Imagini ale paginilor
PDF
ePub

Mr. HATCH. And I hope we won't do anything about the bad ones they do. But isn't the question not whether we can ratify the y when it comes to us if we can lick it and reject it if we don't, whether we can transfer those fundamental legislative, judicial, executive powers so that they are no longer ours, so that they not be recaptured, that they are somebody else's? And I think anot do it.

Sator BRICKER. You say we cannot, but I don't know. I am ad of it. I never thought the welfare clause of the Constitution, -preamble of the Constitution, gave any power to the Federal

ment. A few years ago the Court said it did, and now we are to it, and we have entered into a new field of law.

zator SMITH. Isn't that the point, Senator Bricker? What you aying is you don't think you can do it, but it depends on what -Spreme Court says.

Mr. HATCH. The Constitution is what the Supreme Court says. ator SMITH. That is a different color there. It depends on the exion of the Supreme Court at the time the question arises, tit?

M. HATCH. I am quite frank to tell you that I was very much intal to hear the Ĉircuit Court of Appeals of the Second Circuit at liquor case say that the complainants there had not shown personal rights or property rights sufficiently impaired by this tution or by this treaty to justify the inquiry as to whether 1nconstitutional or not.

Mr. SMITHEY. In connection with the line of reasoning that SenBricker has been pursuing, I notice in the report we have reto earlier, the February 1, 1952, report of the standing come. it is stated there at page 8, "Indeed, it is asserted"-and it reference to the report of the section of international and Parative law to the house of delegates of the American Bar socation, midwinter meeting, February 25-26, 1952, that:

T

as the requirement of indictment by grand jury and trial by jury are d. these apply only to trials in the Federal courts, and can have no to an international court set up by a group of nations in the exertheir treaty making power. There is no reason why such courts may ted in the exercise of the treatymaking power.

, if the report of the section of international and comparative fthe American Bar is correct, then would the international draft for the criminal court conflict with the Constitution under Joint Resolution 43?

HATCH. If their statement is correct, would it conflict? SMITHEY. That is right. You will remember that article 37 draft statute for an international criminal court provides l shall be without a jury.

HATCH. If their statement is correct, I would think it would I don't think their statement is correct.

SMITHEY. But certainly there is a body of legal opinion in the States which is opposed to your thought, that being the secInternational comparative law of the American Bar Associathat correct?

HATCH. Opposed to my thought that it will be an impairment. MITHEY. That it would not be a conflict with the Constitution. Aert that it would not conflict with the Constitution.

Mr. HATCH. Of course, they overlook one thing. I see your poi It is because they say it binds only the Federal Government. We that gets down to this fundamentally, doesn't it: That the Bill Rights is not a set of rights and privileges and immunities and wł have you given to the citizens of this country by the Constitution or the Government. Those rights are rights that the Government nev had to give. Those are rights that the people, under the ninth amer ment, reserve unto themselves. And, therefore, how can it be said th it is binding only on the Federal Government and would not infrin on the Constitution? It seems to me it would.

Mr. SMITHEY. I do not mean to contend with you on the point, a I don't know, but I don't think that you

Mr. HATCH. I didn't get your point?

Mr. SMITHEY. I don't know. I don't think that you think that disagree with you. What I want to present to you is that there is considerable body of thought which would allow a trial without a ju for an offense committed in the United States for a so-called intern tional crime. And if that amendment is adopted, Senate Joint Res lution 43, they would assert that it is not in conflict with the Constit tion, and they might be sustained.

Mr. HATCH. Well, they might be.

Mr. SMITHEY. Is that correct?

Mr. HATCH. But how in the world they could be, I will never kno Senator BRICKER. That is the reason I got section 2. I don't kno Mr. FINCH. This is before my turn. However, I would like to ma a statement on that. I wrote an article in the American Bar Journ The CHAIRMAN. Suppose we call you as the next witness, Mr. Find Mr. Fixen. I do not want to make this my main testimony. would just like to make a statement on this question on this particul point.

