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implementation of treaties, on every subject and to make that legislation the law in every State, town, and village in the country regardless of local law o local constitutional provision. It would insure some meaning being left in the tenth amendment.

Is amendment necessary?

The memorandum of the Department of Justice, at page 17, states that " is incumbent on the proponents of such a limitation ('any constitutional limita tion of the scope of treaties') to show a definite and compelling need for it.' Perhaps it would be well to recall that the original Bill of Rights was not the result of "a definite and compelling need for it" to protect against the nev Constitution, for there had been no experience under that Constitution demon strating any such definite and compelling need. The Bill of Rights was pre cautionary. It was born of desire not to see precious rights and freedoms pu at the hazard of being interfered with. It was the possibility not the actualit which produced one of the greatest safeguards of human rights that the worl has yet known.

So, this challenge of the Department of Justice creates no issue. Its position is that it is necessary to wait until the horse is stolen before putting a lock of the stable door.

But, in today's situation, not only is there just cause for apprehension. Ther is real cause for alarm.

The United Nations Charter is one of the most far-reaching treaties that thi or any other nation could enter into. But it was framed at San Francisco an signed in approximately 2 months time. It was subjected to but 4 days of forma hearings by the Senate, which gave its advice and consent to ratification month and 2 days after it was signed." There was neither time nor opportunit for the people to study, debate, and digest its 111 articles and the 70 articles o the Statute of the International Court of Justice.

The charter contained a provision (art. 2, sec. 7) which provided tha nothing contained in the Charter should authorize the United Nations to i tervene in matters which are essentially within the domestic jurisdiction any state nor require the members to submit such matters to settlement unde the Charter.

It seems obvious that without such a clause the United States would neve have ratified that treaty.

Very shortly it became apparent to the most casual observer, however, tha this was a clause of dubious meaning-or at least was claimed to be.

Mr. John P. Humphrey, while Director of the Division of Human Rights o the United Nations, outlined the situation thus:

"What the United Nations is trying to do is revolutionary in characte Human rights are largely a matter of relationships between the state and ind viduals and, therefore, a matter which has been traditionally regarded as bein within the domestic jurisdiction of the states. What is now being proposed is,

effect, the creation of some kind of supranational supervision of this relationshi between the state and its citizens."

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It has been pointed out already (supra, point I) that Mr. Moses Moskowit in the April 1949 number of the American Bar Association Journal, defende the "revolutionary” idea of "supranational supervision" of the relationship of state to its own citizens. Not only that, but he attempted to “reason away" th limitation on the United Nations with respect to domestic affairs (Charter, art. sec. 7) by saying that perhaps the correct position would be that once a matt becomes the subject of regulation by the United Nations that subject ceases to be matter "essentially within the jurisdiction of the member states." He asserte what there is no reason to doubt, that that view represented the official view that body.

In other words, article 2, section 7 of the Charter means nothing whateve Truly a long road has been traveled since Alexander Hamilton expressed h views on treaty power.

The substance, if not the language, of Mr. Moskowitz's thesis has been announc by our own Government when it stated in an official publication of the Sta Department with a foreword by the President of the United States that: "There is no longer any real distinction between 'domestic' and 'foreig affairs."

The Federal Convention of 1787 commenced May 14. 1787, and adjourned Septemb 17, 1787 (Ferrand. vols. 1 and 2). a period of over 4 months. The Constitution did r become effective until March 4. 1789, or approximately 2 years after the convention s 38 Annals of the American Academy of Political and Social Science, January 1948,

This pronouncement was made in 1950, only 5 years after the State Department pated at San Francisco in 1945 in framing article 2, section 7 of the Charter. In footnote 33, at page 26, of the Department of Justice memorandum, it

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Smilarly the provisions of the Convention on Human Rights relating to and political rights and those of the Convention on Freedom of Infor4ton would, insofar as they affect State activities, seem to come within the er of Congress to enforce by legislation, the provisions of the fourteenth iment;

Even if it be assumed that all of the civil and political rights referred to in *Covenant on Human Rights and in the Convention on Freedom of Informa3 are protected against invasion by the States under the fourteenth amendat, this proposition of the Department of Justice overlooks the basic fact at entering into such multilateral treaties would, under the doctrine of Misvri v. Holland, lay a broad base for direct plenary Federal legislation coning those rights, whereas, with respect to the fourteenth amendment, the reme Court has said: "

