be done under the treatymaking power that Congress is prohibited from doing under the first amendment.

These are the principal points incorporated in the amendment recommended by the house of delegates of the American Bar Association.

30572-53- -5

The committee on peace and law has examined all of the proposals on treaties and executive agreements now pending in Congress. While your committee believes that the text previously recommended by it fully and adequately covers all of the constitutional principles which are involved, and which were approved by the house of delegates of the American Bar Association, an even shorter version, wholly within those principles, could appropriately read as follows:

SECTION 1. A provision of a treaty which conflicts with 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.

SEC. 2. Executive agreements shall be subject to regulation by the Congress and to the limitations imposed on treaties by this article.

This shorter text is embodied in Senator Arthur Watkins' Senate Joint Resolution 43, now pending here.

Because the final text of any proposed constitutional amendment will be drawn by the Judiciary Committees of Congress, our committee suggests that you also give this shorter version consideration.

By way of brief summary of the situation since the American Bar Association text recommendation was made to Congress for consideration, no objection has been offered to the first sentence rendering void all treaties in conflict with the Constitution, except that such a statement is "unobjectionable in itself but unnecessary" (Zechariah Chafee, Jr., Harvard Law School Record, February 21, 1952; see American Bar Association Journal, September 1952, p. 794). Nor has much substantial opposition been expressed to the first clause of the second sentence which renders all treaties non-self-executing until Congress acts by implementing legislation, thus putting the United States in this respect on a parity with the great majority of nations. In virtually all of the countries of the world a treaty, while effective as an international obligation upon ratification, does not become domestic law unless and until made so by parliamentary action. (See American Bar Association Journal, September 1952, pp. 468, 469; Report of Committee on Peace and Law, September 1, 1950.)

The principal attack on the treaty amendment recommended by the American Bar Association centers on the last clause of the second sentence, usually referred to as the "which clause." That clause. provides that implementing legislation by Congress intended to make treaties effective as internal law must be legislation by Congress "which it could enact under its delegated powers in the absence of treaty." As stated, the "which clause" is intended to set aside the rule of Missouri v. Holland (252 U. S. 416), which establishes the principle that when the United States makes a treaty on a subject within the treaty power, the Congress can enact legislation to implement the treaty which it would not have power to enact in the absence of a treaty, and thus enter a field normally reserved to the States. That decision makes possible the complete upsetting of the constitutional balance between Federal and State power through the exercise of the treaty power by the President and two-thirds of the Senators present (American Bar Association Journal, September 1952, p. 795). The objection to the American Bar Association draft was stated in the committee report to the New York State Bar Association as follows:

The result would be that even if a treaty deals with an appropriate subject of international agreement, the Congress would have no power to implement it or