I have been sympathetic to the point of view reflected in Senate Joint Resolution 1, and I have so expressed myself. I have, however, now come to the conclusion that this whole matter requires further study, because analysis of the pending resolutions shows that they may seriously weaken our Government in the field of foreign relations in ways which, I know, the proponents of the resolutions do not intend or desire. The two different proposals before you, and independent drafting efforts of my own, convince me that it is difficult, if not impossible, to amend the Constitution so as to exclude possible abuses, without incurring risks that are far greater than the risk that the present powers will be abused.

Present importance of treaty power: At this time, perhaps, more than ever before in history, the United States should be able to make effective contracts with other nations.

We need national power to achieve free world unity of purpose and performance.

Today about 50 free countries, representing approximately twothirds of the peoples and natural resources of the world, face a grave threat. That threat comes from a single totalitarian dictatorship which rules one-third of the peoples and natural resources of the world. This single despotic power has enormous advantages, unless the free nations can work together. This cooperation of the free cannot be achieved by imposed unity. It must be achieved largely through treaties and executive agreement which will coordinate the military and economic strength of the free world, and promote friendly cooperation and understanding. The ability of the United States to use treaties and agreements to effect this result can become a matter of national survival.

We need national power to make treaties with our potential enemies, in order to mitigate our dangers and to ease our burdens through meas ures which would effectively control armaments. Such treaties do not now seem likely, but their possibility should not be excluded.

If we should be attacked, and, unhappily, there should be war, the President as Commander in Chief would need the power through executive agreements to achieve unity of purpose and of action with our allies. And when victory was won, we would need national power to make treaties of peace which would heal the wounds of war.

It is against this background that the pending resolutions must be judged.

DISCUSSION OF RESOLUTION

Section 1: I could discourse about the resolutions at length. It may, however, be enough, if, at this time, I illustrate, principally in terms of Senate Joint Resolution 1, why in my opinion the pending resolutions, despite the good intentions which prompt them, actually could be dangerous to our peace and security.

Section 1 of Senate Joint Resolution 1 provides that no treaty shall abridge any right enumerated in the Constitution. The Constitution specifies the power of Congress to declare war. Does section 1 of the proposed constitutional amendment mean that the United States can never make a treaty which would outlaw war? Can we never agree, with other nations, to abridge the present unqualified right of Congress in relation to war? Surely this is no time for the United States to make itself unable to enter into treaties which would effectively ban the terrible specter of a war.

Section 2: Section 2 of the proposed resolution says that no intertional organization may supervise or control the rights of citizens of e United States within the United States if those rights are enuerated in the Constitution or are "essentially within the domestic risdiction of the United States." This could mean that the United tates could not make effective treaty arrangements for the internaonal control of atomic energy and mass destruction weapons. The nited States has always insisted in negotiations and debate with the oviet Union that no limitation or control of armaments would be cceptable unless enforced by strict international supervision. This as the so-called Baruch plan. The Soviet Union has so far refused o accede to such international control. But surely this is no time for he United States to make itself unable to participate in the effective ternational control of armaments.

And how about international supervision of aviation, radio, narotics, and quarantine requirements? Mere assertion that these are ternational and not domestic matters will not settle the question. We can but speculate as to what decisions the Supreme Court may each as to the meaning and application of the proposed amendment n our Constitution.

Section 3: Section 3 of the proposed resolution says that no treaty hall become "law of the land" except through legislation by the Conress. This would make it much more difficult to consummate effecive treaties. Our Nation's ability to deal with other nations would e gravely impaired. For all treaties which operate within the United States would, in the first instance, have to be consented to by the Senate by the traditional two-thirds majority and then also, at a later late, be put into force by laws requiring the concurrence not only of he Senate but also of the House.