If the principles of interpretation which we have laid down are correct, as t deem them to be (and they are in accord with the principles laid down in - cases before referred to, as well as in the recent case of United States v. -27 (106 U. S. 629)), it is clear that the law in question cannot be sustained any grant of legislative power made to Congress by the fourteenth amendThat amendment prohibits the States from denying to any person the equal "tection of the laws, and declares that Congress shall have power to enforce, 4ppropriate legislation, the provisions of the amendment. The law in queswithout any reference to adverse State legislation on the subject, declares it all persons shall be entitled to equal accommodations and privileges of 2.;ublic conveyances, and places of public amusement, and imposes a penalty 2 any individual who shall deny to any citizen such equal accommodations - privileges. This is not corrective legislation; it is primary and direct; it immediate and absolute possession of the subject of the right of admission public conveyances, and places of amusement. It supersedes and disLes State legislation on the same subject, or only allows it permissive force. res such legislation, and assumes that the matter is one that belongs to a domain of national regulation. Whether it would not have been a more tre protection of the rights of citizens to have clothed Congress with plenary over the whole subject is not now the question. What we have to decide hether such plenary power has been conferred upon Congress by the four-hamendment; and, in our judgment, it has not."

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De Draft Covenant on Economic, Social, and Cultural Rights" (one of the draft covenants into which the much talked of Covenant on Human Rights en divided) contains as the first paragraph of article 1 the following: 1. Each state party hereto undertakes to take steps, individually and through ational cooperation, to the maximum of its available resources, with a to achieving progressively the full realization of the rights recognized in evenant by legislative as well as by other means."

it a single economic, social, or cultural right recognized in the covenant. fre, but that would be the subject of Federal legislation for everyone in the d States. These include: the right to work as defined (art. 5); the right and favorable conditions of work (art. 6); the right to form and join national, and international trade-unions (art. 7); the right of everyone to eurity (art. 8); adequate food, housing, and clothing (art. 10); an adestandard of living and the continuous improvement of living conditions 11: the right to the enjoyment of the highest standards of health (health complete physical, mental, and social well-being, and not merely the ab

* of disease or infirmity") (art. 12); education (art. 13). The need for 2. protection to motherhood and children and the widest possible protection family is "recognized" by the states parties to the covenant (art. 9).“ e 3, the substance of which was originally urged by the United States erica, reads as follows:

Rights cases. 109 U. S. 3.

ted Nations Bulletin. September 1, 1952, p. 253.

e text of the draft covenant should be consulted for the precise wording of the there recognized. They are couched in extremely broad, not to say vague or

terms.

ate Department Bulletin, June 25, 1951, p. 1004.

"The states parties to this covenant recognize that in the enjoyment of thos rights provided by the state in conformity with this covenant, the state ma subject such rights only to such limitations as are determined by law only insofa as this may be compatible with the nature of these rights and solely for th purpose of promoting the general welfare in a democratic society." [Emphasi added.]

If the Federal Government were seeking complete and exclusive control ove the citizen and his relations to the Government and his fellow citizens in the fields covered by this draft covenant, it would be difficult to devise a more complete charter for Federal treaty law.

Furthermore, those controls would not longer be a matter of national concer alone. They would become matters of international cognizance.

In a joint report on progress in the study of the constitutional aspects of international treaties to the house of delegates of the American Bar Associa tion by the committee for peace and law through the United Nations and the section of international and comparative law which appears as appendix A to the September 1, 1951, report of the former committee, it was stated (p. 36): "It appears that substantial agreement exists on the following major points:

"2. An international treaty cannot be safeguarded by a clause in the treaty or by reservation or understanding against the expansion of the limited power of the Federal Congress in the United States to such extent as necessary to fulfill the obligation under the treaty if Congress determines to exercise such power.

"No action of the parties or of the Senate and the President at the time of ratification of a treaty can take away the constitutional power of Congress to execute the treaty and to fulfill the national obligation under the treaty if Congress decides to do so."

These considerations alone would be entirely sufficient to demonstrate the need for constitutional amendment. They are cause for greater alarm, it is submitted, than the original States had when they amended the Constitution to include our Bill of Rights. Indeed they show the definite and compelling need for amendment that the Department of Justice insists must be shown. The Fujii case was affirmed by the supreme court of California on April 17, 1952, after being under consideration for almost 2 years. While the court distinctly held that the provisions of the United Nations Charter involved (the preamble, arts. 1, 55, and 56) were not self-executing and did not supersede domestic law (pp. 620-622), the majority opinion stated (p. 622):

"The Charter represents a moral commitment of foremost importance, and we must not permit the spirit of our pledge to be compromised or disparaged in either our domestic or foreign affairs."