I said I wrote an article in the American Bar Journal on the questi of the international criminal court. And, of course, I do not agree all with that statement which was made from the section of intern tional and comparative law of the American Bar Association.

But answering your particular question as to the effect that th view might have upon Senate Joint Resolution 43, this second senten of the American bar proposal says:

A treaty shall become effective as internal on the United States only throu legislation by Congress which would be valid in the absence of the treaty. Now, you would have to answer your question not on the opini of these members of the section of international and comparative la but whether the Congress of the United States, under this amendmen could enact such legislation in violation of the Constitution. I say couldn't.

Senator BRICKER. I hope that is exactly right.

Mr. Drusen. It is the second sentence, in other words, rath than the first.

Mr. HOLMAN, The "which clause."

Mr. FINCH. Not the which clause.

Senator BRICKER. The second section of my amendment.

Mr. FINCH. It is the second section of our amendment, too.

The CHAIRMAN. Mr. Ober?

Mr. HOLMAN. Mr. Ober will be here tomorrow.

CHAIRMAN. Mr. Deutsch?

you proceed, Mr. Deutsch, and give your full name and

TATEMENT OF EBERHARD P. DEUTSCH, MEMBER OF THE NEW RLEANS BAR ASSOCIATION, THE LOUISIANA BAR ASSOCIATION, AND THE AMERICAN BAR ASSOCIATION'S STANDING COMMITTEE IN PEACE AND LAW THROUGH UNITED NATIONS

V. DEUTSCH. Mr. Chairman and members of the committee, my is Eberhard P. Deutsch, a member of the Louisiana and New Pas bar and a member of the American Bar Association's standing ittee on peace and law through United Nations. I give that ation despite my lack of personal charm.

Fast. I apologize for not having a multiple copy of this brief statewhich I have prepared on my way to Washington, and let me the liberty of explaining that I have just arrived from New As where the tragic loss of my esteemed partner, Mr. Harry F. Jr., 3 days ago in the crash of an airplane in the Gulf of preoccupied my time and did not enable me to prepare adey for this meeting. That death has just been confirmed. e let me plunge directly into the subject of your inquiry with Satement that, in my humble opinion, it is impossible to overemze the significance of present constitutionally possible abuses of atymaking power in the United States.

Te unquestionable objective of at least some of the opponents of tional limitation of that power is early elimination of State al political entities except as administrative agencies of the and eventual elimination of the Government of the United except perhaps as an administrative agency of a supranational body politic.

T

[ocr errors]

are told that unless we are willing to extend, by self-executing ocal commercial and professional privileges to nationals of tries, we shall have to sacrifice valuable rights of foreign leven the availability of American dentists to look after our while we are touring abroad.

similar suavity, albeit with greater logic, we were assured that of article II of the Charter of the United Nations gave us protection against interference by that world organization in Lestic affairs.

today even the opponents of constitutional limitations on the aking power can no longer sustain their confidence in underand reservations as adequate safeguards against the dese potentialities of international conventions, in light of the sertion of the Department of State, with the express sanction then President of the United States, that "there is no longer difference between domestic and foreign affairs."

dificult to believe that objections to a constitutional bulwark direct legislative participation by Poland and the Argentine ocal affairs of Louisiana and North Dakota and Ohio and an be rooted in good faith.

nesis of advocacy of continuance of constitutional sanction doctrine of Missouri against Holland is the unavowed deteron to bring control of local government within national, and

then international, orbits, by fostering the confection of self-executi foreign conventions dealing with matters of domestic concern.

The gilding of multipartite treaties with such idealistic immedia goals as the prevention of genocide and the promotion of hum: rights cannot conceal their underlying long-range objective to destr local government while expanding the sphere of national power a setting a course toward world totalitarianism.

The Charter of the United Nations itself has already given rise a threatened destruction of local self-government by a near-successf attack on the alien land law of California; and the same instrume has recently been cited with great force as a prohibition of race segi gation in the District of Columbia, in Kansas, and in other Stat Missouri against Holland demonstrated the impotence of constit tional provisions to purge national legislation enacted under intern tional convention dealing with a salutary immediate objective, of i ultimate impetus toward an unhealthy sociological thesis.