In the past it has often been charged that our present constitutional reatymaking process is too difficult, being subject to block by onehird plus one of the Senators present. This has been criticized as government by minority." It has also been suggested that the twohirds Senate requirement be abandoned in favor of a majority of both he Houses. But now it is suggested that a two-thirds vote of the Sente is not enough-that there must also be a majority vote of the House of Representatives if a treaty is to be effective within our country. In many countries, the Senate or upper house has become relegated to an unimportant role. In this country, the Senate has proudly exereised a unique role of participating with the President in the making of treaties. It would occasion surprise and misgivings in many quarters if the Senate should now feel so unsure of itself that it sought o subject its two-thirds approval to veto by a majority of the House. Section 4: Section 4 of the proposed resolution deals with executive greements. It provides that the President cannot make any agreenent of any sort with any foreign government or official except as the Congress may prescribe. This section would gravely embarrass the President in dealing currently with foreign affairs. Today he is one of the coordinate branches of Government with exclusive jurisdicion in relation to the current conduct of foreign affairs. The proposed amendment would drastically alter the President's position in hat respect and change the present constitutional concept of balance of power.

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Executive agreements of major importance are now customarily made pursuant to congressional or treaty authorization, or depend on congressional action for their implementation.

But every day the President, directly or through his agents, makes minor agreements of some kind or description with other governments or officials. There are masses of agreements made, and changed, almost daily with relation to the development of foreign bases and disposition of our troops abroad. There are many agreements with other governments to impose restrictions upon trade with areas unfriendly to us. There are daily agreements regarding a host of matters. This resolution would subject this entire process to congressional prescription.

I know full well that the proponents of this resolution are not activated by a purpose to embarrass the President in such matters. But that is what the amendment would do. It would so detract from the authority of the oflice of the President of the United States that his capacity to deal currently with international affairs would be gravely impaired.

Executive agreements: It has long been recognized that there is an undefined, and probably undefinable, borderline between Executive agreements which may be made by the President alone and those that require validation by the Senate as treaties, or the Congress as laws. This has occasionally caused controversy between the executive and legislative branches of Government.

There is a similar undefined, and probably undefinable, borderline between international agreements which require two-thirds Senate concurrence, but no House concurrence, as in the case of treaties, and agreements which should have the majority concurrence of both Chambers of Congress. This has occasionally caused controversy between the Senate and the House.

The danger to the Nation, however, from agreements not submitted to the Senate as treaties, or to the Congress for legislative validation, cannot be great because, without either Senate or congressional action, these agreements cannot constitutionally become law of the land.

This is an area to be dealt with by friendly cooperation between the three departments of Government which are involved, rather than by attempts at constitutional definition, which are futile, or by the absorption, by one branch of Government, of responsibilities which are presently and properly shared.

In order to promote that friendly cooperation, I am authorized by the President to advise this committee, the Senate Foreign Relations Committee, and the House Foreign Affairs Committee, as follows:

It has long been recognized that difficulties exist in the determination as to which international agreements should be submitted to the Senate as treaties. which ones should be submitted to both Houses of the Congress, and which ones do not require any congressional approval.

Differences of opinion resulting from these difficulties have given rise in the past to disputes between the executive branch and the Congress concerning the handling of international agreements. It must be recognized that it wou'd be extremely difficult, if not impossible, to fit all agreements into set categories At times there may be disagreement as to the manner in which agreements are to be dealt with. While recognizing this, the Executive cannot surrender the freedom of action which is necessary for its operations in the foreign-affairs fleid In the interest of orderly procedure, however, I feel that the Congress is entitled to know the considerations that enter into the determinations as to which proces dures are sought to be followed. To that end, when there is any serious question

of this nature and the circumstances permit, the executive branch will consult with appropriate congressional leaders and committees in determining the most uitable way of handling international agreements as they arise.

Senate Joint Resolution 43: Senate Joint Resolution 43, which ollows the language proposed by a committee of the American Bar Association, contains a further provision. This would require that 10 treaty shall be effective in any field in which Congress in the bsence of a treaty cannot legislate. This would create a no-man's and in foreign affairs. It would require the concurrence of all 48 States to make effective such common treaties as treaties of friendhip, commerce, and navigation, extradition, reciprocal inheritance axation, migratory birds, collection of foreign debts, and status of oreign troops. In this field of foreign affairs our country would ot speak with 1 voice but with 49. The primary objective of the ramers of our Constitution in this respect would be defeated. Those emarks, I point out, refer only to Senate Joint Resolution 43, not Senate Joint Resolution 1.