What weight that consideration was given by the majority of the court (the decision was by a sharply divided court) is difficult to evaluate.

One dissenting judge stated:

"The majority opinion, I think, is not motivated by an effort to find the law, and to uphold it as found. I think it stems more from the strong social views of the justices who write it and from their desire to make the law what they think it should be" (Schauer, J., p. 639).

Be that as it may, the affirmance was placed squarely on the fourteenth amendment, the court saying that decisions of the Supreme Court invited a reexamination of the constitutional issues involved. In holding that California's alien land law violated that amendment the court admittedly went contrary to the earlier holdings not only of that same court but also of the Supreme Court of the United States. (See case list, 217 P. 2d 481, 483.)

Concern over the Fujii case centers in the attitude and views reflected in the opinion of the district court of appeal, second district, division 2 (217 P. 2d 481). It felt itself precluded by the earlier cases from holding the statute unconstitutional (p. 484). It placed its decision squarely on the United Nations Charter "an authority more potent than the constitution of this State" (p. 484). It stated that the position of the country "forbids trafficking in innocuous generalities but demands that every State in the Union accept and act upon the Charter according to its plain language and its unmistakable purpose and intent."

The preamble and articles 1, 55, and 56 of the Charter were examined as well the Universal Declaration of Human Rights, various articles of which were and the court stated:

This declaration implements and emphasizes the purposes and aims of the Ized Nations and its Charter" (p. 488).

"A perusal of the Charter renders it manifest that restrictions contained in de Alen Land Law are in direct conflict with the plain terms of the Charter Love quoted and with the purposes announced therein by its framers. It is atible with article 17 of the Declaration of Human Rights which proclaims night of everyone to own property."

e rebearing granted (218 P. 2d 595) in speaking of the Declaration of Human Le's the court said, in part:

There is no intimation in the opinion that the declaration is a treaty, for ** tot, or that it has any binding force on the United States or any State or data, subdivision thereof. Reference was made to that document, as clearly * by the opinion, as well as to the address of the President to the Senate, as sally emphasizing the purposes and guarantees of the Charter."

Quincy Wright in his article National Courts and Human Rights in 45 Berican Journal of International Law says:

It is reasonable to infer from the phrase 'in cooperation with the organizaCharter, Article 56] that the Members, in fulfilling their pledge to take -rate action,' SHALL be guided by the purposes stated in the Charter and in the more detailed interpretation of the meaning of those purposes and the priate methods of achieving them, which organs of the United Nations have mended. Consequently, the terms of Article 56 amply support the opinion ** the court in the Fujii case [the District Court of Appeal] that the Universal aration of Human Rights, while not a treaty, constitutes an authoritative. pretation of the words 'Human rights and fundamental freedoms' in Articles and 56 of the Charter" (p. 72). [Brackets, capitals, and emphasis added.] Ze mandatory verb “shall," which we have capitalized, is significant.

doubtedly, the organs of the United Nations are also entitled to interpret danes of the members of the United Nations, to define the meaning of human and fundamental freedoms, and to establish procedures for promoting eral respect for those rights and freedoms. Such action in some cases, may togatory upon, and, in some cases, only recommendatory to, the members. far as organs of the United Nations have acted, whether by interpretative tons, by implementation of procedures of the Charter, or by achieving ae by States of concrete obligations as proposed "in the so-called Cove2 of Human Rights, the members, pledged to act in cooperation with the * Nations, are bound to be guided by, or at least to consider, this action" 77412

United Nations Charter was ratified in 1945.

Delaration of Human Rights was adopted by the General Assembly of ted Nations on December 10, 1948.

Setary of State Stettinius stated in July 1945 to the Foreign Relations tee of the Senate during the hearings on the United Nations Charter: use the United Nations is an organization of sovereign states, the GenAssembly does not have legislative power. It can recommend, but it cannot its recommendation upon the member States" (hearings, p. 218). Deenelusion is obvious. Our supreme law may today be made for us by -, to which we adhere. But we are getting to a point in this process where contended that an international body in which we have only one vote out and which has no legislative power can subsequently advise us as to obligations are and consequently what our domestic law is as a result

'"*a* treaty. The danger of following such a course is apparent.

draft covenant on civil and political rights (the other branch of the old * Rights Covenant, United Nations Bulletin, September 1, 1952, p. 255) also rention. This draft covenant deals in the civil and political field with 1 and general category of matters and would constitute a wide basis for treaty law.

wever, the Commission on Human Rights decided last spring to ask the and Social Council to instruct it to complete its work at its 1953 so that neither draft covenant is definitive (State Department Bulletin, 1952, p. 20).

