Second, there is merit in placing "a treaty" and "other international agreement" together in section 1 of the substitute. An objective of Resolution 1 is that neither a treaty or other agreements conflict with the Constitution. The first sentence of section 1 of the substitute spells that out succinctly without digs, suspicions, or demotion of the President.

Third, there is merit in inviting the judiciary to consider cases involving conflict in the matter. This may not require the judiciary to alter their adopted views on political questions, but it invites and encourages their help where much help may be needed.

Fourth, there is also merit in having votes entered on the Senate Journal. This should guard against hasty action, particularly in cases which may seem relatively unimportant but may be far reaching

in effects.

Fifth, section 3 of the substitute restricts the effectiveness of a treaty as internal law only where the Senate so provides in giving its consent to ratification. This Nation has held its treaties in the highest regard as a part of the supreme law of the land. Section 3 permits continuance of this, whereas Resolution 1 would permit ratification of a treaty and subsequent emasculation. This would demote the President and Senate and promote the House.

Thank you for your courtesy in requesting my views.
Respectfully,

MARTIN TOLLEFSON, Dean.

18. LEON WALLACE, DEAN, SCHOOL OF LAW, INDIANA UNIVERSITY

INDIANA UNIVERSITY,
SCHOOL OF LAW,

Hon. ALEXANDER WILEY,

Bloomington, Ind., November 5, 1953.

Chairman, Committee on Foreign Relations,

United States Senate, Washington, D. C.

DEAR SENATOR WILEY: ***.

It appears that the Knowland substitute either restates what the Supreme Court has, without exception, said that the law has always been, or if it implies more than that, its meaning is obscure.

The need for a strong power to make and enforce treaties was one of the most important considerations leading to the Constitutional Convention of 1787. It is said in Madison, Journal of the Federal Convention (Ed. E. H. Scott, Chicago: Scott, Foresman & Co. (1898) p. 47):

In certain cases the authority of the Confederacy was disregarded, as in violation not only of the Treaty of Peace, but the treaties with France and Holland; which were complained of to Congress. In other cases the Federal authority was violated by treaties and war with Indians, as by Georgia.

In the very first discussion of the main business of the Convention, Edmund Randolph stated as one of the defects of the Articles of Confederation the fact that Congress "could not cause infractions of treaties, or of the law of nations to be punished" (Madison, Journal, p. 60). Justice Story later, in Commentaries on the Constitution of the United States (Boston: Hilliard, Gray and Co.; Cambridge

Brown, Shattuck and Co. (1833) vol. 1, p. 175) summed up the problems of Congress under such an instrument as the Articles of Confederation thus:

They may make and conclude treaties, but can only recommend the observance of them.

The whole history of the period is filled with accounts of difficulties over treaties; noteworthy among them were John Jay's perplexities in trying to work out the various problems with Spain.

The action of the Constitutional Convention in stating that treaties shall be the supreme law of the land, and that they shall be made by the President with the consent of two-thirds of the Senators present, was taken after full and numerous discussions and with careful consideration (see Madison, Journal, pp. 60, 62, 68, 69, 71, 73, 161, 166, 185, 186, 189, 190, 246, 364–365, 445–446, 454, 455, 463, 486, 502–503, 531, 532, 593, 596-598, 610, 655-656, 669, 680, 682-683, 686, 687, 709, 712, 733, 758,761). It was decided that it would be safe to entrust this enormous power to the Senate, because that body would be composed of able and experienced men, and the President, being chosen by all the people, would represent the interests of the entire Nation, and check any tendency of Senators to consider local interests. It was decided that the executive power was best fitted to initiate treaties and conduct negotiations, which call for singleness of purpose and flexibility of action.

To say that the treatymaking power crept into the Constitution without its makers being aware of the importance of this provision, is to argue without reference to the facts.

It has been stated that

some early patriots expressed fear, prior to the adoption of the first 10 amendments to the Constitution, that abusive exercise of the treaty power could result in the infringement of the liberties of the people (Rept. No. 412, 83d Cong., 1st sess., p. 3).

A quotation from Patrick Henry is adduced in support of this statement. That eloquent orator was indeed opposed to the arrangement for the treatymaking power. He was opposed, also, to the Constitution in part and in whole. Congress, he said, would have more than a tyrant's powers. The President would use the Army to make him a dictator. "The purse is gone; the sword is gone"-and the very scales of justice are in danger. This plan "squints toward monarchy"— "your president may easily become king. *** I would rather infinitely have a king." On the Constitution as a whole his verdict. was: "I look on that paper as the most fatal plan that could possibly be conceived to enslave a free people" (Grigsby, Hugh Blair, The History of the Virginia Federal Convention of 1788; Collections of the Virginia Historical Society, New Series, (1890) vol. I, pp. 113, 116, 117, 118, 155, 158, etc.).

