But, more importantly, reverting to the difference in descriptive phraseology for the laws and for treaties in article 6, clause 2, of the Constitution, to which Holmes merely alluded in passing, sight has been lost of the origin of the difference, and hence its true significance. In the Constitutional Convention of 1787 the first aspect of the treaty provisions to come up for discussion was that which became ultimately embodied in the supremacy clause. The Virginia resolutions had proposed that the National Legislature have power to negate State laws contravening the Articles of Union. An amendment by Dr. Franklin added the power to negate State laws contravening "any treaties subsisting under the authority of the Union," and the proposal was initially agreed to without debate or dissent.10

Subsequently, the proposed power to negate State legislation was rejected. Those opposed to the provision argued that it would be offensive to the States and that a State law that could be negated would be set aside by the judiciary or, if necessary, could be repealed by a national law. Accordingly, in place of this provision, there was proposed a supremacy clause, providing that all legislative acts of the United States and all treaties made and ratified under the authority of the United States should be the supreme law of the respective States, insofar as they related to such States or their citizens and inhabitants, and should be binding on the State judiciary. This proposal was unanimously adopted."

Subsequently the supremacy clause was extended to "treaties made or which shall be made" under the authority of the United States, so as to "obviate all doubt concerning the force of treaties preexisting." 12 Thus the framers of the Constitution wanted to be sure, and made sure as time proved, that the supremacy clause extended not only to treaties which might in the future be made under the new Constitution but also to treaties which had in the past been made under the Articles of Confederation. They therefore said "treaties made or which shall be made" shall be binding. To have limited the clause only to treaties made in pursuance of the new Constitution would have defeated that purpose.

Senator BRICKER. That was done because of the British claims against the States.

Attorney General BROWNELL. That is right.

In that connection one of the principal concerns was the 1783 treaty of peace with Great Britain 13 just mentioned by Senator Bricker, and the ability of the new National Government to comply with its obligations in spite of the recalcitrance of a number of the States," The treaty, among other things, protected British creditors and guaranteed against future confiscations or prosecutions of persons on account of their part in the Revolutionary War. The status of this treaty was among the first issues to come before the new Supreme Court, in Ware

an oran's It has taken a century and has cost their sucesssors much sweat and ba to prove that they created a Nation. The case before us must be considered in the › g` our whole experience and not merely in that of what was said a hundred years aga treaty in question does not contravene any prohibitory words to be found in the ( mate tion The only question is whether it is forbidden by some inviside radiat on fr general terms of the 10th amendment. We must consider what this ecuntry has bee in deciding what that amendment has reserved" (252 U. S. 433-434).

*Errand Records of the Federal Convention, 47, 54 61

12 Farrand Records of the Federal Convention, 21 22, 27-29.

#2 Farrard, Records of the Federal Convention, 417.

Stat 80.

31 Journals of the Continental Congress 781-874.

ylton, decided in 1796.15 The Court held that the treaty of 1783 rode Virginia wartime legislation discharging indebtedness to ish creditors, also that the treaty operated to revive a debt owed by American citizen. Similar holdings in the early 1800's were made he Court in Hopkirk v. Bell, 16 involving a State statute of limitas, and Higginson v. Mein," involving State confiscation of properf a British subject. Still other and later cases sustained both the 1789 and the post-1789 treaties, in protecting alien ownership and sfer of real property.18

none of these cases, nor in any case decided by the United States reme Court involving the construction or effect of a treaty, can find or discern an intention or purpose to regard a treaty as ve the Constitution. On the contrary, the Court has repeatdly hasized the subordinacy of treaties to the Constitution. In froy v. Riggs 19 the Court said:

ould not be contended that it [the treaty power] extends so far as to authorwhat the Constitution forbids, or a change in the character of the Governor in that of one of the States ***.

n Doe et al. v. Braden,20 the Court said:

e treaty is therefore a law made by the proper authority, and the courts ustice have no right to annul or disregard any of its provision, unless they te the Constitution of the United States.

n the Cherokee Tobacco, 21 the Court said:

need hardly be said that a treaty cannot change the Constitution or be valid if it be in violation of that instrument. This results from the nature fundamental principles of our government.

