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The Senate is confronted by no such dilemma in the legislat process. It has complete freedom of action in framing language the protection of constitutional rights. If a law does deny or abric recte. some constitutional right, the Supreme Court will strike it dov Never in our history, however, has the Supreme Court held any pro sion of any treaty unconstitutional. The reason is that article 12.00 paragraph 2, provides that laws of the l'nited States "shall be pilte la supreme Law of the Land" only if made "in Pursuance of the Cons Home tution. Treaties, on the other hand, become the supreme law of NA land merely by virtue of being made “under the authority of our United States, which is an entirely different thing.
This difference in language was noted in 1920 by the Supreme Cobrim in Missouri v. Holland (252 U. S. 416). That case upheld the valid of legislation by Congress to implement the Migratory Bird Tres - forum of 1916—legislation which the Court assumed was unconstitutionale the absence of a treaty. Mr. Justice Holmes intimated that “uno man the authority of the United States” might mean nothing more th: da the formal acts prescribed to make the convention.”
Opponents of any treaty clause amendment say, however, that t President and the Senate should be trusted not to make any tres which authorizes what the Constitution forbids. This argument veals a shocking ignorance of constitutional history. The Bill Rights was added to the Constitution because the people did not trithe President and the Congress with unlimited power. The Preside and the Senate, even assuming that they could foretell how a tres will be construed by the courts, are deserving of no greater trust. American people resent the argument that rights which they rega as God-given and inalienable can be alienated by the President two-thirds of the Senate present and voting.
In one case, the President and Senate deliberately achieved by tres a result which the Constitution expressly forbid. The Supreme Cou in 1923 held that the 18th amendment prohibited the importation intoxicating liquor under seal into the territorial waters of the Unite States, Cunard S. S. Co. v. Mellon (262 U. S. 100). To overcome th effect of the 18th amendment, President Coolidge negotiated in seci and the Senate in 1924 approved in secret, a treaty authorizing suuria importation on British ships. The validity of the treaty was chi lenged in one case which was dismissed on procedural grounds, and P. was never further interpreted.
So far I have discussed the need for section 1 of the joint resolutie si Section 4 places the same limitation on Executive agreements. Tu need for such limitation arises from the fact that the Supreme Corte has held that Executive agreements, even those not approved fort Congress, become the supreme law of the land. In United States Pink (315 U. S. 203 (1942)), the Court said:
A treaty is a “law of the land" under the supremary clause ** * of the Co stitution. Such international comparts and agreements as the Litvinov assig ment have a similar dignity (p. 230).
The Pink case involved the distribution of assets of the New Yoad branch of a Russian insurance company. In 1918 Russia nationalizmircan the business of insurance, but the State of New York refused to gi the decree any extraterritorial effect. No one questioned New York power to make that decision. In 1925, Pink, the New York supe autor
c. Lt of insurance, took possession of the insurance company's
Caims of domestic creditors were paid in full. The New fourt of Appeals directed payment of the balance to foreign
Cas the situation immediately before the Litvinov assignment.
creditors were entitled to the protection of the fifth amend2- Bith Russia and the United States were powerless to deprive
f that property. However, the Supreme Court held that an at between Franklin Roosevelt and Maxim Litvinov canct property rights otherwise protected by the fifth amendment
public policy of the State of New York. ":f Jastice Stone, for himself and Mr. Justice Roberts, dissented --Pais case. The Chief Justice assumed, however, that property
f American and foreign creditors could be divested by treaty
an Executive agreement approved by the Congress, although • lot willing to recognize such power in an assignment not **Triby either House of Congress.