Those who would look to Patrick Henry as their champion for preserving rights and liberties under the Federal Constitution have picked the wrong advocate. If we are now to amend the Constitution to allay the fears of Patrick Henry, we shall have to jack up the title and restore an old and discredited vehicle underneath.

Other attacks were made. They were made and they were met. The most famous discussions were those of Jay and Hamilton, in the Federalist Papers, Nos. 64 and 75. In the latter, we find a careful discussion of the proposal, made and abandoned in the Convention

(Madison, Journal, p. 680) by a vote of 1 to 10, that the House of Representatives should share in the treaty-making power.

Accurate and comprehensive knowledge of foreign politics; a steady and systematic adherence to the same views; a nice and uniform sensibility to national character; decision, secrecy and dispatch, are incompatible with the genius of a body so variable and so numerous. The very complication of the business, by introducing a necessity of the concurrence of so many different bodies, would of itself afford a solid objection (Hamilton, the Federalist, No. 75, at par. 6).

There were many other arguments. Here is a statement by James Iredell, of North Carolina, in 1788 which might have been written yesterday:

It seems to result unavoidably from the nature of the thing that when the constitutional right to make treaties is exercised, the treaties so made should be binding upon those who delegated authority for that purpose. If it was not, what foreign power would trust us? And if this right was restricted by any such fine checks as Mr. Mason has in his imagination, but has not thought proper to disclose, a critical occasion might arise, when for want of a little rational confidence in our own Government we might be obliged to submit to a master in an enemy (Ford, Paul L., Pamphlets on the Constitution of the United States, Brooklyn, N. Y. (1888) Answer to Mason's Objections by Iredell).

The idea, as promulgated by some of those at present seeking a constitutional amendment, that early treaties existed in some amorphous area where only the Nation, and not individuals, were affected by them, is erroneous. Among the earliest cases decided by the Supreme Court were those of two types:

Í. Cases under which individual debtors were obliged to pay creditors in Great Britain for debts contracted before the Revolution, even though they had paid the amounts into their State treasuries under sequestration acts, because the treaty (the Peace Treaty of 1783) says there shall be no legal impediment to the payment of such debts and "the treaty is the supreme law of the land" (Ware v. Hilton, 3 Dall. 199 (1796); Hopkirk v. Bell, 3 Cranch 454, 2 L. Ed. 497 (1806)).

II. Cases where individual ownership of land was affected by treaties with other countries in regard to alien ownership. These include Chirac v. Chirac (2 Wheat. 259, 275, 4 L. Ed. 234 (1817)). These treaties include several pre-Constitution treaties: with France, 1778; with the Netherlands, 1782; treaty with Sweden, 1783; treaty with Denmark, 1783; treaty with Prussia, 1785. Treaties were held to be the supreme law of the land and to supercede conflicting State laws (see Boyd, Willard L., Treaties Governing the Succession to Real Property by Aliens, 51 Mich. L. Rev. 1001 (1953)).

Neither of these types of treaties could be made under the so-called "which" clause of the proposed current amendment.

The attempt to make it appear that the decision in Missouri v. Holland was a turning point, where earlier safeguards were abandoned and new reasoning gave to treaties a monstrous power which they had not possessed before, is a distortion in which two opposing factions have joined. In his opinion in Missouri v. Holland, Justice Holmes cites the clear line of cases which extend back to the earliest days of the Supreme Court, and he specifically states that "We do not mean to imply that there are no limits to the treatymaking power," a part of his opinion conveniently forgotten by the adherents of both. groups.

The alarm currently felt over this supposed new menace to our liberties was engendered by one of these groups, the extremists who attempted to make use of Missouri v. Holland in claiming that the preamble and articles 55 and 56 of the United Nations Charter, as a treaty, were self-executing, and took effect as domestic law immediately upon the ratification of the charter. They have made this claim in spite of the fact that articles 55 and 56 under the heading "Chapter IX: International Economic and Social Cooperation" promise the indefinite action "to promote" such vague and generalized benefits as higher standards of living, full employment, and conditions of economic and social progress and development-international cultural and educational cooperation and "(c) universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion."

It would be difficult to interpret such language as a self-executing treaty bringing about specific results, even without article 2, section 7, which says:

Nothing contained in the present charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the members to submit such matters to settlement under the present charter.