The expanding danger to constitutional government from the do trine of Missouri v. Holland beyond the sphere of States' righ under the 10th amendment was pointed some years ago by an attem at express circumvention of the 18th amendment by treaty permittin the carriage on foreign vessels into ports of the United States of co traband intoxicants labeled "sea stores."

This constitutional deviation failed to achieve judicial sanction on by the questionable saving grace of a holding that the litigants attac ing it lacked sufficient juridical interest to sustain their assault.

The 1st and 14th amendments are no more immune from transgre sion by international government than were the 10th and 18th.

Worthy as may be the superficial objectives of such a convention that on the gathering and international transmission of news and righ of correction (already signed for the United States) and that c freedom of information, they contain the festering germs of destru tion of a free press beyond the antiseptic properties of the first amend

ment.

The American Bar Association sponsors provisions for amendmen of the Constitution of the United States which provide, as revised i cryptic form by the members of the association's committee on pea and law through United Nations, and I make one small change in th formal draft which has been submitted, and in which I believe m colleagues concur:

A provision of a treaty which conflicts with this Constitution shall not be any force or effect. A treaty shall become effective as internal law in the Unite States only through legislation which wold be valid in the absence of treaty. Executive agreements shall be subject to regulation by the Congress and the limitations imposed on treaties by this article.

These provisions, recently introduced as Senate Joint Resolution 4 by Senator Watkins and becoming known as the Watkins amenc mert, would accomplish, succinctly, the following imperative results 1. All doubt as to the authority of the Congress over the making c executive agreements and to the supremacy of treaties and executiv agreements over constitutional provisions would be allayed for a time.

2. Treaties and executive agreements would no longer be self-execut ing as internal law, but would achieve viable force within the Unite

es only by legislation, national or local, just as in practically all De countries.

The dangerous doctrine of Missouri v. Holland, under which the tutional scope of Federal power in matters of domestic concern be expanded indefinitely by the confection of treaties and execuagreements, will be abrogated.

Ay compromise with these broad objectives would be unworthy The militant ideals of the traditionally aggressive American spirit. cherished freedoms are under attack. They can be defended, even raised to new heights in world history, by the erection of a constitutional bulwark as the American Bar Association recomThey may be lost by failure candidly to meet the issue. And I quote:

I the saddest epitaph which can be carved in memory of a vanished liberty at it was lost because its possessors failed to stretch forth a saving hand Le yet there was time.

The CHAIRMAN. Senator Bricker, do you have any questions?

ator BRICKER. I have one question. Take Missouri v. Holland, h, as a duck shooter, I think has had a very good effect and has the national interest. If your amendment were adopted, the Tch clause," I think it is generally conceded that the Federal Goveat had no jurisdiction under it. At least that was the intertation of the courts anyway prior to the time of the treaty. How that be handled?

M: DEUTSCH. It would have to be handled by State law or by some of agreement between the State and nation such as we have in of our other methods of handling situations of that sort, like social security program, for instance.

ator BRICKER. It would have to either be handled individually States or by an agreement between the Federal Government and

Mates.

M: DEUTSCH. Yes.

tator BRICKER. Or else there could not be any effective enforce

DEUTSCH. I think we have effective State enforcement of these

ator BRICKER. Or you would have to have the Congress with the reting support of the courts further stretching the commerce

DEUTSCH. Exactly, the commerce or perhaps other clauses. ator BRICKER. I think it would be doing a distortion of it rather

DEUTSCH. The truth of the matter is that the two decisions which pheld that, and which in my humble opinion were right, were tcourt decisions. Mr. Justice Holmes did give them sort of a aded sanction when he said, "We assume for our purposes that →derisions were correct." But it was not a direct affirmance in any fthe word. It is quite possible that the Supreme Court, as now after constituted, may hold that that is a matter perfectly well the Federal domain, and there are many, if I am not mistaken, See they would.

« ÎnapoiContinuă »