Missouri v. Holland, 22 the case which is allegedly the motivating ce for the proposed amendment-one of the proposed amendments east-the Court said:

e do not mean to imply that theer are no qualifications to the treatymaking er. ***The treaty in question does not contravene any prohibitory words e found in the Constitution.

United States v. Minnesota, 23 the Court said:

I course, all treaties and statutes of the United States are based on the Contion; ** The decisions of this Court generally have regarded treaties as

2

= Cranch 454 (1806).

Dall. 199 (1796).

Cranch 415 (1808).

E. g., Orr v. Hodgson (4 Wheat. 453 (1819)); Society for the Propagation of the el v. New Haven (8 Wheat. 464 (1823)); Fairfax's Devisee v. Hunter's Lessee (7 ch 602, (1813)); Chirac v. Chirac (2 Wheat. 259 (1817)); Hauenstein v. Lynham U. S. 483 (1879)).

33 U. S. 258 (1890). The whole of the quotation reads: "The treaty power, as exed in the Constitution, is in terms unlimited except by those restraints which are 1 in that instrument against the action of the Government or of its departments, and e arising from the nature of the Government itself and of that of the States. It d not be contended that it extends so far as to authorize what the Constitution foror a change in the character of the Government or in that of one of the States, or a on of any portion of the territory of the latter, without its consent. Fort Leavenh Railroad Co. v. Lowe (114 U. S. 525, 541). But with these exceptions, it is not eived that there is any limit to the questions which can be adjusted touching any er which is properly the subject of negotiation with a foreign country. Ware v. on (3 Dall. 199); Chirac v. Chirac (2 Wheat. 259); Hauenstein v. Lynham (100 U. S. ; 8 Opinions Attys Gen. 417; The People v. Gerke (5 California 381)."

6 How. 635, 657 (1853).

1 Wall. 616. 620-621 (1870).

252 U. S. 416, 433 (1920).

270 U. S. 181, 207-208 (1926).

30572-53-58

on much the same plane as acts of Congress, and as usually subject to the general limitations in the Constitution

In addition, the Supreme Court has dealt with specific issues involving claims that certain treaties violated express constitutional guaranties. In Prevost v. Greneaux," the Court held that a tax which had accrued to a State was not divested by a subsequent treaty. Said the Court, "And certainly a treaty, subsequently made by the United States with France, could not divest rights of property already vested in the State, even if the words of the treaty had imported such an intention."

In Brown v. Duchesne," the Court stated that a treaty could not provide for the taking of private property without just compensation. In In re Ross," it was contended that a treaty and implementing statute, providing for trial by a consular court of crimes committed by American citizens in Japan violated various constitutional guaranties of fair trial. The Court rejected the contention, not by stating that the treaty was above the Constitution, but by holding that the constitutional guaranties did not extend to crimes committed abroad. On like reasoning, the Court has sustained extradition of American citizens."

In Missouri v. Holland, the contention that a treaty and implementing statute violated the tenth amendment was rejected on the ground that the treaty power was expressly delegated to the Federal Government, therefore its exercise did not infringe the reservation to the States of powers "not delegated." 30

Not only does the Supreme Court regard treaties as subordinate to the Constitution, but it regards them as generally of the same dignity as statutes. Thus a treaty can be modified or repealed by a Federai statute so far as its domestic effect is concerned. So, the Court has held, to the extent that a treaty is self-executing as to become the law of the land, "it can be deemed in that particular only the equivalent of the legislative act." 32

The CHAIRMAN. Mr. Attorney General, I regret I have to leave to make a quorum over in the Foreign Relations Committee. I will ask Mr. Hendrickson, the ranking member, to take my place.