The extreme reasoning of this one group called into being the other group, which, instead of studying and emphasizing the safeguards which already exist, in our Constitution and the opinions of our Supreme Court, have sounded the alarm that our liberties are in danger and that nothing less than a constitutional amendment providing for a complete reversal of the treatymaking process which has served us for 166 years will suffice to protect us. These two groups are the true adversaries in this present conflict.

At what date the theory that our court decisions should be based on the recognition of the Charter of the United Nations as a selfexecuting treaty was first advanced is not certain. Its proponents cite a Canadian decision (re Drummond Wren (1945) O. R. 778) in which Mr. Justice J. K. Mackay quoted the charter, "along with somewhat analogous statutes and other authorities of Canada itself to invalidate a covenant in a deed that discriminated against Jews." An article (Sayre, Paul, Shelley v. Kraemer and United Nations Law, 34 Iowa Law Review 1 (1948)) argues for this point. Another article (Kelsen, Limitations on the Functions of the United Nations, 55 Yale L. J. 997, 1006-7, 1007, n. 10 (1946)), suggests this theory, and a Comment in 1947 (56 Yale L. J. 1017 (1947)), declares that "it is at least probable that this document-having the force of a treaty-may be incorporated into the body of American municipal law." This comment goes so far as to state:

It is conceivable that the President may make an agreement with the mother country permitting reciprocal ownership of land. Such an agreement would override any alien land laws then existing.

On January 5, 1948, the American Association for the United Nations filed a brief as amicus curiae in the case of Shelley v. Kraemer, advancing the theory—

that articles 55 and 56 of the United Nations Charter were self-executing, and, as such, required the invalidation of racial restrictive covenants (Rept. No. 412, 83d Cong., 1st sess., pp. 8-9).

However, the Supreme Court did not mention the United Nations in making its decision, whereupon, although the conclusion it reached was the same one advocated under this theory, Prof. Paul Sayre wrote an article published in the Iowa Law Review denouncing the Court for its failure to apply the charter, asserting that—

Here, in effect, we broke a solemn treaty of this Government.

It is seldom that the words of a college professor produce such manifestations of alarm as resulted. They are quoted twice in the majority report of the Senate Judiciary Committee (Rept. No. 412, 83d Cong., 1st sess., pp. 9 and 10) which places them in the category of ideas which "contain the festering germs of destruction * * beyond the antiseptic properties of the first amendment" (p. 6). Instead of being frightened by Professor Sayre's thesis, let us examine it. On his third page he states that the preamble and article 55— under our Constitution have the same authority as the Constitution itself. since as part of a treaty they have authority equal to the Constitution. Indeed, the Supreme Court has expressly held that one method of extending the Federal Constitution is entering into a valid treaty under which new rights and duties are created.

At this point, a footnote cites the famous case of Missouri v. Holland and observes:

Mr. Justice Holmes, speaking for the Court, placed his definition definitely on the ground that the protection of migratory birds was within the treatymaking power; hence it could not be repugnant to any part of the Constitution and constituted the supreme law of the land as part of the Constitution. [Italics supplied.]

Before we quarrel with Mr. Justice Holmes, it is suggested that we examine the opinion in question (it is very short) and see whether we can find any language which, either in fact or by implication, states that a treaty is "part of the Constitution" or that entering into a valid treaty is a method of "extending the Federal Constitution."

Again Professor Sayre refers to the "application of the substantive law of the United Nations Charter, which, as we have seen, is a treaty, and hence is a part of our Constitution itself." And "the United Nations Charter is now not only part of our Constitution," "the United Nations Charter by unquestioned law is a treaty of this Nation and hence also the supreme law of the land as a legal part of our Constitution." [Italics supplied.]

The fallacy of these statements should be apparent. No treaty becomes a part of the Constitution any more than any Federal law does

So.

The Constitution has only been amended by amendments passed by two-thirds of both Houses of Congress and ratified by three-fourths of the States. Only these have become a part of the Constitution. Under the Constitution, a treaty, like any Federal statute, becomes a part of the supreme law of the land, "anything to the contrary in the Constitution or laws of any State to the contrary notwithstanding." In the entire history of a treaty, from its inception, possible modifications, necessary approval, final ratification, and often its eventual termination, the action neither of the House of Representatives nor of the separate States is necessary for either the completion or the termination of the agreement. The mere fact that a treaty might require enabling legislation or subsequent appropriation in order to carry out its terms does not mean that the treaty may not be entered