Curtain countries would no doubt welcome a new Roosevelt**?!T agreement to make their confiscatory decrees effective in the - States, private-property rights to the contrary notwith
of of Senate Joint Resolution 1 would also prevent Executive 2.ts of the type made at Yalta. That need requires no elabora
* The President has spoken on that at a recent date. *** 3 of Senate Joint Resolution 1 would make treaties non-Inting in their effect on domestic law. At times, it is humanly “ww.ble for a Senator to know whether or not and to what extent **tras supersede Federal and State laws. In 1833, for example, opreme Court held to be self-executing a treaty which it had
-self-executing 4 years before. United States v. Percheman 4. 1 tl'. S. 1833)); Foster v. Neilson (2 Pet. 253 (U. S. 1829)). 2 celebrated Fujii case in California is a more recent reminder sont les may have far-reaching and unintended consequences as a
the American Constitution's unique treaty supremacy clause. •ztermediate California court held that the human rights pro.es of the U. N. Charter, articles 55 and 56, were self-executing. TC kifornia (217 P. (20) 418, 218 P. (2d) 595 (1950)). The
Court of California held they were not (242 P. (2d) 217 ... The issue is still in doubt. If the Supreme Court of the *: Nates should adopt the reasoning of the lower California Stands of Federal and State laws will be nullified. Of the ators who voted for the U. N. Charter in 1945, I doubt if one P any such result. ut case was discussed at length, as the chairman and members
mittee will remember, on the floor of the Senate by former
Donnell of Missouri. I remember very definitely the discus** at took place on the floor that day. P...:p Jessup and like-minded international lawyers contend
C. N. Charter can be modified by interpretative resolutions in by a majority vote of the General Assembly. The late Gen
vesel of the Ů. N., Abraham Feller, conceded that the U. X. * does not mean today what it meant in 1945. All treaties "g domestic law must be made non-self-executing to avoid unin
tentional alteration of the rights of the American people under Fede and State laws.
So far, I have discussed sections 1, 3, and 4 of the joint resoluti The language of these sections is paralleled by comparable langua in the American Bar Association draft. With the addition of just c word I could support the American Bar Association proposal, ano 10 have discussed this with the representatives of the American k already and asked that they give further consideration to it. I wou add to the second sentence of section 1 of the ABA proposal the wo "multilateral” before the word "treaty.” With that addition, the would be no difficulty in making bilateral treaties of friendship, co merce, and navigation. Even so, I am inclined to prefer the langua: I
T of Senate Joint Resolution 1 with such improvements as this costa mittee may be able to make. For example, the word “protected” migma be better than "enumerated” in sections 1 and 2. That suggestion 1.14 for the purpose of protecting those bilateral agreements which a (tar necessary for the relationships, the amicable relationships, of on Nation to other nations. One example might be the Migratory Bir Treaty that I mentioned a moment ago. Another might be the rigly to sue and be sued in the courts of the country. Another might be truth rights of ownership of property. Another might be, and I think prori this because it is presented, the right to use automobile tags of tijela respective countries in this country in consideration of our right toch do the same thing in the other countries. This is particularly impo tant with so many of our boys in foreign countries at the present tim
I now come to section 2 of the joint resolution, and I particular wish that the representatives of the American Bar Association wou give consideration to this section. There is no comparable language is (nie The American Bar Association proposal. In my judgment, section is necessary for the preservation of American sovereignty.
Section 2 attempts to solve the deep-seated problem which Judg Florence E. Allen of the Sixth Circuit Court of Appeals has describe in these words and I will quote in just a minute.
Judge Allen is in the Sixth Circuit Court of Appeals. She serve for many years on the Supreme Court of the State of Ohio and is very able judge and has given extended consideration to these intei national treaties, particularly those in regard to those of ILO.
Mr. McGrath is here, and I think he will give particular attentio to that at a later moment. I quote from her book. By the way the that book is quite a comprehensive one and is well worth reading b for any member of this committee. It is thoroughly explorative of th ILO Treaty. She particularly pays attention to the internationa labor treaties which are being drafted at the present time.
Mr. HOLMAN. Mr. Chairman, we will be glad to furnish copies o that book at the expense of the American Bar Association. It is ou very small book which you can put in your pocket.
Senator BRICKER. Thank you, Mr. Holman. I have just one copy of it and I have not been able to find any others.
I quote now: The root of the difficulty lies in the lack of demarcation between domestic and international legislation. A line must be drawn beyond which the inter: national organizations know they cannot pass. The United Nations should bent draw the line in a resolution of the General Assembly and should facilitate a judgment on the question by the International Court.
. In fact Cated States should draw the line by amendment to the Federal Con
(Allen, The Treaty as an Instrument of Legislation (1952) pp. 104,
ce of demarcation between international affairs and matters :-ziv domestic concern was drawn by this language in article II, la crapb 7, of the U. N. Charter: Lage contained in the present charter will authorize the United Nations ***De in matters which are essentially within the domestic jurisdiction
-T. X. and its specialized agencies have not respected the limi
on their authority. The members of this committee will reir at the time the United Nations Charter was under considera..*** that clause was debated very extensively. I think there was
er presented at the time by Secretary Stettinius to the effect Let'nited Nations Charter would be limited in their considera
ai never would they in any way interfere with domestic rights. KHLMAx. I have a copy of that letter. sior BrickER. I doubt very much, Mr. Chairman, if the treaty ever have been ratified by the Senate of the United States if ad not been this provision and the assurance of the Secretary zie. The specialized agencies have prevented the International
of Justice from deciding what matters are essentially within Si estic jurisdiction. As Judge Allen makes clear in her book, ..p of the world is endangered by the U. N.'s ambition to super21.1 control the purely domestic affairs of its members. Section or resolution makes article II, paragraph 7, of the U. N. Charter
e insofar as the United States is concerned. In fact, it is as the same language that is used in the Charter.
man rights essentially within the domestic jurisdiction? Dr.