24 See, to the same effect, Jones v. Walker (Fed. Cas. No. 7507, 13 Fed. Cas, at p. 1062) Amaya et al. v. Stanolind Oil & Gas Co. (158 F. 2d 554, 556 (C. A. 5, 1946, certiorar nied, 331 U. S. 808); United States v. Thompson (258 Fed. 257, 268 (E. D. Ark. 1919 Indemnity Insurance Co. of North America v. Pan American Airways (58 F. Supp 339, 340 (8. D. N. Y., 1944)).

25 19 How. 1. 7 (1856).

219 How. 183. 197 (1856).

#140 U. S. 453 (1891)

Neely v. Henkel ((No. 1) 180 U. S. 109. 122-123 (1901)); Wright v. Henkel (150) U. S. 40, 53 (1963)); Charlton v. Kelley (229 C. S. 447 (1913)).

252 U S. 416 (1920).

See also Stutz v. Bureau of Narcotics (56 F. Supp. 810 (N. D. Cal. 1944)).

Head Money Cases (112 U. S. 50, 597-599 (1884)); Chae Chan Ping & Imited States (130 U. S. 5×1, 600-603 (1889)); see Moser v. United States (341 (8 41 45 (1931)).

Chae Chan Ping v. United States, supra (130 U. S. at 600); see United Statre a Minesota (270 U S. 181, 208). Not only does it appear clear that treaties are st to constitutional limitation, but it is equally clear that they are subject to judicare To hold otherwise would create the anomalous position that although the courts deny enforcement of a treaty on the ground it was inconsistent with a 1-tir art Congress, they were without power to do so on the ground of inconsistency wit Constitution. The power of Federal courts to invalidate acts of Congress contrar Constitution was implied from the propositions that a statute could not ever Constitution, that the Federal judiciary had jurisdiction over cases ar sing under the stitution, and that it was sworn to uphold the Constitution Marbury v Mati Cranch 137, 176–180 (1803)) The same reasoning applies to trestles Morton ((Fed. Case No. 13, 799), 23 Fd. Cases at 7×5 (C. C D Mass, 1855any event, from the decisions already cited, it is obvious that the power to examine the constitutional validity of treaties has been assumed by the Supreme Court.

nator HENDRICKSON. Thank you, Senator Langer. I will take until I have to go and then I will yield to the Senator from ois. ttorney General BROWNELL. If there is one argument which should ut to rest it is that there is need for this constitutional amendment use the Constitution does not protect against a treaty which might air rights of free speech, press, or religion. The argument stems n the wording of the first amendment which, unlike the rest of the of Rights, refers only to the Congress-that is, it reads:

ress shall make no law respecting an establishment of religion, etc. * The fact is that the first amendment is not limited to action of the gress. The courts have regarded it as prohibiting any action by Federal Government, or any of its branches, impairing freedom of ch, press, or religion, or the rights of assembly and petition. In cases arising under the President's loyalty order, Executive Order 9835, the first amendment was assumed to be applicable to Presitial action.33 The first amendment has been assumed to apply to ers of administrative agencies,34 to judicial proceedings punishing contempt of court,35 to acts of a territorial legislature, and to conduct of agencies for the District of Columbia.37

* * *

n the latter connection, only last year the Supreme Court said the first and fifth amendments "concededly apply to and rect the Federal Government," and held that an order the Public Utilities Commission of the District of Columbia ounts to sufficient Federal Government action to make the first fifth amendments applicable thereto.38

39

42

n addition, the liberties protected by the first amendment have all n held to be encompassed in the liberties guarded from invasion on part of the States by the "due process" clause of the 14th amendt. Thus freedom of speech, freedom of the press 40 including ion pictures," and freedom of religion, are all within the "due cess" protection of the 14th amendment. Hence they are preably within the "due process" protection of the fifth amendt, which is a clear limitation upon the whole of Federal govmental action. As Judge Edgerton stated in Joint Anti-Fascist ugee Committee v. Clark: 43

ead literally, the first amendment of the Constitution forbids only Congress to dge these freedoms. But as the due process clause of the 14th amendment nds the prohibition to all state action, the due process clause of the fifth t extend it to all Federal action.