A balancing of risks: I feel sure that the proponents of the resoluions do not intend to do other than to eliminate the risk of abuses. Their motives are, I know, of the highest. The trouble is that, when it comes to putting their desire into legal form, the result is greatly reduced capacity for national action in an area where it is of the utmost importance that our Nation should have power. Of course, there can never be power without risk of its abuse. But ur present constitutional processes have worked successfully for 60 years. Never during this period has any actual treaty produced he results which the proponents of the resolution fear. Whenever here has seemed to be danger of that, the people of the United States, he judiciary of the United States, the Senate of the United States, nd the executive branch of the United States have, in their respective pheres, moved to repel that danger. What has happened in recent honths, including the exertions of the proponents of the resolution, emonstrates that the resolution is unnecessary. The trend they eared has been checked.

In this connection, a special tribute is due to Senator Bricker. His xertions to alert our Nation to possible danger will long be rememered. It can, however, be judged that the proponents of these resoluons have themselves shown that amendment of the Constitution is nnecessary.

The test of any constitution is not the way it reads but the way it works. George Washington in his Farewell Address pointed out nat "experience is the surest standard by which to test the real endency of the existing constitution of a country." He went on to arn against "changes, upon the credit of mere hypothesis, and pinion.' "That, he said, "exposes to perpetual change from the endss variety of hypothesis and opinion."

Our Constitution, as it is, has served us well in the field of foreign lations. There is no actual experience to demonstrate the need of ne far-reaching changes here proposed. The fears are hypothetical. herefore, I suggest that this constitutional area is one which deserves o be kept under constant observation and study, but that there is no resent need for constitutional change.

The Department of State has prepared a more detailed memoranum dealing with the legal questions raised by these resolutions. I

submit this for the information of the committee and ask that it be included with its annexes, in the record of this hearing.

The CHAIRMAN. You may.

(The memorandum follows:)

STATEMENT BY Department of STATE ON SENATE JOINT RESOLUTION 1 and SENATE JOINT RESOLUTION 43

This statement is supplementary to that made orally by Secretary of State Dulles in opposition to Senate Joint Resolution 1 and Senate Joint Resolution 43.

BASIS OF OPPOSITION

The opposition of the Department is based upon the following:

1. The amendment of the Constitution as proposed would upset the constitutional balance of power between the executive and legislative branches and weaken the United States in its conduct of foreign affairs.

2. The disadvantages resulting from such amendment outweight any possible advantages.

3. The fears of the proponents that treaties changing the fundamental character of our Government will be adopted are not justified.

SUMMARY OF PROPONENTS' ARGUMENTS

The arguments of the proponents of the resolutions may be summarized as follows:

1. The amendment is designed to prevent any treaty or executive agreement from undermining the sovereignty of the United States or the fundamental rights of its citizens.

2. A constitutional amendment is necessary to protect American rights and to preserve the American form of government against changes in its fundamental character which are alleged to be threatened by United Nations treaties now under negotiation, such as the covenant on human rights.

The advocates of the resolutions do not claim that any treaties heretofore adopted either offend our Constitution, or were unwise or improvident. Their argument is based rather upon the proposition that since the adoption of the United Nations Charter there has been a policy, promoted by the Department of State, of bringing into the field of international relations subject matter that has heretofore been deemed to be of domestic concern; that numerous multilateral treaties, under the so-called international bill of rights program, are now under negotiation, which if ratified by the United States would change the fundamental character of our Government, destroy the constitutional protections of our citizens, and destroy the traditional balance between State and Federal power. The proposed amendments are designed to prevent this result, it being asserted that present constitutional methods do not afford sufficient protection.

This memorandum will point out that these fears are not justified; that the amendments proposed are unnecessary, and their adoption would not only upset the constitutional balance between the executive and Congress but would weaken the ability of the United States to deal effectively in the field of foreign affairs at a time when world conditions require more than ever before that our country be able to act quickly and effectively.

THE PROPOSED AMENDMENTS

We turn to the provisions of the resolutions.

Senate Joint Resolution 1, 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.”

Senate Joint Resolution 43, section 1

"A provision of a treaty which conflicts with any provision of this Constitution shall not be of any force or effect. ・・

These proposals seem unobjectionable at first glance, though unnecessary The treatymaking power is a constitutional power, and as such cannot po sibly violate the Constitution.