Insup and many others who have represented us at the U. N. -30." If that is true, then nothing is essentially within the ne jurisdiction. Those who oppose the purpose of section 2
were that the relationship between the American people and TL Government is not purely a domestic matter. *) would prevent United States participation in world or
si government by treaty or by less formal agreements. In this - I do not believe the American Bar recommendation goes far
Philip Jessup, for example has explained how to use—and ..527 skillful at this, Mr. Chairman—the U. N. as an instrument
i government without raising any conflict with the Constitu<w.shout invading any of the reserved powers of the States. -Lave suggested that the United Nations be given the power to :115 duals. There would seem to be no conflict with the Constitu:
the power to tax were shared with the Congress. Moreover, Jer to tax would not invade the reserved powers of the States. Priess, the power of taxation is a matter essentially within :e jurisdiction and would, therefore, be prohibited by the lan
section 2 of Senate Joint Resolution 1. - ble spokesmen for the United World Federalists and the
c Union movement realize that the spirit of the Constitution, De letter, requires that the United States participation in world cal government be authorized, not by treaty, but by constitu27endment. In fact, when I debated the Atlantic Union issue
* * *
last year with former Justice Owen Roberts, he endorsed my amer. "A WOL ment. If you remember, Justice Roberts was a former member and the Supreme Court who retired and he has now taken the leadership in the Atlantic Union movement. This is what he said in that debat Kuate
In the United Nations, they've set up committees which are just committed to appointed by the United Nations Organization. Those committees are sub 10" ting treaties that affect the conduct of individual citizens in the countries. N my liberties and my rights can't be affected except I have a chance to vote, a I don't want any ad hoc committee specifying what my rights are agree entirely with the Senator.
That was in the formal debate that we had. And prior to the tii**a! that we began this discussion he told me definitely that he felt th 2017 the amendment which we had submitted then should be adopted a trul the United States, recognizing always that what he was seeking hitive to to be done by constitutional amendment and should not be done #1): indirection or stealth as they are attempting now through certaines of the subcommittees of the United States.
a Mr. HOLMAN. That could be done by constitutional amendment.
Senator BRICKER. By constitutional amendment rather than what ist? treaty.
of course, the State Department of the previous administrati, z contended that the U. N. draft Covenants on Human Rights we pura great humanitarian treaties, and that the American people shou a the poi cheerfully submit their political, civil, and economic rights to Unit iw und Nations definition, supervision, and control. But Dr. Charles Malik, of Lebanon, who succeeded Mrs. Roosevelt a year ago as Chai zat the ] man of the U. N. Human Rights Commission, has warned that rece si can amendments to the Human Rights Covenants "responded for the mowers to it part more to Soviet than to western promptings.”. He attribut zof pow this shocking fact to a “materialistic revolution” within the Hum: setare da Rights Commission brought about by, “the increasing impact Plane Marx.” Then he went on to say it was due further to the unimagin.smite tiveness of the western countries. That will be found in Malik, Hums Rights in the United Nations, United Nations Bulletin, September 1952.
Let us proceed to another aspect of this treatymaking authorit The International Labor Organization is one of the U. N.'s specializi agencies. I might say there are some 200 treaties at the present tin being put into form by these various subagencies that will be su mitted ultimately, that is the purpose of it, to the United States f ratification.
The modest ambition of this International Labor Organization to become the economic overseer of all humanity. The ILO Confe ence is officially described as a “world parliament for labor and soci questions.” ILO treaties deal with such purely domestic problems social security, minimum wages, compulsory health insurance, ar labor-management relations. There is very little in all these treati which "conflicts” with the Constitution, or which encroaches on Stat rights under the 10th amendment. Thus they would not be pr hibited by the American Bar Association proposal, I fear. Neverth less, ILO treaties of the type mentioned concern subjects in whic no international organization has any legitimate concern of any kin Korld or character.
Motherhood would become a subject of international concern t Macei the terms of a treaty already adopted by the ILO Conference. To the D