t is unlikely that any court has ever held otherwise, and no amendnt of the Constitution appears to be needed to prevent abridgment

Joint Anti-Fascist Committee v. McGrath (341 U. S. 123, 135-136, 143, 199-200 1)), reversing on other grounds. Joint Anti-Fascist Refugee Committee v. Clark (177 d 79, 84, 87-88 (C. A. D. C., 1949)); Bailey v. Richardson (182 F. 2d 46, 59-60, 71-74 A. D. C., 1950)), affirmed by an equally divided court (341 U. S. 918 (1951)). National Broadcasting Co. v. United States (319 U. S. 190, 226-227 (1943)).

Toledo Newspaper Co. v. United States (247 U. S. 402, 419-420 (1918)) (overruled on r grounds, Nye v. United States (313 U. S. 33, 47-52 (1941)).

Davis v. Beason (133 U. S. 333 (1890)).

Pu' lic Utilities Commission v. Pollak (343 U. S. 451 (1952)).

343 U. S. at 461-463.

Gitlow v. New York (268 U. S. 652 (1925)).

Near v. Minnesota (283 U. S. 697 (1931)).

Burstyn v. Wilson (343 U. S. 495 (1952)).

Murdock v. Pennsylvania (319 U. S. 105, 108 (1943)); McCollum v. Board of Educa(333 U. S. 203 (1948)).

177 F. 2d 79, 87; see note 45, supra.

by treaty or executive agreement of the essential liberties guaranteed by the Bill of Rights or by the Constitution as a whole.

Enactment of an amendment confirming that which is already the law would be a most unusual act in our constitutional history. Except for the first 10 amendments, which for all intents and purposes were contemporaneously adopted as part of the original organic act, each of the subsequent amendments to the Constitution has been adopted to meet an existing unequivocal deficiency or need. Not only is there a paucity of legal materials to make a case for the amendment, but it is significant to note from the hearings held in the past and the literature on the subject that the sponsors of Senate Joint Resolution 1 are not seriously complaining about any treaty heretofore adopted by the United States. The complaints are addressed to the possibility that the United States might in the future consider adopting certain treaties or conventions, such as the human rights covenants, the freedom of information conventions, and the statute of an international criminal court, which are either in draft stage before certain bodies of the United Nations, or which have little chance of submission for adoption by the executive branch of this Government based on pronouncements already made by representatives of the United States.

But more than being unusual and unprecedented, an amendment of the Constitution, which purports to be confirmatory or declaratory of that which is already the law, may be unexpectedly damaging. Reckoning, as we must, with the justifiable tendency of courts and others to give an altering significant to an amendment of the organic act, let us consider proposed section 1 of Senate Joint Resolution 1. It was derived from the American Bar Association proposal of February 26, 1952, which reads as a whole:

A provision of a treaty which conflicts with any provision of 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 by Congress which it could enact under its delegated powers in the absence of such treaty. (S. J. Res. 43 follows this language.)

The whole of this proposal had the more far-reaching purpose of altering the Constitution as it was adopted in 1789, and interpreted in the intervening years. That purpose was and is to reduce the constitutional scope of treatymaking and the subjects of treaties, and to eliminate the self-executing effect of those treaties that can presently be self-executing, by requiring the legislative action of Congress but limited by the measurement of its delegated powers under the Constitution absent any treaty. The effect sought is a very definite change in the constitutional distribution of powers, by giving the Federal Government less than the whole of the treaty power and reserving part of it to the States. In other words, it would reverse Missouri v. Holland and predecessor cases and undoubtedly, among other things make of the 10th amendment to the Constitution a limitation on the treaty power.

Mr. SMITHEY. You are not referring to Senate Joint Resolution 1 at that point?

Attorney General BROWNELL. I am referring to the predecessor provision originally drafted by ABA on February 26, 1952, which is broader.

38 ABA Jour. 435 436 (May 1952).