Attractive analysis by Prof. William Fleming of the older draft Covenant an Rights appeared in 37 American Bar Association Journal at pages 739 $15 entitled "The Danger in the Covenant on Human Rights."

It has been stated:

"For us to serve notice that we would not today accept our own Bill of Right if it were presented to us as an international document is a statement whic should make every one of us blush." 43

This statement representing as it may, a point of view entertained by many fails to take into account the difference between what is essentially and solel; the affair of the United States, for our own guidance and protection and subjec to the interpretation of our own courts and making those same matters th affair of numerous other countries, subject to their claims of meaning and, i their ideas and ours did not coincide, perhaps subject to interpretation by th International Court of Justice or some other international body. The remar] quoted above strongly illustrates the divergence between matters which ar thought of as subject to the treaty power today and those considered as such in 1787.

45

Mention has already been made of the proposed convention for the estab lishment of an international criminal court "-not a court to try only wa crimes; not a court to try international disputes between nations: 5 but on which could try an American citizen (if we should ratify such a convention and confer jurisdiction upon the Court) outside the United States for an act don here and alleged to constitute an international crime, without indictment by a grand jury and without trial by jury, in the face of the provisions of amend ments V and VI to the Constitution relating to indictment by a grand jury and a speedy and public trial by an impartial jury of the State and district wherein the crime shall have been committed.40

Under article I section 8 Congress can clearly provide the definition of and the punishment for "offenses against the law of nations." But such a statute would necessarily create a crime under Federal law-not an international crime and punishment for such a crime so created would be surrounded by all the con stitutional safeguards. The difference is obvious.

The Senate of the United States knows that there is pending before it a treaty with one foreign nation, the provisions of which, if ratified, might well apply to many other nations under most-favored-nation clauses. That treaty provides:

"Nationals of either party shall not be barred from practicing the professions within the territories of the other party merely by reason of their alienage but they shall be permitted to engage in professional activities therein upon compliance with the requirements regarding qualifications, residence, and com petence that are applicable to nationals of such other party."

99 47

This would apply to attorneys and counselors at law, and is believed to be the first provision of its kind in any proposed treaty. It would. it is true. require an alien candidate for admission to the bar of any State or of any Federal court to comply with the educational and perhaps the residence qualifications of our various jurisdictions. But it would outlaw requirements as to State or National citizenship as a prerequisite to admission. Whether an oath to support the Constitution and laws of the United States and of a particular State could be required of an alien applicant who owed allegiance to a foreign state and its constitution and laws would pose an interesting question." The

43 Mrs. Eleanor Roosevelt, New York Times, July 23. 1952. p. 14.

44 Appendix C, Report, Committee on Peace and Law, February 1. 1952. p. 31. 45 This is the function of the International Court of Justice in adhering to which the Connally reservation was attached providing that it "shall not apply to disputes with regard to matters which are essentially within the domestic jurisdiction of the United States as determined by the United States." [Emphasis added. 1

46 The pros and cons of this suggested treaty are discussed in two articles in the American Bar Association Journal for August 1952. at pp. 641 and 644.

47 Art. VIII-2 of the proposed treaty with Israel.

48 New York: Judiciary Law, sec. 466, requires that all attorneys take the constitutional oath of office in open court and subscribe to the same in a roll book. The New York Constitution, art. XIII, sec. 1, sets forth the constitutional oath. It requires that the person swear that he will support the Constitution of the United States and the Constitution of the State of New York. Judiciary Law, sec. 467, requires before a person may practice law that he must file an affidavit stating that he is a natural-born citizen of the United States, or, if not a natural-born citizen, he must state where and when he was naturalized. California: Secs. 6060-6067, Deering's California Codes-Business and Professional Codes (1951) require an applicant for admission to the practice of law to be a citizen of the United States and to take an oath to support the Constitution of the United States and the Constitution of California.

New Jersey: New Jersey Statutes Annotated. sec. 41: 1-1. 1-2. require all applicants for admission to the bar to swear that they will support the Constitution of the United States and the Constitution of New Jersey. Such applicants must also swear that they will bear true faith and allegiance to the Constitution of the United States and to the governments established in the United States under the authority of the people. So far as can be determined, there is no statutory requirement of citizenship.

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